Stonebanks v Police

[2016] NZHC 3093

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2016-425-40 [2016] NZHC 3093

IN THE MATTER	of an appeal against sentence
BETWEEN	IAN CLIFFORD STONEBANKS Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	12 December 2016
Appearances:	K M Barker for Appellant R W Donnelly for Respondent
Judgment:	16 December 2016

JUDGMENT OF NICHOLAS DAVIDSON J (APPEAL AGAINST SENTENCE)

Appeal against sentence

[1]      Mr Stonebanks appeals against a sentence of home detention of six months and 21 days and a disqualification period of 20 months imposed on him in the Invercargill District Court on 25 October 2016.1

[2]      The  sentence  and  disqualification  were  imposed  for  his  third  and  fourth drink-driving   offences,   and   two   other   driving   offences,   all   committed   on

12 August 2016.

[3]      At 8.11pm on 12 August 2016 he drove with excess blood alcohol (third or subsequent), with a level of 127 milligrams of alcohol per 100 millilitres of blood.

1      Police v Stonebanks [2016] NZDC 21233.

He elected to have a blood test after returning a positive initial breath test, so was not charged with drink-driving that day.  He was forbidden from driving for 12 hours.

[4]      At 9.25pm on the same day he was stopped again, and found to have a level of 477 micrograms of alcohol per litre of breath.  He was also charged with failing to stop  for  red/blue  flashing  lights,  and  failing  to  comply with  the  prohibition  on driving, both of which are fineable offences.

[5]      The learned District Court Judge adopted a global starting point of 18 months imprisonment and reduced this by 25 per cent for the guilty pleas, and then halved that to reach an end sentence of home detention for six months and 21 days.

Grounds of appeal

[6]      Ms Barker, counsel for Mr Stonebanks, in carefully mounted submissions, referred to Clotworthy v Police,2 the judgment of Wild J which is often considered in sentencing for drink-driving cases. Issue is taken with the starting point, length of disqualification  period,  and  imposition  of home detention  in  lieu  of community detention.

[7]      Applying the measures  set out in  Clotworthy, Ms Barker referred to the alcohol levels and submitted they were relatively low in the scheme of drink-driving offending.   It is six years since Mr Stonebanks’ last drink-driving offence in 2010 and 13 years since he was convicted for the same offence in 2003.  Ms Barker put it that the sentences under appeal relate to offending (third and fourth convictions) within a large window.

[8]     The second offence that evening is seriously aggravating.   Ms Barker acknowledges this.   Mr Stonebanks’ explanation that he made a snap decision to drive home so the vehicle could be parked up safely that night does not wash.  Nor does the fact that he elected to have a blood test on the first occasion, and was under the misapprehension he would be under the legal limit.  The fact is he was over the

legal limit, and he had been prohibited from driving.

2      Clotworthy v Police (2003) 20 CRNZ 439 (HC).

[9]      I do not see the close proximity of the offending, a few hours apart, as morphing into a single offence on that evening.   It was a defiant act, against a specific prohibition, and after a positive breath alcohol test.

[10]     Failing  to  stop  quickly  when  the  police  lights  were  employed  is  less important as, while non compliant, he wanted to park at his home and he knew the police would stop there as well.   I would not treat that as an aggravating feature. The fact that early guilty pleas were entered, is in my view of little weight.   No defence was available.

[11]     His  previous  offending  reaches  back  to  2003  and  2010  but  both  for drink-driving.  There is no remorse or reflection evident after his (now) four time offending.

[12]     Ms Barker refers to a case where sentences were imposed for drink-driving offences in close succession.     In Pitman v Police,3  relevant offences had been committed in 2013, 2009, 2007 and 2001.   The four convictions were spread over some 14 years.  The sentence was four months imprisonment but a starting point was not specified.  There was a guilty plea so the starting point is a matter of inference, but Mr Barker submits that it was probably in the region of five months.  She uses Pitman  as  an  analogy  to  say  a  starting  point  for  Mr  Stonebanks’  third  EBA conviction might be five months imprisonment.  Here, the Judge adopted a starting

point of 18 months imprisonment which, referring to Pitman, suggests a 13 month uplift on a “fourth” conviction for drink-driving and two fine only offences.  That of course misses the point that there are here third and fourth EBA convictions, and they are not to be treated as a single offending.

[13]     Based on that argument, Ms Barker submitted the uplift should have been four months imprisonment, to reach an overall end starting point of nine months imprisonment.

[14]   Ms Barker also refers to an appeal against a sentence of six months imprisonment for a fourth EBA conviction, with a very high excess breath alcohol

3      Pitman v Police [2015] NZHC 205.

level, and driver fault.4     This was the fourth such offence over four years. The starting point adopted in the District Court was eight to nine months imprisonment, held on appeal to be within range.  Ms Barker submits that this leads to a starting point lower than eight or nine months imprisonment in the present case, and again advocates for a starting point of five months imprisonment.

