Suckling v Police
[2019] NZHC 463
•15 March 2019
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2018-409-000109
[2019] NZHC 463
BETWEEN MARSHALL RAEBURN GARRY SUCKLING
AppellantAND
NEW ZEALAND POLICE
Respondent
Hearing: 12 March 2019 Appearances:
S Teki-Clark for Appellant
J H Whitcombe for Respondent
Judgment:
15 March 2019
JUDGMENT OF GENDALL J
Introduction
[1] The appellant, Marshall Suckling, pleaded guilty to one charge of driving with excess blood alcohol causing injury. He was sentenced by Judge Garland on 1 November 2018 to six months’ community detention, 100 hours’ community work. He was also ordered to pay approximately $3,800 in reparation to the victim and disqualified from driving for one year and one day. Mr Suckling appeals this sentence on the basis that he says it is manifestly excessive.
Facts
[2] On the morning of 22 December 2017, the appellant was driving a motor vehicle on Aylesbury Road, Burnham. He approached an intersection with State Highway 1. The appellant failed to stop at the stop sign and proceeded into the
SUCKLING v NEW ZEALAND POLICE [2019] NZHC 463 [15 March 2019]
intersection at approximately 80 km/h. The appellant’s vehicle struck the front left- hand side of the victim’s vehicle, which was travelling in a northerly direction. A blood sample was taken from the appellant at the hospital and upon analysis was found to contain 139 mg of alcohol per 100 ml of blood.
[3] As a result of the collision, the victim was hospitalised with serious injuries. These included a fractured sternum, ruptured bowel, lacerated head wound, fractured ribs and multiple soft tissue wounds. In his victim impact statement, the victim adds that he is continuing to receive physiotherapy for serious whiplash and neck pain. He suffers from rib and chest pain which seriously affects his sleeping. He has had some 46 days off work and a further eight weeks on light duties, and has lost a considerable amount of income as a consequence. The victim also states that his partner would usually travel with him to work, and it was only a coincidence that on the day of the collision she decided to take her own car. Had she been in the victim’s car she would have worn the major impact on the left-hand side.
[4] The appellant has no prior history of offending. A screening test supports his assertion that alcohol does not usually play a big part in his life. He has freely admitted that he was entirely at fault and presents as genuinely remorseful. He wished to meet with the victim face-to-face to apologise. He has agreed to pay a total sum of a further
$57,400 in reparation, being $8,500 to the victim’s insurance company for the car,
$10,000 to the local authority for damage done to the lamp post and the transformer,
$2,400 for a deer fence and $36,500 in relation to his employer’s vehicle.
District Court decision
[5] In his sentencing decision in the District Court, Judge Garland noted that the maximum penalty for this offence is five years’ imprisonment. He considered a number of similar cases in coming to a starting point, in particular Manikpersadh and Wright, where starting points of 12 months and 18 months’ imprisonment were upheld.1 His Honour accepted that there were no aggravating features of the appellant’s driving in this case. He also indicated that, although the appellant’s blood
1 Manikpersadh v R [2011] NZCA 452; Wright v Police HC Whangarei CRI-2009-488-47, 20 October 2009.
alcohol reading was lower than those in comparable cases, it was relevant that Parliament had reduced the legally permissible blood alcohol limit since those cases were decided. Judge Garland adopted a starting point of 12 months’ imprisonment.
[6] His Honour found there to be no aggravating factors which would require any uplift to the starting point. In mitigation he took into account the appellant’s previously unblemished record, his remorse and his early guilty plea. Judge Garland reduced the starting point by a third for these factors, resulting in an indicative sentence of eight months’ imprisonment.
[7] The Judge then turned to consider whether the circumstances of the appellant’s case would permit him to impose a lesser outcome than imprisonment or home detention. His Honour gave substantial weight to the appellant’s otherwise good character, his attitude and general remorse, and his preparedness to meet a very heavy burden of paying reparation in full. It was also considered very important that the appellant be able to maintain his employment in order to carry out his intention to pay that reparation. The Judge considered the interests of the victim, the community and the appellant would all be best served if the Court stepped back from imprisonment or home detention.
[8] Accordingly, Judge Garland sentenced the appellant to six months’ community detention. In addition, his Honour imposed 100 hours’ community work, stating that this was much less than he would ordinarily have imposed due to the reparation responsibility the appellant had undertaken. Judge Garland then ordered the appellant to pay the victim $2319 for losses incurred plus $1500 for emotional harm, as well as analyst fees of $109.25. His Honour was also required to disqualify the appellant from driving so imposed the minimum disqualification that he could, which was for a period of one year and one day.
Principles on appeal
[9] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should
be imposed.2 As the Court of Appeal mentioned in Tutakangahau v R quoting the lower court’s decision, a “…court will not intervene where the sentence is within the range that can be properly be justified by accepted sentencing principles”.3 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.4
Submissions
Appellant’s submissions
[10] Mr Teki-Clark, for the appellant, argues that the sentence imposed was manifestly excessive because the starting point adopted was too high, insufficient weight was given to mitigating features, and the final sentence imposed was not the least restrictive outcome appropriate in the circumstances.
[11] Mr Teki-Clark suggests that the 12-month starting point adopted by Judge Garland was higher than that sought by Police (10 months’ imprisonment). He contends that Parliament’s lowering of the legal blood alcohol limit should not be seen as increasing the level of culpability for relevant offending, because there has been no increase in the maximum penalty and no direction from the appellate courts that sentencing levels should increase.
