Stuart v Police

[2015] NZHC 2570

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2015-425-42 [2015] NZHC 2570

BETWEEN

JEREMY DAVID STUART

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	20 October 2015
Appearances:	H Cuthill for Appellant M G McClenaghan for Respondent
Judgment:	20 October 2015

(ORAL) JUDGMENT OF LANG J [on appeal against sentence]

STUART v NEW ZEALAND POLICE [2015] NZHC 2570 [20 October 2015]

[1]      Mr Stuart pleaded guilty in the District Court to a charge of driving with excess breath alcohol.  On 25 August 2015, Judge Callaghan sentenced Mr Stuart to

200 hours of community work and disqualified him from driving for a period of 15 months.1     In  addition, he sentenced  Mr Stuart  to nine months supervision with special conditions.  Mr Stuart appeals the period of disqualification that the Judge imposed.  He contends that it was manifestly excessive having regard to all relevant circumstances.

The facts

[2]      The facts giving rise to the offence are unremarkable.  At 2.08 am on 3 July

2015, Mr Stuart was driving a vehicle in Invercargill.  When spoken to by police, he was seen to be affected by alcohol.  A breath screening test proved positive, and an evidential breath test produced a result of 498 micrograms of alcohol per litre of breath.

[3]      The  charge  was  laid  in  its  aggravated  form  because  Mr  Stuart  has  two previous convictions as an adult for driving with excess breath alcohol.  In addition, he has two previous convictions for similar offending when he was less than 20 years of age.   Those offences are not relevant for the purposes of the charge in its aggravated form, but they are obviously relevant to the overall sentence to be imposed.

The appeal

[4]      Mrs Cuthill submits that the offending was clearly at the lower end of the spectrum having regard to the breath alcohol reading.  She acknowledges the fact of Mr Stuart’s previous convictions, but points out that the last of these was in 2007. None of the readings in relation to previous offending was particularly high.  They range from between 400 and 693 micrograms of alcohol per litre of breath.

[5]      Mrs Cuthill has referred me to the judgment of the Court of Appeal in R v Stone.2   In that case the Court of Appeal reproduced a graph showing the periods of disqualification imposed for recidivist offending of this type over a range of District and High Court decisions.  She contends that this demonstrates that a person having three relevant convictions could expect a period of disqualification of around 12 to

13 months.  She also emphasises that there was nothing about Mr Stuart’s driving to give cause for concern. As a result, she submitted that the Judge imposed a period of disqualification that was excessive having regard to relevant circumstances.

Decision

[6]      The period of disqualification cannot be viewed on its own.  It must be seen as being part and parcel of the overall sentence imposed by the Judge.

[7]      The Judge observed that Mr Stuart would ordinarily be a candidate for an electronically monitored sentence because this was his fifth conviction for driving with excess breath alcohol, notwithstanding the fact that two of those occurred when he was less than 20 years of age.  In this context he said:

[6]       You have, however, had a significant eight year period between your last offence and this offence and the fact is that the level here was at the low end  of  the  scale  of  what  is  often  seen  in  this  Court.    The  full-time employment factor is a significant factor for you.   I am not sure how the disqualification is going to impact upon your work commitments but in any event I must disqualify you for a significant period bearing in mind the fact that this is your fifth conviction for drink-driving.

[7]       Normally  with  drink-driving  offences,  particularly  those  that  are getting up to be in the fifth level, an electronically monitored sentence is one which  would  be  the  first  consideration  of  the  Courts.    But  taking  into account your personal circumstances and the fact that your job provides your residence and that it is not possible to have an  electronically monitored sentence at that address I am prepared to step back from that.   I will be sentencing you as follows.

…

[8]      It was against that background that the Judge imposed the sentences of community  work,  supervision  and  disqualification.    I  consider  that  the  Judge carefully constructed the sentence so that the purely punitive aspect of it, namely that

of  community  work,  was  imposed  in  circumstances  where  an  electronically monitored sentence could easily have been imposed in its place.  This is likely to have prompted the Judge to impose a period of disqualification that was perhaps towards the upper end of the scale.  Overall, however, I cannot say that the period of disqualification was manifestly excessive when those other factors are taken into account.

[9]      Counsel for the respondent has also referred me to two cases in which periods of disqualification of 14 and 15 months  were imposed on offenders being sentenced for their fifth and sixth drink driving convictions respectively.3   These demonstrate, in my view, that the period of disqualification that the Judge imposed on Mr Stuart was not outside the available range.

Result

[10]     The appeal against sentence is accordingly dismissed.

Lang J

Solicitors:

John K Fraser Law Ltd, Invercargill