Spooner v Police HC Rotorua CRI 2010-463-55

[2010] NZHC 1789

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2010-463-55

TIWAI ANDREW SPOONER

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         31 August 2010

Appearances: O Brittain for the Appellant

A Hill for the Respondent

Judgment:      31 August 2010

ORAL JUDGMENT OF WOODHOUSE J

Solicitors:

Ms O Brittain, Harry Edward, Solicitors, Rotorua

Mr A Hill, Gordon Pilditch, Office of the Crown Solicitor, Rotorua

SPOONER V NEW ZEALAND POLICE HC ROT CRI 2010-463-55 31 August 2010

[1]      Mr Spooner pleaded guilty to an excess breath alcohol charge.   He was sentenced to imprisonment for 12 months.

[2]      He has appealed against the sentence on the grounds that the starting point of

18 months imprisonment was too high and that the Judge put undue weight on previous convictions which are, it was submitted, historic.

[3]      The maximum penalty for Mr Spooner’s offence, being a third or subsequent charge, is 2 years imprisonment.  The offence occurred in April 2010.  The breath alcohol level was 887 micrograms.

[4]      Mr Spooner is 43 years old.  Facts relating to the offending, and relating to

Mr Spooner personally, are set out in the pre-sentence as follows:

In terms of his current offence, Mr Spooner is assessed as having no regard for the law.   He revealed that he drove himself to a fishing spot some distance from his residence and took with him a box of alcohol.   On his return, he drove straight to a local pub, consumed more alcohol and intended to drive home afterwards.  He gave no indication that he had any remorse about his current offending, other than the consequences related to his employment.   Additionally, Mr Spooner spoke generally about occasions where he consumed alcohol with friends.  He mentioned situations where his friends would make the decision to drive intoxicated; however, he felt he was the safest person to drive intoxicated and would do so accordingly.  It is of concern that he does not view driving intoxicated as an issue.

[5]      A little earlier in the report the report writer said:

Mr Spooner expressed little insight into his offending, explaining that he contemplated the legal consequences of driving intoxicated; however, “it didn’t matter because I didn’t think I was going to get pulled up”.  He felt in control and stated that “if I was highly intoxicated I wouldn’t have found the key hole”.  He minimised his offending by stating that “I knew I was over [the limit], but I knew I wasn’t stupid enough to cause an accident”.   He expressed limited remorse, revealing that he was in the process of obtaining his restricted licence as he could have been promoted to foreman with [his employer].

[6]      The  report  records  that  Mr  Spooner  indicated  that  he  would  attend counselling if ordered to do so by the Court and that his history of community based sentences supports this.

[7]      Mr Spooner’s list of convictions records five previous convictions for drink driving offences.   However, Mr Spooner, on his conviction in the District Court, disputed the first recorded offence which was in 1988 and is recorded as “careless use causing death through drink”.  On remanding him for sentence the Judge directed that inquiries be made in respect of that first offence.  It appears that the Police were unable to provide any relevant evidence in respect of it and Ms Brittain, for the appellant, accepts that the Judge appears to have left this offence to one side.  I will certainly do so for the purposes of this appeal.  That leaves four previous convictions prior to the present conviction.  Three were in the 1990s and to that extent might be described as “historic”.  There was a conviction in November 1990 with a level of

927  micrograms.    Mr  Spooner  received  a  sentence  of  periodic  detention  of  six months and was disqualified for one year.  There was an offence in April 1993 with a level of 668 micrograms.  There was a sentence of two months imprisonment and

18 months disqualification.  There was an offence in December 1994 with a level of

631 micrograms.  There was a sentence of 7 months periodic detention, supervision for one year and indefinite disqualification.

[8]      The fourth offence occurred on 25 April 2007.   That is to say, three years before the present offence was committed.   The breath alcohol level was 520 micrograms.   On that occasion Mr Spooner received a sentence of 85 hours community work and was disqualified for one year and 1 day.

[9]      He has 10 convictions for driving while disqualified.   He has a total of 23 convictions for driving offences dating back to 1985.   There has been no driving offence since 1995, apart from the excess breath alcohol offence in 2007.