[15]     In a further case, Ching-Joyce v Police,5  the appellant was being sentenced on seventh and eighth convictions for drink-driving, separated by eight days.  The offending was worse than in this case.   There were also charges of driving while suspended, and possession of a knife.  A starting point of 15 months imprisonment was adopted, with an uplift of six months for the seventh drink-driving offence, and a further uplift of two months for driving while suspended and possession of a knife. An overall starting point was 23 months imprisonment.  The Court held on appeal the end  point  of 17  months  imprisonment  was  stern,  but  not  outside the range available.   The uplift for the first of the two convictions did not result in double counting and was moderated to negate that concern.

[16]     In Sam v Police,6  the appellant was sentenced to cumulative terms of four months  imprisonment  for  third  and  fourth  convictions  for  drink-driving.    One offence was for refusing to provide a blood specimen, the other six weeks later for driving with a level of 817 micrograms of alcohol per litre of breath.  The Court held that cumulative sentences were available, but otherwise concurrent sentences with a starting point 12 months imprisonment were justifiable having regard to the high alcohol level, the closeness of the two previous convictions, the manner of driving, ineffective previous sentences, and that the second offence had been committed while on bail. The overall sentence of eight months imprisonment was not held to be excessive.   Ms Barker submits this was more serious than Mr Stonebanks’ case, given the higher levels and that Mr Sam was on bail when the second offence occurred.   Analogised, the overall starting point in this case should be less than

12 months imprisonment, submits Ms Barker.

4      Ngatikai v Police [2014] NZHC 3294.

5      Ching-Joyce v Police [2016] NZHC 1019.

6      Sam v Police, HC Auckland CRI-2010-404-386, 4 November 2010.

[17]     In short, Ms Barker says the 18 months starting point was clearly excessive. A lower starting point should be adopted, discounting 25 per cent for the guilty pleas.   She submits that the starting point ought to have been nine months imprisonment with the guilty pleas allowing discount to seven months imprisonment, and at that level a sentence of community detention is available.

[18]     Mr Stonebanks has only been sentenced to fines and community work in the past.   Community detention does restrict his liberty and it is submitted would be sufficiently punitive and meet the principles of denunciation and deterrence. Further, Mr Stonebanks is 61 years of age, and the Judge recognised that home detention would spell the end of his employment for the duration but the pre-sentence report recorded that he would be re-employed at the end of any sentence.   Ms Barker submits that this was “highly likely” but not guaranteed. Indeed, it is a comparatively long period for an employer to keep a position open, so there is naturally some doubt about his return to that work.

[19]     Further,  Mr  Stonebanks  is  paying  off  a  mortgage,  and  so  the  loss  of employment will affect him. He has a 48 per cent disability in one of his arms following a 2012 injury, and is in the last part of his working life, so the prospect of finding employment in order to make savings is challenging.   His personal circumstances may be brought to account in fixing sentence, and these may tend to

make community detention more appropriate.7

[20]     Ms Barker said that  a sentence of community  detention which  curfewed Mr Stonebanks to his home for the entire weekend would address accountability, deterrence, and denouncement, and because Mr Stonebanks tends to drink at weekends, according to his record, that would be protective as well.   Of course it does mean that he may resort to drinking on other nights, not subject to curfew.  That seems entirely possible, but he would recognise that further EBA offending and driving while disqualified would lead almost inexorably to imprisonment.   Overall, Ms  Barker  advocates  for  community  detention  as  the  least  restrictive  outcome

appropriate.

7      Carran v Police [2013] NZHC 1450.

Disqualification

[21]     The disqualification of 20 months was the result of applying the totality principle  to  18  months  disqualification  for  each  of  the  drink-driving  offences. Ms Barker says that if the Court was dealing with the third conviction on its own, it would have adopted the minimum disqualification period of 12 months and one day, and that a disqualification longer than the minimum would have been justified. A period of 20 months is stern in itself but not excessive and responds to the defiant behaviour of Mr Stonebanks.

The Crown submissions

[22]     Mr Donnelly submits that the Court should not interfere with the sentence as it is within range applying accepted sentencing principles.8

[23]     Mr Donnelly refers to s 250 of the Criminal Procedure Act 2011, that the court must allow an appeal if it is satisfied there is an error in the sentence imposed and a different sentence should be imposed.  He says that adopting the framework provided in Clotworthy, and from the judgment of Whata J in Samson v Police, there

is guidance when setting starting points, as follows:9

(a)       No seriously or only moderately aggravating factors, 9 – 12 months; (b)       One or more seriously aggravating factors, 12 – 18 months;

(c)       Multiple offences with seriously aggravating factors, 18 – 20 months;

and

(d)Multiple offences and very serious aggravating factors (ie offending of the worst kind), 20 – 24 months.

[24]    With the aggravating features identified (four in total), the second band established by Whata J would lead to a starting point in the range of 12 – 18 months

imprisonment.    While  stern,  Mr  Donnelly  submits  that  the  18  months  is  an

8      Larkin v Ministry of Social Development [2015] NZHC 680 at [26].

9      Samson v Police [2015] NZHC 748 at [15].

appropriate response to the way the appellant behaved that evening, defiant of the prohibition that he drive whilst disqualified.

