Sullivan v Police

[2014] NZHC 473

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2014-418-001
CRI 2014-418-002

CRI 2014 2014-418-003 [2014] NZHC 473

JASON MICHAEL SULLIVAN Appellant

v

NEW ZEALAND POLICE Respondent

Hearing:                   13 March 2014

Appearances:           T Aickin for Appellant

K Bell for Respondent

Judgment:                14 March 2014

RESERVED JUDGMENT OF MANDER J

[1]      The appellant, Jason Sullivan, appeals his sentence of 2 years and 4 months imprisonment imposed in respect of a number of offences committed between March and October 2013.

The lead charge was one of unlawfully taking a motor vehicle, combined with a related charge of causing loss by deception.   These charges were the subject of a defended hearing before Judge Kellar in the Greymouth District Court.   That offending arose out of the conversion by the appellant of a Mitsubishi Pajero motor vehicle which had been lent to the appellant by an aunt.   Instead of returning the vehicle to her, the appellant retained the vehicle and sold it to a third party.  That third party spent in excess of $1,100 repairing the vehicle, before being approached

by the Police.   Upon being advised of the true owner, the third party returned the

SULLIVAN v NEW ZEALAND POLICE [2014] NZHC 473 [14 March 2014]

vehicle to its rightful owner.  The appellant’s explanation for how he came to be in

possession of the vehicle was rejected by the presiding Judge.

[2]     In relation to those charges, the appellant was sentenced to a term of imprisonment of 9 months by Judge Garland who on 19 November sentenced the appellant on other outstanding charges.   The Judge  observed that the offending involved a breach of trust and that while the motor vehicle was returned to the aunt, it resulted in a loss to the third party.  Of note was the appellant’s past history for dishonesty which included 27 convictions, either for unlawful taking, or getting into or interfering with motor vehicles.   It was felt no credit could be afforded to the appellant for contrition or remorse.  The appellant was ordered to pay reparation in the sum of $2,021.25, such payment suspended whilst the appellant was imprisoned.

[3]      The charge of driving with excess blood alcohol arises out of the appellant being stopped at a checkpoint on 7 June 2013.  He returned a blood alcohol reading of 159  micrograms  of  alcohol  per 100  millilitres  of blood.    In  explanation  the appellant told Police that he had not consumed any alcohol for some four hours and that the processing officer “which just ruining people’s lives”.

[4]      In relation to this offending, the sentencing Judge reviewed the leading authorities for recidivist drink-driving offending.1   He noted that the appellant was a mature man of 41 years who had returned a blood alcohol reading just under double the legal limit.  While the appellant’s previous drink-driving conviction was in 2009, this latest offence represented his twelfth of this type.  Eleven convictions had been entered against his name as an adult offender.  The sentencing Judge afforded full

credit for the guilty plea which, from a starting point of two years imprisonment,

resulted in a reduction of 6 months and a final sentence of 18 months imprisonment.

1      Clotworthy v Police [2003] 20 CRNZ 439 (HC); R v McQuillan CA129/04, 12 August 2004;

R v Stoves CA457/04, 24 May 2005.

[5]      Various  types  of  sentence  had  been  tried  in  the  past.    On  the  previous occasion, the appellant appeared on a drink-driving offence, he received a sentence of intensive supervision; prior to that a sentence of imprisonment.  As the learned District Court Judge observed, “regrettably there has been no improvement”.  The appellant  presented  with  no  genuine  remorse  for  the  risk  that  he  placed  other members  of  the  public,  nor  did  the  Judge  consider  there  to  be  any  mitigating personal or family circumstances that could be said to have contributed to the offending.   The appellant was suspended from obtaining a driver’s licence for a period of two years and ordered to pay analyst and medical fees.

[6]      The final set of charges were ones of assault and trespass on 10 March 2013. The appellant was at the Railway Hotel in Hokitika when he was asked to leave by a member of the establishment’s security staff.  The appellant became aggressive and started struggling, and the Police were called.   The appellant’s aggression did not abate and he was subsequently arrested.  While being processed in the custody area of the Hokitika Police Station he continued to argue with Police and attempted to intimidate officers.  While removing his shoes, he threw them at a Police Officer, hitting the constable. The appellant was intoxicated at the time.

[7]      The appellant has previous convictions for like offending, involving assault on Police, resisting arrest and disorderly behaviour.   Recognising the appellant’s guilty pleas to these charges, one month’s imprisonment was imposed.

[8]      The  sentences  for  each  of  these  three  pieces  of  discrete  offending  were imposed cumulatively.   The overall sentence imposed was one of 2 years and 4 months.  The learned Sentencing Judge took the view that the combined effect of the three cumulative sentences did not offend against the totality principle.

