Stoves v The Queen
[2005] NZCA 119
•24 May 2005
IN THE COURT OF APPEAL OF NEW ZEALAND
CA457/04
THE QUEEN
v
COLYN DAVID STOVES
Court:Glazebrook, William Young and Chambers JJ
Counsel:Appellant in Person
B J Horsley and A J Mills for Crown
Judgment:24 May 2005
(On the papers)
JUDGMENT OF THE COURT
The appeal is dismissed.
REASONS
(Given by Chambers J)
Refusal to permit blood sample to be taken
[1] On 19 September 2002, Colyn Stoves, the appellant, was driving his car in Christchurch. He pulled into his driveway and was then approached by a police officer. The officer noticed that Mr Stoves was affected by liquor. Mr Stoves admitted to the officer that he had been drinking at a friend’s place before driving home. The officer asked Mr Stoves to undergo a breath-screening test. Mr Stoves refused. The officer then asked him to accompany him to the police station for the purposes of an evidential breath test. Mr Stoves did go to the police station, but refused to undergo an evidential breath test. He was then required to undergo an evidential blood test, which he also refused. Following that refusal, he was arrested and charged with refusing to allow a blood sample to be taken.
[2] Mr Stoves’s case since that time has followed a complicated procedural course. Because of its relevance to several grounds of appeal, we set it out. Mr Stoves pleaded not guilty. His trial – a summary trial – was heard on 26 August 2003. Judge McMeeken found him guilty. She convicted Mr Stoves and later sentenced him to 100 hours’ community work. He was disqualified from driving for 12 months: Police v Stoves DC CHCH CRN20090042383 26 August 2003.
[3] Mr Stoves appealed. The ground of his appeal was that he had been denied the opportunity to elect trial by jury. John Hansen J heard the appeal in the High Court at Christchurch on 17 October 2003. The Crown conceded on the appeal that Mr Stoves had a right of election as the maximum sentence he faced exceeded three months’ imprisonment. John Hansen J in a reserved decision found that Mr Stoves had not been given his right to elect trial by jury, as required by s 66 of the Summary Proceedings Act 1957. He allowed the appeal and ordered a rehearing: Stoves v New Zealand Police HC CHCH CRI2003‑409-67 28 October 2003.
[4] On 24 May 2004 Mr Stoves elected trial by jury. A preliminary hearing took place on 21 July 2004, following which he was committed for trial.
[5] The trial was due to be heard on 9 November 2004. Mr Stoves pleaded guilty on arraignment. The trial judge, Judge Doherty, convicted Mr Stoves. He sentenced him to 250 hours’ community work. He disqualified him from holding or obtaining a motor vehicle driver’s licence for 12 months: Police v Stoves DC CHCH CRI2002-009-998847 9 November 2004.
[6] Mr Stoves then appealed against both his conviction and the sentence. We heard this appeal on the papers in accordance with s 392B of the Crimes Act 1961. The relevant materials, including written submissions which have been received in accordance with r 29 of the Court of Appeal (Criminal) Rules 2001, have been considered by members of the court, who have conferred and agreed upon this judgment.
Issues on the appeal
[7] There is a fundamental problem with Mr Stoves’s appeal against his conviction, given that he pleaded guilty. The general rule is that an appeal from a conviction following a plea of guilty will be entertained only where there is evidence of a miscarriage of justice. Where a defendant fully appreciated the merits of his or her position, and made an informed decision to plead guilty, the conviction cannot be impugned: Udy v Police [1964] NZLR 235; R v Stretch [1982] 1 NZLR 225 (CA); R v Ripia [1985] 1 NZLR 122 (CA).
[8] The circumstances that will amount to a miscarriage of justice are not fixed. Examples of cases where the courts have permitted appeals against conviction notwithstanding a guilty plea include the following:
(a)Where the plea was based on a view of the law later shown to be incorrect by a decision of a superior court: R v Smith CA452/03 27 April 2004. If it can be shown that the plea was induced by a ruling which embodied a wrong decision on a question of law, an appeal may be considered.
(b)Where the appellant did not appreciate the nature of the charge or did not intend to admit guilt on the charge to which he or she pleaded guilty. In determining whether the appellant comprehended the charge or was aware of the consequences of pleading guilty, the appellate court may have regard to any prior experience of the criminal justice system which the appellant may possess: R v Roycroft CA312/01 4 September 2002.
(c)Where, on the admitted facts, the appellant could not in law have been convicted of the offence charged.
[9] None of those grounds applies in this case. Further, there is nothing in Mr Stoves’s submissions which indicates that a miscarriage of justice occurred on other grounds. That really knocks Mr Stoves’s appeal against conviction out of the water. In deference, however, to the submissions he has filed, we shall nonetheless deal briefly with the three grounds of appeal he has advanced:
(a)The option of electing trial by jury pursuant to s 66 of the Summary Proceedings Act was not offered to him.
