Stringfellow v Police

[2015] NZHC 2358

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2015-488-24 [2015] NZHC 2358

BETWEEN

PETER LEONARD THOMAS

STRINGFELLOW Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	28 September 2015
Counsel:	A Dooney for Appellant N Dore for Respondent
Judgment:	28 September 2015

ORAL JUDGMENT OF FOGARTY J

Solicitors:           Marsden Woods Inskip & Smith, Whangarei

STRINGFELLOW v POLICE [2015] NZHC 2358 [28 September 2015]

[1]      This is an appeal against sentences imposed by Judge Harvey in the District Court at Whangarei on 3 July 2015.  The setting of the case is a sixth and seventh conviction by the appellant for driving with excess breath alcohol.  The first set of charges are driving with excess breath alcohol, failing to stop and failing to remain stopped.     That  occurred  on  21  March,  the  police  having  noticed  the  driver conducting a U-turn and failing to give way to the police.  The driver was stopped and he exhibited signs of alcohol intake intake so breath screening procedures were carried out, at the completion of which he was asked to turn off his vehicle and get out of the vehicle.   He said “no” and drove off at speed.   He was pursued for a distance of about 500 metres, arrested, breath procedures were continued and his breath was found to contain 910 micrograms of alcohol per litre of breath.

[2]      Then, six days later on 27 March, he was found driving a motor vehicle, stopped and processed.  His breath was found to contain 719 micrograms of alcohol per litre and at that time he was a suspended driver.

[3]      The  Judge  then  went  on  to  note  that  these  were  his  sixth  and  seventh convictions for driving with EBA.  He said:1

[8]       … You have to be held accountable for this offending and there is a need  for  me  to  send  a  message  not  just  to  you  but  to  the  community generally that drinking and driving is unacceptable.

[9]       The  time  has  come  for  the  court  to  deal  with  you  thought, Mr Stringfellow, on the basis that you are not learning your lesson and a truly deterrent sentence now must be imposed because you are a risk to the community …

[4]      The Judge then went on to note the high level of the EBA and, on the first charge, he took a starting point of twelve months, gave full credit for a plea of guilty and sentenced the appellant to nine months imprisonment.  He noted that by law the appellant was now indefinitely disqualified.

[5]      Turning to the second charge, as to the culpability, he took the breath reading of 719 and the fact that he committed that offence knowing he was already very

1      Police v Stringfellow [2015] NZDC 12440, 3 July 2015 at [8].

much in trouble for the earlier offence a few days prior and that it was his seventh conviction.  He took a starting point of sixteen months, giving credit for an early plea and reached an end sentence of twelve months, and that also being cumulative on the nine months, noting again he is indefinitely disqualified.

[6]      He then turned to the third charge  of driving while suspended, noting he had six previous convictions of this sort of charge.  He referred to High Court authority making it clear that such a penalty should be cumulative.  He took a starting point of eight months with credit for a plea of guilty.  He then said:2

However, I must also have regard to the principle of totality. Accordingly on that charge you are convicted and sentenced to four months’ imprisonment. That is also cumulative.”

That ended with an end sentence of 25 months.

[7]      On appeal Mr Dooney submitted that the judgment was manifestly excessive or, in the language of s 85(2) of the Sentencing Act, “wholly out of proportion”.  He relied on the decision of Clotworthy v Police3 and, in particular, took two examples from the schedule to that decision.  Police v Storer where the charges were the tenth and eleventh offending EBA and also driving while forbidden.  The reading was low. The time since the previous EBA was three years and the end sentence was twelve months.  In the case of Police v Herewini, fourth and fifth offending of driving while licence suspended.   High readings, 1054 and 1093.   Two years since previous offending.   End sentence of twelve months.   Police v McIvor, low and medium

readings, one year since previous offending, nine months.

[8]      I accept that this sentence under appeal, placed against those comparables – Storer, Herewini and McIvor – is a much higher sentence, double the sentence. However, I take into account that the Clotworthy decision was decided in 2003. Wild J’s analysis has been relied upon to a considerable extent, particularly in the five or so years after 2003.  But the decision is not regularly cited, at least to me, in recent years.  I prefer to be guided in this instance by the language of the Sentencing

Act, s 85 as to the totality principle.  Section 85 reads:

2 At [15].

3      Clotworthy v Police (2003) 20 CRNZ 439.

85       Court to consider totality of offending

(1)       Subject to this section, if a court is considering imposing sentences of imprisonment for 2 or more offences, the individual sentences must reflect the seriousness of each offence.

(2)      If cumulative sentences of imprisonment are imposed, whether individually or in combination with concurrent sentences, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.

(3)       If, because of the need to ensure that the total term of cumulative sentences   is   not   disproportionately   long,   the   imposition   of cumulative sentences would result in a series of short sentences that individually  fail  to  reflect  the  seriousness  of  each  offence,  then longer concurrent sentences, or a combination of concurrent and cumulative sentences, must be preferred.

(4)      If only concurrent sentences are to be imposed,—

(a)       the  most serious offence must,  subject to any maximum penalty provided for that offence, receive the penalty that is appropriate for the totality of the offending; and

(b)       each of the lesser offences must receive the penalty appropriate to that offence.

[9]      It is a mandatory consideration for a sentencing Judge to consider the totality of offending.   It can be presumed that Parliament carefully chose the criterion for “wholly out of proportion” in s 85(2).

[10]     It is difficult to appeal against a judgment of a sentencing Judge applying the totality principle.  Mr Dooney argued that the end sentence should be two cumulative sentences of nine months each on the EBA charges, bringing it to eighteen months and four months on the driving while suspended, reaching an end sentence of 22 months. That is three months away from the end sentence of 25 months.

[11]     Keeping in mind the criterion of “wholly out of proportion”, I do not think that that is a sufficient difference from the end sentence of Judge Harvey to justify interference on appeal.

[12]     For these reasons, the appeal is dismissed.