[12] With regard to mitigating features, Mr Teki-Clark submits that the discount of one third given by the Judge was insufficient here. He says that if that included a full 25 per cent discount for the appellant’s early guilty plea, then a discount of only approximately 10 per cent was applied for the remaining mitigating factors. Mr Teki- Clark outlines these as being significant reparation payments, a clean history (resulting in 25 per cent discounts in Findlay and Davidson),5 and very serious injuries suffered by the offender himself as a result of the accident, which were held to be a mitigating factor in Duncan v Police.6
2 Criminal Procedure Act 2011, ss 250(2) and 250(3).
3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
4 Ripia v R [2011] NZCA 101 at [15].
5 R v Findlay [2007] NZCA 553; Davidson v R [2011] NZCA 356.
6 Duncan v Police HC Wellington M706/84, 3 May 1985.
[13] Mr Teki-Clark suggests that if appropriate discounts were given for all these factors, a combined sentence of community work, reparation and disqualification alone (excluding community detention) would be sufficient to meet the purposes and principles of sentencing while imposing the least restrictive outcome appropriate in the circumstances. And on this, he also referred to R v Rawiri, where the Court of Appeal recognised that a sentence of community work is “a very real and effective alternative to imprisonment” with a “punitive aspect”.7
Respondent’s submissions
[14] Mr Whitcombe, for the respondent, submits that Judge Garland was correct in factoring in Parliament’s reduction of the legally permissible blood alcohol limit. In doing so, Parliament recognised that a lower amount of alcohol can impair driving than previously indicated by legal limits. Mr Whitcombe submits that the 12-month starting point adopted was in line with the most analogous case of Manikpersadh.8
[15] Mr Whitcombe acknowledges that the amount of reparation the appellant has agreed to pay is significant, and that s 10 of the Sentencing Act 2002 requires the Court to take this into account. While discrete discounts are available for this, the Court of Appeal has consistently held that any weight given for such a factor will “generally be limited”.9 Mr Whitcombe notes that although Judge Garland did not specify a discrete discount for reparation, he gave that factor considerable weight when deciding to step back from imposing a sentence of imprisonment or home detention. The Judge did also give a discrete discount in the vicinity of 10 per cent for the appellant’s otherwise good character, attitude and general remorse.
[16] With regard to whether the appellant’s injuries should have been seen as a further mitigating factor, Mr Whitcombe refers to R v Mako, which held that allowances will not be made in every case, especially where the offender can be considered to have brought the injuries upon themselves.10 He says there is no evidence in the present case that the appellant suffered any lasting injuries, and
7 R v Rawiri [2011] NZCA 244, (2011) 25 CRNZ 254 at [18].
8 Manikpersadh v R, above n 1.
9 R v Johnson [2010] NZCA 168 at [28]; Pollard v R [2018] NZCA 244 at [37].
10 R v Mako [2000] 2 NZLR 170 at [19].
therefore any credit to be given should be extremely modest. It can be considered to be taken into account in the imposition of community detention in place of a more onerous sentence.
[17] Mr Whitcombe concludes that the Judge was correct to reach an end sentence of community detention, which is significantly less onerous than a sentence of imprisonment or home detention. This demonstrates, he says, that the appellant was given significant credit for mitigating features.
Analysis
[18] The starting point adopted by Judge Garland here, I am satisfied, was in line with other similar cases. It is true, as acknowledged by the Judge, that the appellant’s blood alcohol level was lower than in those cases, but his Honour was correct to compare this to the lowered legal limit. This does not mean the Judge considered the law change to be an aggravating factor, but rather that he properly took into account how far over the legal limit the appellant was.
[19] There are certainly significant mitigating factors in this case. Judge Garland found the appellant to be genuinely remorseful, he had entered an early guilty plea, and the reparation he agreed to pay was substantial. Mr Teki-Clark suggests, as I note, that these factors were not properly taken into account by the Judge. I disagree and do not accept this to be the case. His Honour made considerable mention of the appellant’s mitigating features, showing that he was cognisant of them. While the discount from 12 months to eight months’ imprisonment may not have been as substantial as discounts in other cases referred to me by Mr Teki-Clark, it is important also to consider that the overall sentence imposed was less severe than was available. Judge Garland, in my view, clearly took all mitigating factors fully into account when deciding not to impose imprisonment or home detention on the appellant.
[20] Given this analysis, it was open to the Judge to impose a sentence of community detention. This is in line with other cases, particularly Manikpersadh, where the Court of Appeal imposed a sentence of five months’ home detention on a
not dissimilar factual situation (although there were fewer mitigating factors than in the present case).11
[21] Overall, I am satisfied here that Judge Garland adopted an appropriate starting point of 12 months’ imprisonment, and properly took into account all the available mitigating factors when deciding in this case to impose a less onerous sentence than imprisonment or home detention. The end sentence of six months’ community detention, 100 hours’ community work, approximately $3,800 in reparation and disqualification from driving for one year and one day could not be seen as manifestly excessive here.
Conclusion
[22] For all the reasons I have outlined above, I conclude that there has been no error on the part of Judge Garland in the sentence he has imposed. That sentence is appropriate and entirely within the range that can be justified by accepted sentencing principles.
[23]This appeal against sentence is dismissed.
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Gendall J
Solicitors:
Public Defence Service, Christchurch
Raymond Donnelly & Co, Christchurch
11 Manikpersadh v R, above n 1 at [28].
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