(b)The judge at the pre-trial conference would not hear an application with regard to whether the police officer was a trespasser when he entered Mr Stoves’s address.
(c)The Crown proposed to call evidence from the police as to the circumstances of their stopping Mr Stoves, when such evidence had not been mentioned at earlier hearings or in any notes made by the police.
[10] Mr Stoves has also appealed against his sentence. In that regard he advances two grounds of appeal:
(a)Judge Doherty’s sentence was much heavier than the previous sentence imposed by Judge McMeeken.
(b)The sentence was manifestly excessive, given mitigating factors, which were not fairly taken into account.
[11] We shall deal with the five points in turn.
Section 66 option
[12] Mr Stoves submits that, when the case was referred back to the District Court for rehearing, he had to ask for the matter to be heard before a jury. He submits that the court did not inform him of the right of election.
[13] Neither side has submitted affidavit evidence on what exactly happened. But there is nothing in this point. The fact is that the case was referred back to the District Court by John Hansen J because Mr Stoves had the right to elect trial by jury. Mr Stoves exercised that right. The case then proceeded on its indictable path. It is irrelevant how exactly the election of trial by jury was made.
The pre-trial conference
[14] Mr Stoves says that, before his trial, he had advised the prosecution that he intended to challenge the admissibility of police evidence on the basis that the police were trespassing when they came onto his property and were acting in breach of the Land Transport Act 1998, s 119.
[15] Mr Stoves says he raised this matter at a pre-trial conference. He says that the judge presiding at that conference refused to deal with that matter, because no prior notice of it had been given. Mr Stoves accepts that no such notice had been given.
[16] Mr Stoves submits that there was a duty on the prosecution, following his intimation of a challenge to the admissibility of the evidence, to make application under s 344A of the Crimes Act. Had such application been made, he submits, the admissibility of the evidence would have been determined. Had it been ruled that the police were trespassers, that would have been the end of the matter.
[17] The Crown is not bound to make application under s 344A whenever advised prior to trial that some evidence or other is going to be challenged. That is a matter of discretion for the prosecutor. Here the Crown obviously decided that it would be more economical of court time for any admissibility challenges to be dealt with at the trial itself. That was a course open to the Crown. It was open to Mr Stoves to maintain his plea of not guilty and to challenge the admissibility of the evidence. That is not the course Mr Stoves elected. Instead, he decided to change his plea to guilty. That plea of guilty equates to an acceptance of the essential elements of the offence.
[18] The second point fails.
Unexpected police evidence
[19] Mr Stoves’s third point is that, at the pre-trial conference, the prosecution advised that a police officer was to be called who would give evidence to the effect that he had followed Mr Stoves to his address with the red and blue lights of the patrol car flashing and siren blaring.
[20] According to Mr Stoves, nowhere in any of the Crown’s previous briefs of evidence or in notes taken at the time of the incident or at the previous hearing (by which he presumably means the hearing before Judge McMeeken) had this evidence been divulged. Mr Stoves submits that “this evidence should be looked at with some scepticism” as, he says, it was only when he disclosed what his defence would be that this evidence emerged. He submits that it was this “previously undisclosed evidence” that led him to change his plea to guilty.
[21] Mr Stoves does not suggest the proposed evidence was inadmissible. If that evidence had not previously been disclosed, then that could be, no doubt, a matter for cross-examination. But it does not affect the admissibility of the evidence.
[22] In any event, it was open to Mr Stoves to challenge the admissibility of that evidence at trial. He elected not to pursue that course, but to plead guilty instead.
[23] We also note that Mr Stoves in his submissions does not deny the truth of the proposed evidence.
[24] There is nothing in the three grounds of appeal. There is nothing to suggest a miscarriage of justice occurred. Mr Stoves is stuck with his guilty plea and the conviction must stand.
Sentence higher than first time round
[25] Mr Stoves submits that it is unfair that a higher sentence was imposed the second time round.
[26] The law on this topic is clear. It is open to a judge on a retrial to impose a longer sentence than the judge presiding at the first trial thought proper: R v Duffy CA106/80 12 August 1980. There is, however, a qualification to that general proposition. This court said in R v Miers (1994) 11 CRNZ 307 at 313:
Unless the facts that emerge at the second trial are significantly different, or unless on the first occasion the sentence was manifestly too light or was based on reasons which have since been shown to have been invalid, the imposition of a substantially longer sentence will have the appearance of a punishment of the offender for the necessity of the second trial. That would ordinarily be quite wrong.