[9]      The appeal is brought on the basis of six alleged errors, identified as follows:

(a)      Adopting a starting point that was too high in relation to the driving with excess breath alcohol charge.  A starting point of 2 years is the maximum penalty available.   Ms Aickin for the appellant submitted that there had been a 4 year gap since the appellant’s last conviction of

this nature and that some recognition should have been afforded to this fact, notwithstanding his history.

(b)Failing to discount the end sentence for all matters sufficient to take into account personal mitigating factors.  Ms Aickin submitted that the effect of a prison sentence would likely force the appellant and his partner to close their takeaway business in Greymouth, which would result in adverse financial consequences for them.   Additionally, emphasis was placed on the steps the appellant had taken since the offending to address his alcohol addiction and to rehabilitate himself generally.   The appellant had been accepted into the St Mark’s residential   treatment   facility  in   Blenheim   and   was   taking   the prescribed anti-alcohol medication Antibuse at the time of the sentencing hearing.

(c)      Failing to take into account the sentencing hierarchy set out in s 10A of the Sentencing Act 2002 and specifically failing to consider (or adequately consider) whether a sentence of home detention would be available and/or appropriate.   This submission is dependent upon whether any of the other submitted errors in the Judge’s approach would result in the appellant being eligible for home detention.  This being, as it was submitted by Ms Aickin, the least restrictive sentence available in accordance with the hierarchy of sentences.

(d)      Failing to apply or adequately apply sufficiently the totality principle.

The appellant submits that the ultimate sentence imposed was manifestly excessive, given the nature of the offences committed and the gap in the appellant’s criminal history.  Reliance was placed on the steps the appellant had taken to address his alcohol addiction.

(e)      The appellant further submitted that the appellant’s willingness to pay reparation was not sufficiently taken into account under s 10 of the Sentencing Act 2002 and justified a discount in respect of the dishonesty offending.

[10]     The  appellant  submits  that  had  the  Judge  not  erred  in  his  approach  to sentence, the appellant would have been eligible for a sentence of home detention and this would have been the preferable sentencing option.   It is submitted that a sentence of 2 years or less with leave to apply for substitution of a sentence of home detention ought to be imposed.

[11]     The Crown submits that in relation to the dishonesty offending there were no mitigating features which warranted a discount, and that the appellant’s continued stance that the matter was just an internal family dispute rendered any expressions of remorse in the pre-sentence report hollow.

[12]     In relation to the excess breath alcohol charge, the level of the appellant’s intoxication and his prior history was emphasised.  Personal and general deterrence, denunciation and protection of the community were submitted as being the primary purposes of sentencing that properly guided the sentencing Judge to adopt a 2 year starting point. Absent the guilty plea, there were no other relevant mitigating factors and the Judge was entitled to take a sceptical view of the appellant’s claims of being motivated to rehabilitate himself.

[13]     In relation to the assault and trespass charge, no realistic challenge could be made to the level of sentence imposed which was also alcohol fuelled.

[14]     In  terms  of  the  application  of  the  totality  principle,  it  was  submitted  a sentencing Judge is required to stand back and assess the overall sentence to see whether the principle is infringed.  It does not follow that a deduction will be made as a matter of course, and in the present case the sentencing Judge was entitled to take the view that a reduction was not warranted.   It was submitted that the end sentence, while stern, was not excessive.

[15]     The difficulty for the appellant on this appeal is that, at 41 years of age, there is little to indicate that the appellant has come to any realisation that he must change his ways.   The pre-sentence report observes that his repeated driving whilst intoxicated means the risk he poses to the public is considered to be high.  Previous steps to address his excessive use of alcohol have come to nought.  Assistance has

been afforded to him in the past but no long lasting results have been achieved.  The pre-sentence report writer was of the view that the appellant’s recent measures to address his alcohol problem was motivated more out of an attempt to avoid a custodial sentence than any genuine desire to change his lifestyle.  The appellant’s history, the previous opportunities afforded to the appellant and the negative assessment of the appellant’s motivation contained in the pre-sentence report provide little optimism that the appellant is realistic about addressing the issue at the root of his offending.  It is apparent that the Sentencing Judge gave earnest consideration to this factor, which is central to the approach to be taken to the sentencing exercise.

[6]       The probation report indicates that you are 41 years of age.  When speaking with the probation officer the probation officer assessed your risk of re-offending as high.  It is thought that your risk might reduce if you were able to permanently deal with your alcohol addiction.  The probation officer noted that the Court had given an indication of imprisonment as a sentencing outcome.    Until recently it is noted in the report your  life was heavily influenced by excessive use of alcohol.  You claimed, when talking to the probation  officer,  that  you  had  taken  steps  to  address  the  issue  having enlisted the help of the counsellor and the use of Antabuse.   The probation officer says it is noted that you have received assistance in the past but without achieving long lasting results.   The probation officer gained the impression that the recent measures that you had taken to address your alcohol problem is no more than an attempt to persuade the Court to fall short of imposing a custodial sentence rather than any genuine desire to change your lifestyle.