[10]     In  sentencing  Mr  Spooner  Judge  McGuire  took  account  of  opportunities given to Mr Spooner to do something about his drink driving problems, including alternative sentences.  The Judge also took full account of the comments in the pre- sentence report.  He said:

[3]       So you had the opportunity in 1994 to get your head round the drink driving thing and not do it again.  You had counselling to help you with that. You also had to persuade the authorities that you were a good risk when you got your licence back, that you were not going to drink and drive again. Well, you have done it twice more since then.

[4]       So that is why the report writer assesses you as having no regard to the law.  You are one of these people, and as I have already said, there are thousands of them out there, who simply think, “It doesn’t matter, I’ll just drive.” …

[5]       Being your sixth [sic] offence is getting close to the upper level of sentencing for this type of offence, the maximum penalty for which is two years imprisonment.  I am prepared to take a starting point of 18 months and reduce it by a full third for your early plea of guilty.   That results in a sentence today of 12 months imprisonment.

[11]     Conditions on release were imposed for a period of six months relating to completion of a drug and alcohol programme and attendance at a Tikanga Maori programme.  Mr Spooner was disqualified from holding or obtaining a driver licence for 18 months.  Existing fines of $686 were remitted.

[12]     For Mr Spooner, Ms Brittain understandably has emphasised the dates of three of the four prior excess breath alcohol convictions were 20, 17 and 16 years ago.  She noted, and it is certainly relevant, that there was no report of bad driving. Mr Spooner it appears was simply stopped by a roadside police officer for a random check.  This aspect can be compared with some of the cases referred to in Mr Hill’s submissions  for  the  respondent.    Ms  Brittain  acknowledged  the  force  of  the probation officer’s comments about Mr Spooner’s attitude but advised me that Mr Spooner considers he was unfairly treated by the report writer.  The fact that he is willing to attend appropriate counselling and courses was emphasised.  It was also noted in his support, and it is relevant, that he was in stable employment.

[13]     For the Police Mr Hill emphasised that the critical inquiry in the end is whether the final sentence is manifestly excessive.

[14]     In my judgment the appropriate way to consider this appeal is to focus on the starting point of 18 months imprisonment.  That is because full credit for the guilty plea of one-third was given resulting in the end sentence of 12 months.  A starting point  of  18  months imprisonment  for  this  offending may be  severe,  but  in  my judgment it is not manifestly excessive.   It is necessary to look at this particular offence and offending in the round.   It is entirely correct that three of the four previous offences are what might be called “historic”.  But the fact that they are old does not mean that they can be ignored.  They must be brought into account.   But

the dates of the earlier offending are relevant to an assessment of the current offending.  The points that go most strongly against Mr Spooner, in addition to the list of previous convictions, including driving while disqualified, are the reasonably recent excess breath alcohol offence in April 2007 and what is essentially a contemptuous attitude to the law and indifference to his responsibilities as a driver. The observations I have quoted from the pre-sentence report are of real concern.

[15]     I have had regard to relevant authorities including the decision of Justice Wild in Clotworthy[1] and decisions of the Court of Appeal in Stoves[2] and McQuillan[3]. Mr Hill also referred to decisions in this Court of Wilson v Police[4]  and Marshall v Police.[5]      I  accept  Ms  Brittain’s  submission  that  there  are  relevant  differences between the offending in this case and that in the cases of Wilson.  I have taken these

factors into account, but for the reasons just mentioned I am not persuaded that the sentence in this case was manifestly excessive.

[1] Clotworthy v Police (2003) 20 CRNZ 439 (HC).

[2] R v Stoves CA264/06, 7 November 2006.

[3] R v McQuillan CA129/04, 12 August 2004.

[4] Wilson v Police HC Rotorua, CRI 2005-463-81, 2 December 2005, Heath J.

[5] Marshall v Police HC Hamilton, CRI 2010-419-31, 4 May 2010, Ellis J.

[16]     Accordingly the appeal is dismissed.

Peter Woodhouse J