[27] In Miers itself, the judge sentencing Mr Miers following the first trial had sentenced him to an effective four and a half years’ imprisonment. Following a retrial, the sentencing judge imposed a sentence of effectively six and a half years’ imprisonment. On appeal, this court reduced the sentence to five and a half years’ imprisonment. This court considered that the first judge had imposed an unduly lenient sentence, based on faulty reasoning. While the second judge had, on that account, been entitled to depart from the original sentence, he too had erroneously approached his task, taking into account as aggravating circumstances matters which were not properly aggravating circumstances.
[28] It is not clear to us whether Judge Doherty was told what sentence Judge McMeeken had passed and her reasons for imposing the sentence she did. Regardless of whether he did know, he was, in our view, justified in departing from it. This is because Judge McMeeken’s sentence was manifestly too light and was based, with respect, on faulty reasoning.
[29] Judge McMeeken noted that Mr Stoves had been given a final warning in 1995, when he was sentenced on his third drink-drive conviction, that if he offended against the drink-drive law again, he would be imprisoned: op cit at [2]. Judge McMeeken did not sentence Mr Stoves to imprisonment because of a view she held “that these final warnings can expire”: at [2]. We are unable to see how a final warning given as recently as 1995 should have been regarded as “expired”. But, in any event, even without the final warning, Mr Stoves should have been facing a custodial sentence on a fourth drink-drive conviction, unless there was good reason to the contrary.
[30] Judge McMeeken also said as part of her reasoning (at [3]):
I think there is a certain amount, Mr Stoves, of you being unlucky in respect of this matter. I do not mean for a minute that I in any way, shape, or form condone anyone driving after they’ve been drinking but it seemed to me that you committed a minor infringement. The police officer was quite correct to note it and to follow you but one wonders what may have happened if something more important caught the officer’s eye or had the vehicle not come up as being owned by someone who perhaps shouldn’t have been driving it at that time.
[31] With respect, it is not a mitigating factor that a defendant was “unlucky” in having his offending detected especially in circumstances where he admitted he had been drinking before driving. None of the above reasoning was relevant on a sentence for refusing to give a blood sample.
[32] This ground of appeal fails.
Sentence manifestly excessive
[33] Mr Stoves’s second point on the sentence appeal is that the sentence was excessive. He submits that there were delays. He also makes reference to a completely unrelated set of offending. An appeal with respect to that offending was in part successful. Mr Stoves submits that how he was treated with respect to that matter has a bearing on how he should have been punished with respect to this offence.
[34] This was Mr Stoves’s fourth conviction for drink-driving matters. He faced a maximum sentence under s 60(1)(a) of the Land Transport Act of two years’ imprisonment or a fine not exceeding $6,000. The Act provides a mandatory minimum disqualification period of one year.
[35] In Clotworthy v Police (2003) 20 CRNZ 439, Wild J reviewed sentences imposed under s 56(4) of the Land Transport Act. (That was the relevant subsection under which Mr Stoves fell to be sentenced.) Wild J included tables of recent sentences imposed in the District and High Courts under that subsection. That table indicated that a custodial sentence is the norm. While a non-custodial sentence may be appropriate in some cases, it is outside the normal sentencing range. In the present case, Judge Doherty could well have chosen to impose a sentence of imprisonment. Had he done so, it would not have been interfered with by this court. This was the fourth time that Mr Stoves had been charged with alcohol-related driving offences, quite apart from his considerable history of other criminal offending. The judge gave Mr Stoves credit for the fact that the previous drink driving offending had taken place some years before. Judge Doherty also gave credit for the guilty plea, but said, rightly, “not much [for] this has really gone down to the wire”.
[36] As we have indicated, Mr Stoves complains that the sentence was excessive in view of the delay between the offending and the sentencing. Strictly speaking, any delay in that period is irrelevant. In fact, however, Judge Doherty did indirectly give credit for the fact that there had been a delay. It was a factor, the judge said, in his decision not to impose the normal custodial sentence for offending of this kind.
[37] Mr Stoves also advanced detailed submissions concerning the other unrelated offending, the appeal concerning that, and the fact that he had served a period of imprisonment with respect to that offending between the time of this drink-drive offence and Judge Doherty’s sentencing. Once again, all those factors were strictly irrelevant. But, as it happens, the judge did take into account the fact that, in the intervening time, Mr Stoves had served a sentence of imprisonment. He said that that too was a factor which had led him to the view that a term of imprisonment for this offending would be inappropriate.
[38] The factors to which Mr Stoves points were therefore taken into account, even if strictly the judge could legitimately have ignored them. Despite that leniency towards Mr Stoves, he now complains that the sentence was excessive.
[39] The sentence, far from being excessive, was lenient. Mr Stoves was lucky that a custodial sentence was not imposed.
Solicitors:
Crown Law Office, Wellington
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