[7]       … Although you admitted that alcohol is the cause of most of your offending and you say you are now determined to address your addiction, the prospect of taking treatment after serving a custodial sentence apparently was not something that you favoured.  The probation officer comments that he suspects you are talking the talk rather than walking the talk.

[8]       Now Mr Bodle on your behalf submits that you are a good candidate for a residential programme.  You have apparently enrolled in a programme but have not as yet been able to enter a programme.   You have been undertaking counselling and have been prescribed Antabuse which you are taking, that is indicated in the information which counsel has provided for me.

[16]     The learned District Court ultimately was unable to impose a sentence which afforded the appellant the opportunity to take up a residential programme.  This is unsurprising having regard to the need to protect the public and the questions raised as to the genuineness and motivation on the part of the appellant to address his alcohol difficulties.  As Judge Garland observed, if the appellant is actually prepared to make a change, he will have that opportunity once he has served his sentence.

[17]     In relation to the dishonesty offending, it is apparent that the appellant is still in something of a state of denial as to his culpability.  The fact that the offending had its genesis in a dispute between family members, which is pursued on appeal as a mitigating factor, does not recognise that the appellant’s conviction also represents a breach of trust on his part.   This was rightly acknowledged by the District Court Judge in his approach to sentence.

[18]     In terms of the starting point for the drink-driving offence, I see nothing unusual in taking the maximum penalty prescribed as a proper starting point.  While the learned District Court Judge was not explicit as to how he arrived at that starting point, it is readily apparent that the appellant’s long history of driving while intoxicated required the starting point to be elevated to that level.  The District Court

Judge’s approach was entirely consistent with that taken in Clotworthy,2 and indeed

both in terms of starting point and ultimate sentence imposed is consistent with that authority.   The appellant contends that the learned Judge did not give enough recognition to the 3-4 years interlude between his last drink-driving conviction.  But as the Judge expressly set out, this latest offending is consistent with the appellant’s previous pattern of drink-driving; he having been convicted in 1990, twice in 1993,

1994, 1996, 1998, 2000, twice in 2001, 2007 and 2010.

[19]     In terms of the appellant’s personal circumstances that might mitigate the sentence imposed, the matter pursued on appeal related to the recent purchase of a takeaways  business  and,  with  the  appellant’s  absence,  the  pressure  that  will  be placed  on  his  partner and  the potential  financial  difficulties  this  will cause.    It appears however that the purchase of the business was a relatively new venture, and no doubt was entered into by the appellant with knowledge of the pending charges, and particularly, having regard to his criminal history, the likely outcome should he be found guilty.  The appellant must have been aware of the situation he was placing himself in and has to take responsibility for that.  Judge Garland acknowledged the difficulties created as a result of his incarceration in terms of the new business, but I

am unable to conclude that he erred in proceeding as he did in that knowledge.

2      Above n 1.

[20]     The submission that the District Court did not adequately acknowledge and reflect in the ultimate sentence imposed, the appellant’s offer of amends and willingness to compensate for the loss to the third party as a result of the dishonesty offending has some validity.  The appellant, in the pre-sentence report, is recorded as being willing to pay the $2,021.25 reparation when he is in a position to do so. Judge Garland ordered reparation in that sum and suspended payment whilst the appellant was imprisoned. How realistic the prospect of payment remains to be seen, however, it does represent an offer to make amends which, under s 10(3) of the Sentencing Act, is a matter that must be taken into account when determining the appropriate sentence.  There is no express recognition of the reparation offer in the Judge’s  sentencing  remarks.    It  may  have  been  something  that  was  taken  into account by Judge Garland in imposing the 9 months sentence, but I accept it is not clear.

[21]     Ultimately, I need to be satisfied that the sentence imposed was one that, having regard to the cumulative nature of the component sentences, did not breach the totality principle.  I am not brought to a point where I can conclude that the total period of imprisonment is wholly out of proportion to the gravity of the overall offending, nor disproportionately long.  The stern response was largely required as a result of the very significant recidivist drink-driving offending.  The entirely separate dishonesty offending rightly attracted its own discrete sentence.  Combined with the short sentence to recognise the assault on Police the sentence was not excessive.

[22]     Some adjustment could be made to the sentence to reflect the reparation offered by the appellant.  That would however only amount to a deduction of at the most perhaps 2 months imprisonment.  Such an adjustment would really be tinkering and would not affect the objective of the appeal in seeking to have a period of home detention substituted for that of imprisonment.   While capable of constituting an error, it did not lead to the sentence being manifestly excessive, nor to a conclusion that a different sentence be imposed.

[23]     Accordingly, the appeal is dismissed.

Solicitors:

Trudi Aikin Barrister, Christchurch
Raymond Donnelly & Co, Christchurch