Soper v Police

[2015] NZHC 2555

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2015-425-33 [2015] NZHC 2555

BETWEEN

REGAN KEVIN SOPER

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	19 October 2015
Appearances:	T Williams for Appellant M McClenaghan for Respondent
Judgment:	19 October 2015

(ORAL) JUDGMENT OF LANG J [on appeal against sentence]

SOPER v NEW ZEALAND POLICE [2015] NZHC 2555 [19 October 2015]

[1]      Mr Soper pleaded guilty in the District Court to charges of driving with excess breath alcohol and driving whilst disqualified.   On 8 July 2015, Judge Callaghan sentenced him to 18 months imprisonment.1    Mr Soper appeals to this Court on the basis that the Judge imposed a sentence that was manifestly excessive.

The facts

[2]      The facts giving rise to the offending are unremarkable. At about 4.25 am on

4 April 2015, Mr Soper was driving a motor vehicle in Gore.  When a police patrol vehicle stopped him, he got out of his vehicle and began walking towards the patrol car.   The officers in the patrol car immediately observed that he was affected by alcohol.   When questioned, he admitted that he had been drinking throughout the night and that he was driving whilst disqualified. A subsequent evidential breath test revealed that Mr Soper’s breath contained 1018 micrograms of alcohol per litre of breath.

The Judge’s decision

[3]      The Judge took a starting point of 21 months imprisonment in respect of both charges.   He did so on the basis that this was Mr Soper’s eighth conviction for driving with excess breath or blood alcohol and his sixth conviction for driving whilst disqualified.  As a result, both charges had the aggravating factor of being the third or subsequent occasion on which Mr Soper had been convicted of that type of offending.

[4]      The  Judge  then  applied  an  uplift  of  three  months  to  reflect  Mr  Soper’s previous convictions.  This produced an end sentence of 24 months imprisonment before taking into account mitigating factors.  The Judge gave Mr Soper a credit of six months, or 25 per cent, to reflect his early guilty pleas.  This produced the end

sentence of 18 months imprisonment.

1      Police v Soper [2015] NZDC 13102.

The case on appeal

[5]      Ms Williams submits that the Judge erred in several respects in imposing the sentence of 18 months imprisonment.  First, she submits that the Judge should not have applied an uplift of three months to reflect Mr Soper’s previous convictions. She contends that the Judge must already have taken that factor into account when selecting a starting point of 21 months imprisonment.

[6]      Next,  Ms  Williams  submits  that  the  Judge  failed  to  take  into  account additional mitigating factors.  These include the fact that Mr Soper acknowledged to the writer of the pre-sentence report that he was an alcoholic and that he cannot drink.  In addition, he had contacted the Bridge Programme prior to sentencing and made preliminary enquiries as to how to rejoin the programme.  It appears that Mr Soper has attended the Bridge Programme on at least two previous occasions but, until now, has never fully acknowledged the extent of his alcoholism.

Decision

[7]      I accept Ms Williams’ first submission.   Had Mr Soper appeared as a first offender, the Judge would not have selected a starting point of 21 months imprisonment.  In all probability a fine would have been imposed, together with a period of disqualification for six months.

[8]      In order to arrive at a starting point of 21 months imprisonment, the Judge had to take into account Mr Soper’s previous convictions.   The Judge therefore engaged in double-counting when he added an uplift to reflect previous convictions. For that reason the uplift of three months needs to be removed.

[9]      I am satisfied, however, that the Judge was entitled to select a starting point of 21 months imprisonment.  Mr Soper’s offending had several seriously aggravating factors.  The first and most obvious of these is the breath alcohol reading in respect of the present offending.   He has also been convicted of similar offending on numerous previous occasions.  The last of these occurred on 29 September 2013, and he received a sentence of home detention on that charge on 12 February 2014.

[10]    On 12 May 2011, Mr Soper was sentenced to two years three months imprisonment on further charges of driving with excess breath alcohol, and driving whilst  disqualified.     His  breath  alcohol  reading  on  that  occasion  was  1102 micrograms  of  alcohol  per  litre  of  breath.     Furthermore,  as  counsel  for  the respondent points out, Mr Soper has been convicted on four occasions of driving with excess or blood alcohol within a period of five years and three months.  There was just a 12 month gap between offending that occurred in 2010 and 2011.

[11]     Mr Soper has  now  been  subject  to  the full  range  of  available  penalties. Sentences of both home detention and imprisonment have failed to deter him from driving whilst under the influence of alcohol.  For that reason I do not consider that the overall starting point of 21 months imprisonment is outside the available range.

[12]     I accept, as far as it goes, Ms Williams’ submission that the Judge could have taken additional mitigating factors into account, but it seems to me that he cannot be criticised for not doing so.  Mr Soper’s offending history is now such that he needs to do a great deal more than he has done on this occasion to demonstrate a serious determination  to  overcome his  proclivity to  drive whilst  under the influence of alcohol.    Merely  contacting  a  provider  such  as  the  Bridge  Programme  is  not sufficient to justify a discrete discount.   It will be up to Mr Soper in the future to prove that he is genuine in acknowledging that he is an alcoholic and that he is determined to deal with that issue.

[13]     For that reason I do not consider the Judge was obliged to apply any further discount in respect of the remaining mitigating factors other than the guilty pleas.

[14]     I   consider   that   an   appropriate   starting   point   is   one   of   21   months imprisonment.  From that, I would allow a discount of six months, which is perhaps on the generous side, but reflects the rounding up of what would otherwise be the usual discount for early guilty pleas.  This produces an end sentence of 15 months imprisonment.

Result

[15]     The existing sentence of 18 months imprisonment is accordingly quashed, and is replaced with a sentence of 15 months imprisonment.  The ancillary orders

made by the Judge are confirmed.

Lang J

Solicitors:

Preston Russell Law Invercargill

Tina Williams Law, Balclutha