[25]     In his written submissions Mr Donnelly submitted that home detention was the least restrictive sentence available to the Court having regard to the relevant sentencing principles, particularly denunciation and deterrence.  The District Court Judge did consider community detention coupled with community work, but also considered that a sentence less restrictive than home detention would send the wrong message to the community.

[26]     In   the   discussion   on   appeal,   Mr   Donnelly   recognises   that   personal circumstances may have application to allow a sentence of home detention which indisputably would be otherwise appropriate.   That would reflect Mr Stonebanks’ age, health, and work opportunities. The point was not conceded.

Discussion

[27]     Counsel cited several judgments said to bear some similarities or indicate cases  in  which  similar  starting  points  have  been  imposed  which  have  been mentioned above.10    None of them are precisely on point, in the sense that they do not involve back-to-back offending of the kind present here. However, they provide some guidance, although “care must be taken when relying on precedent in this context other than as an initial indicator as to the suitability of sentence”.11

[28]     The first question is whether, in all the circumstances, the starting point of

18 months  was  too  high  such as  to  make the  eventual  end  sentence  manifestly excessive. I consider that it was. The presence of the second offending so soon after the first was a seriously aggravating factor, and one the Judge was entitled to take into account. However, he has I think overstated its significance in this case, and this

may be seen by his comment that:12

10     Pitman v Police, above n 3; Ngatikai v Police, above n 4; Ching-Joyce v Police, above n 5;

Sam v Police, above n 6.

11     Samson v Police, above n 9, at [17].

12     Police v Stonebanks, above n 1, at [11].

…if I stand back and look at the sentencing that could be imposed in this case because of that driving within such a short period of time, a starting point would have to be 18 months’ imprisonment.

[29]     The overall circumstances of the offending and the appellant’s history (which involves only some lesser instances of the relevant offending, and no sentences of imprisonment), are not consonant with the cases in which 18 month starting points have been  adopted. These tend to  have involved  high  alcohol  levels,  numerous previous convictions, and/or more serious corresponding driving-related charges.

[30]     The  appellant  contends  that  a  starting  point  of  four  months  on  the  first offending and an uplift of five months for the immediate second offending and minor charges  would  be  appropriate.  I  consider  that  an  overall  end  starting  point  of

12 months  is  appropriate  to  encompass  the  two  offences,  the  defiance  of  the prohibition against driving and the previous offending.  This reflects a six months sentence for the third offence and an uplift of six months for the other factors, to which a three month discount to reflect guilty pleas should be applied, resulting in a sentence of nine months imprisonment.

Did  the  Judge  err  by  failing  to  impose  community  detention  in  lieu  of  home detention?

[31]     The imposition of home detention in preference to community detention was within the Judge’s discretion. It was argued that community detention, imposed from Friday-Sunday, was the least restrictive outcome that could be imposed. It would allow the appellant to continue his employment in Queenstown. Ms Barker makes that argument that the offending has, here and in the past, been committed on Friday or Saturday, so a community detention over this part of the week would  allow adequate censure and public protection. I do not consider that to be a persuasive argument.  Mr Stonebanks could just adjust his drinking.

[32]     The  Judge  recognised  that  a  sentence  more  restrictive  than  community detention would preclude the appellant from continuing his employment in the meantime.

[33]     The pre-sentence report did not recommend community work.  Turning his mind to the question, the Judge considered that:

[13]      As to whether or not I should sentence you to community detention instead  and  impose  community  work,  the  pre-sentence  report  clearly indicates that that is not the appropriate sentence, and I agree that it would be sending the wrong message in that you – driving within an hour of being processed at the police station for drink-driving – got behind the wheel again, having been forbidden to drive.

[34]     As  the  appellant  has  never  received  a  more  restrictive  sentence  than community service or fines, to some extent a sentence of community detention represents the next logical step, although there is no firm principle of stepped sentences.

[35]     I  have  given  the  appeal  some  thought  and  I am  satisfied  that  a  shorter sentence of home detention is the appropriate sentencing outcome which balances all the applicable sentencing principles. It provides necessary denunciation and deterrence for repeat offending and here a defiant individual and who thumbed his nose at the law.   In accordance with s 8(g) of the Sentencing Act 2002,  home detention was the least restrictive outcome appropriate.

[36]     However, in light of the above conclusion regarding the starting point, the sentence of home detention should be amended to half of the end starting point after discount for guilty pleas, namely four months two weeks.  This also has the effect of reducing but not eliminating the risk of Mr Stonebanks losing his employment.

[37]     The period of disqualification is within range, as has been said above.  These are very serious driving offences, and a stern response recognises that.

Disposition

[38]     The appeal is allowed:

(i)The sentence of six months three weeks home detention is quashed and replaced with a sentence of four months two weeks home detention.

(ii)The   special   release   conditions   (attending   alcohol   and   drug programmes,  or  any  other  programme  specified  by  probation),  to apply for six months after the end of sentence, remain unaffected, together with the imposition of the disqualification period and zero alcohol licence.

(iii)     The appeal against the period of disqualification is dismissed.

……………………………………

Nicholas Davidson J

Solicitors:
Eagles Eagles & Redpath, Invercargill
Preston Russell Law, Invercargill