Swenson v Police

[2016] NZHC 1625

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-0000187 [2016] NZHC 1625

BETWEEN

MURRAY WILLIAM SWENSON

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	18 July 2016
Appearances:	T Beach for Appellant S Navot for Respondent
Judgment:	18 July 2016

JUDGMENT OF VENNING J

Solicitors:           Meredith Connell, Auckland

Presland & Co, Auckland

Copy to:            T Beach, Auckland

SWENSON v NEW ZEALAND POLICE [2016] NZHC 1625 [18 July 2016]

[1]      Following a defended hearing Mr Swenson was convicted on charges of driving with excess breath alcohol (third and subsequent time), dangerous driving and assault on a police officer.1    On 8 June 2016 Judge P J Sinclair in the District Court at North Shore sentenced Mr Swenson to 18 months’ imprisonment reserving him leave to apply for home detention at a monitored facility such as Odyssey House.2   The Judge disqualified Mr Swenson for a period of two years on the breath alcohol charge and one year for the dangerous driving.  The effective term of disqualification was two years.

[2]      Mr Swenson appeals.  He submits:

(a)      the starting point the Judge took for sentence of 18 months for the driving   with   excess   breath   alcohol   was   manifestly   excessive compared to the case of Clotworthy v New Zealand Police.3   Counsel also supported that submission by reference to a number of other decisions, including Samson v New Zealand Police, Hollingum v New Zealand Police and Koopu v New Zealand Police;4

(b)post charge delay in the proceedings should have led to a reduction in the sentence;

(c)      greater  weight  should  have  been  given  to  the  gaps  between  the offending;

(d)      the uplifts for the other offending were not justified;  and

(e)       home detention should have been imposed.

[3]      It is sought to allow the appeal, vacate the sentence of 18 months and replace it with an adjusted sentence of home detention.

1      R v Swenson [2016] NZDC 7715.

2      R v Swenson ]2016] NZDC 10581.

3      Clotworthy v New Zealand Police (2003) 20 CRNZ 439 (HC).

4      Samson v New Zealand Police [2015] NZHC 748; Hollingum v New Zealand Police [2016] NZHC 1291; and Koopu v New Zealand Police [2013] NZHC 1356.

The approach to the appeal

[4]      In  Tutakangahau  v  R  the  Court  of Appeal  confirmed  s 250(2),  Criminal Procedure Act 2011 was not intended to change the previous approach taken by the courts to appeals against sentence.5  While there is no express reference to manifestly excessive the principle is well ingrained in the approach of the Courts to sentence appeals.  The appeal proceeds on the basis that it is necessary for the appellant to show the Court that the Judge erred.

Discussion

[5]     The maximum penalty for a third or subsequent offence is two years imprisonment or a $6,000 fine.  I accept counsel for the respondent’s submission that the amendment and the increase in penalties in the 1999 legislation demonstrates a clear Parliamentary intention that offenders such as the appellant, who are convicted of third or subsequent offences for driving under the influence of alcohol are to be punished significantly more severely than those who were convicted for the first or second  time.    Imprisonment  for  recidivist  offending  is  now  the  usual,  if  not

necessarily, the inevitable consequence.6

[6]      To the extent that the appellant seeks to rely on the ultimate end sentence imposed on Mr Clotworthy of 12 months’ imprisonment as supporting the appeal, the appellant is labouring under a misapprehension.   A reading of the Clotworthy judgment discloses that Mr Clotworthy had pleaded guilty. As Wild J recorded in [6] of that decision on appeal, counsel for the appellant had submitted the sentence under appeal must have contemplated a starting point of 18 months imprisonment because, discounted by the then allowable one-third to allow for the guilty plea, that would have resulted in the 12 months sentence under appeal.   The District Court Judge in that case, although not articulating it, had taken a starting point of 18 months.  To that extent insofar as the appellant argues that this case has similarities with Mr Clotworthy’s case it rather undermines that point or aspect of the appeal,

given that the starting point for the drink driving offence in this case was 17 months.

