Spemann v Department of Corrections

[2018] NZHC 2576

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-259

[2018] NZHC 2576

BETWEEN

GINO SPEMANN

Appellant

AND

DEPARTMENT OF CORRECTIONS

Respondent

Hearing:	1 October 2018
Appearances:	T J Darby (on behalf of A Hart) for Appellant S A Wilson for Respondent
Judgment:	1 October 2018

(ORAL) JUDGMENT OF LANG J

[on appeal against sentence]

SPEMANN v DEPARTMENT OF CORRECTIONS [2018] NZHC 2576 [1 October 2018]

[1]                  On 28 November 2017, Mr Spemann was sentenced to five months imprisonment on a charge of driving with excess breath alcohol (third or subsequent). Mr Spemann was released from prison on 20 December 2017. Two days earlier, on 18 December 2017, he was inducted into the conditions on which he would be released. One of these was a condition prohibiting him from consuming alcohol.

[2]                  On 3 May 2018, Mr Spemann was directed to undergo a random alcohol and drug test administered by the Department of Corrections. This returned a negative result for drugs, but a positive result for alcohol. This led to the Department of Corrections laying a charge of breaching prison release conditions.

[3]                  Mr  Spemann  pleaded  guilty  to  the  charge,  and  on  12   July   2018  Judge Tremewan sentenced him to 12 months supervision.1 The conditions of the supervision were to be the same as those contained in the release conditions. As a result, Mr Spemann became subject to a condition not to consume alcohol for a further period of 12 months from 12 July 2018. Mr Spemann appeals against sentence on the basis that the sentence of supervision was wrong in principle and/or manifestly excessive.

The appeal

[4]                  Mr Spemann’s first argument is that the Judge erred in imposing a sentence of supervision because she failed to have proper regard to the requirements contained in s 46 of the Sentencing Act 2002 (the Act). Section 46 prohibits a court from imposing a sentence of supervision unless it is satisfied that such a sentence would reduce the likelihood of further offending by the offender through his or her rehabilitation and reintegration into the community. Mr Darby points out that the Judge’s sentencing remarks make no reference to s 46. As a result, he submits the Judge failed to take into account a mandatory requirement and the sentence she imposed is accordingly flawed as a result.

[5]                  I do not accept this submission. Judge Tremewan is an extremely experienced Judge who sits regularly in the Alcohol and Other Drug Treatment (AODT) Court. It

1      New Zealand Police v Spemann [2018] NZDC 19113.

is clear from her sentencing remarks that she knew Mr Spemann well, having dealt with him previously in the AODT Court. Her contact with Mr Spemann evidently took place prior to the point at which he was sentenced on the charge of driving with excess breath alcohol on 28 November 2017. I have no doubt that the Judge knew of the restriction contained in s 46, and that she believed a sentence of supervision would reduce the likelihood of further offending by Mr Spemann.

[6]                  Mr Spemann has now been convicted of driving with excess breath alcohol on no fewer than seven occasions. These form by far the greatest proportion of his previous convictions. It is clear that he has a problem with drink driving and that, as the Judge found, he will continue to pose a risk to the community if he continues to drink and drive.

[7]                  The Judge was obviously anxious to select a sentence that addressed the risk that he poses to the community. A fine or conviction and discharge, the sentencing alternatives advanced by Mr Spemann’s counsel before the Judge, would obviously not meet this risk. Given that Mr Spemann has now been prepared to drink and drive on no fewer than seven separate occasions, it is clear that convictions alone are not sufficient to deter him from future offending. I have little doubt that a fine or conviction and discharge would have no appreciable effect on him. Indeed, he is likely to regard such sentences as being a lenient outcome.

[8]                  In those circumstances it seems to me that a sentence of supervision was a wholly suitable outcome because it enables the Corrections authorities to monitor  Mr Spemann closely in the future. In particular, it will permit them to test him regularly for the consumption of alcohol. That is the circumstance in which he will present as a risk to the community because he may well revert to driving whilst affected by alcohol. Given that background I consider the Judge chose an apt sentence and the only real issue is whether the sentence was too long.

[9]                  Mr Spemann’s release conditions were to expire on 9 September 2018. The Judge therefore needed to select a sentence of supervision sufficient to ensure he was monitored for a reasonable period from the date of sentencing.

[10]              Section 45(2) of the Act requires a sentence of supervision to be not less than six months in duration and not more than one year. Mr Darby submits that if a sentence of supervision was to be imposed, it should have been for a term of around six months rather than the maximum of 12 months. In the present case, however, a sentence of six months supervision would be of limited practical effect because it would result in Mr Spemann being subject to oversight for a little over four months after the expiration of his prison release conditions. In my view that would be insufficient to ensure he is abiding by the prohibition on consumption of alcohol.

[11]              The sentence imposed by the Judge means that Mr Spemann will now be subject to oversight until 12 July 2019. That is a little over nine months after the prison release conditions expired. I consider that to be an appropriate period for which Mr Spemann should continue to be subject to oversight so that his risk of offending again by drinking and driving will be minimised.

[12]              I therefore accept Ms Wilson’s submission for the respondent that the maximum sentence of 12 months supervision was appropriate in the circumstances of the present case. It cannot be described as manifestly excessive so as to justify this Court intervening on appeal.

Result

[13]The appeal against sentence is accordingly dismissed.

Lang J

Solicitors:

Hart & Associates, Auckland Crown Solicitor, Auckland