5      Tutakangahau v R [2014] NZCA 279.

6      R v McQuillan CA129/04, 12 August 2004.

[7]      The other cases referred to by counsel do not particularly assist the appellant. In Samson Whata J made a number of general observations about the appropriate starting points, importantly in this case that multiple offences with seriously aggravating factors would support a starting point of 18 to 20 months.7     Those factors are present in this case.  The level of alcohol involved was significant – 1,156 micrograms per litre of breath, almost three times the legal limit of 400.  While there

was  a  large  gap  in  time  between  the  offending  and  the  previous  drink  driving offences this is the appellant’s eighth conviction (compared to Mr Samson’s fifth) and there was, in addition, the separate charge of dangerous driving, although that itself was not regarded as an aggravating factor to avoid double-counting.   It was however sufficiently bad that a member of the public followed the appellant and called the Police.

[8]      In Hollinghum Dunningham J found a sentence of 15 months imprisonment taking into account a guilty plea could have been imposed and in Koopu 21 months imprisonment was imposed for a combination of an eighth drink driving offence and dangerous driving.  In reducing the end sentence to 12 months the Judge took into account the guilty plea.

[9]      As noted in arriving at the sentence in the present case the Judge took a starting point of 17 months imprisonment for the excess breath  alcohol charge, uplifted it by two months for the dangerous driving, one month for the assault on the police officer, and then uplifted one further month for the appellant’s previous relevant convictions (other than drink driving).   On the basis of totality the Judge then reduced the end sentence to 18 months imprisonment.  There was no guilty plea discount available to this appellant.  Further, the pre-sentence report suggested the appellant was not receptive or willing to engage in rehabilitation to address or assess his offending.  No reduction for personal mitigating factors was available.

[10]     A reduction for the delay in process was argued for.  The Judge did note that submission in her sentencing notes but as Mr Beach submitted did not return to that in the course of her sentencing decision.   No allowance was made for delay and

process.  However, in the Judge’s reserved judgment delivered on 6 May 2016 she

7      Samson v New Zealand Police, above n 4 at [15].

referred in several passages to the course of the proceedings, including applications by the defence under s 22 of the Evidence Act  2006 and s 30 of the Criminal Disclosure Act 2008, and an application for dismissal under s 147, including on the basis that the prosecution had caused undue delay.  The Judge concluded in relation to that application that there had been no systemic delays and that the defendant had not been prejudiced.  She recorded being satisfied there had been no undue delay and therefore a stay of proceedings was not an appropriate remedy.  I accept Mr Beach’s point that on sentencing the issue is a different one, but nevertheless, this Court has the benefit of the Judge’s view as to the aspects of the alleged systemic post charge delay and the reasons for that.  It does appear that a number of the adjournments, and at least part of the delay, was because of the steps taken by the defendant.

[11]     In any event to the extent that any allowance might be otherwise appropriate for post charge delay and/or restrictive bail conditions, albeit I understand they were only imposed for a very brief time, such allowance is more than taken account of by the Judge’s perhaps generous reduction for totality from 21 months to 18 months.

[12]     Standing back and looking at the matter overall as the Court must do, given the totality of the offending in this case, and the appellant’s history, the end sentence of 18 months imprisonment for all the offences, was within range and not manifestly excessive.

[13]     As to the argument for home detention the Judge considered the application for home detention.   She concluded it was not an appropriate sentence given the recidivist and serious nature of the offending, and particularly as the appellant appeared  to  be  resistant  to  engaging  in  any  rehabilitative  process.    The  Judge however suggested that if the appellant became receptive to rehabilitation she would be prepared to entertain home detention on the basis he attend a residential facility such as Odyssey House or Higher Ground.  She left it open to him to apply for home detention if he could arrange such a placement.

[14]     Given the serious recidivist nature of the offending and the content of the pre- sentence report, which recorded that the appellant was assessed as being unsuitable for a community based sentence such as home detention and noted that he continued

to deny the offending, which could impact on his willingness to engage with rehabilitative programmes to address his offending, the Judge’s decision not to grant him home detention from his home was a decision that was open to her.  It is not one that this Court would interfere with on appeal.

Result

[15]     The appeal is dismissed.

Venning J