Telfer v Police

[2012] NZHC 349

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2012-454-000005 [2012] NZHC 349

BETWEEN  KAREN MARGARET TELFER Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         5 March 2012

Counsel:         J A Younger for Appellant

M G Sinclair for Respondent

Judgment:      5 March 2012

ORAL JUDGMENT OF GENDALL J

[1]      This is an appeal against an effective sentence of two years three months’

imprisonment imposed upon Ms Telfer in the District Court at Palmerston North on

15 December 2011, arising out of cumulative sentences for two charges of driving with excess breath alcohol and one charge of driving whilst the appellant’s licence was suspended.

[2]      Orders were made imposing an indefinite period of disqualification from driving and  of confiscation  of Ms Telfer’s  motor  vehicle.   Those consequential orders are not the subject of the appeal.  The cumulative terms that were imposed by

Judge G M Ross were as follows:

for driving  with  excess  blood  alcohol  on  24  October  2011,  the appellant having been convicted at least twice previously of similar

offences – seven months’ imprisonment;

TELFER V NEW ZEALAND POLICE HC PMN CRI-2012-454-000005 [5 March 2012]

fordriving two days later, on 26 October 2011, with excess blood alcohol having been convicted at least twice previously – 13 months’

imprisonment cumulative;  and

for driving on 26 October 2011 whilst the appellant’s driving licence

had been suspended– seven months’ cumulative imprisonment.

Accordingly,   the   total   cumulative   term   was   two   years   and   three   months’

imprisonment.

Background facts

[3]      The  background  is  that  between  1987  and  2009  the  appellant  had  been convicted  on  six  occasions  of driving with  excess  breath  or blood  alcohol.    In addition, she had been convicted of three offences (drink driving related), namely refusing to accompany traffic officers and three of refusing an officer’s request to give blood specimens.   She had two previous convictions for driving whilst disqualified or whilst her licence was suspended.

[4]      On 24 October 2011 she was apprehended on State Highway 1 near Bulls driving a motor vehicle and a breath test disclosed she had 598 micrograms of alcohol per litre of breath.  She was charged with that offence and forbidden from driving and was released on bail.

[5]      Within two days, on 26 October 2011, she was stopped whilst driving in Palmerston North and had a very high breath alcohol reading, namely 1317 micrograms of alcohol per litre of breath.  She must have been severely intoxicated. That is corroborated by the Judge’s notation that I see on the District Court Information Sheet on the first appearance on that day, the notation saying “defendant intoxicated in Court”.

[6]      When it came to imposing sentence Judge Ross referred to the fact that the appellant had appeared many times on charges of “the drink drive kind or related charges [and] on my calculation these are the eleventh and twelfth convictions [but]

sometimes in earlier occasions there have been more than one conviction at the same time”.1   The Judge said that there were “10 previous drink drive charges”.2   He may have miscalculated that because the Crown accept Ms Younger’s contention that in fact there were nine, although in final analysis that may make no difference.

[7]      In imposing cumulative sentences, Judge Ross took as a starting point for the first offence a term of eight months’ imprisonment uplifted he said to “[recognise] the quantity of your previous convictions, save for the earliest drink drive charges, together with other convictions over a lengthy period of time of one kind and another”.3

So from an uplifted term of 10 months’ imprisonment the Judge allowed a 33 per cent discount for the remorse and guilty plea and imposed the sentence of seven months’ imprisonment.

[8]      On the second drink driving charge, the Judge referred to the very high breath alcohol level, that the appellant was driving whilst her licence was suspended, and in defiance of the administration of justice had offended whilst on bail two days after the first offence.   Judge Ross took a starting point of 20 months’ imprisonment reduced by 25 per cent and a further two months to reflect what he said were remorse and other mitigating factors.  On the charge of driving whilst the appellant’s licence was suspended, the Judge noted that this was the third conviction for similar offending and he fixed a cumulative term of seven months’ imprisonment.

[9]      On behalf of the appellant, Ms Younger submitted that the Judge erred in assessing the number of previous breath alcohol convictions because in fact it was only nine and not 10.   But as I have said, that may be of lesser moment when considering the ultimate issue, namely whether the cumulative sentences lead to an effective term that is manifestly excessive.  Ms Younger submitted Judge Ross was wrong to provide an uplift of two months from his starting point on the first charge because, she says, because of previous convictions there was a double counting with the previous convictions in fact incorporated in fixing the starting point.   Counsel

submitted that the appellant was entitled to a 25 per cent discount for a guilty plea in

1      Police v Telfer DC Palmerston North CRI-2011-054-3691, 15 December 2011 at [2].

2 At [6].

3 At [24].

terms of the Supreme Court decision in Hessell v R4  and a further discount for remorse  and  other  personal  factors,  which  was  not  given  by  the  Judge.    Ms Younger’s submissions were that the first offending justified a sentence of no more than six  months’ imprisonment, the second offending no  more than 13 months’ imprisonment  and  the  driving  whilst  licence  was  suspended  no  more  than  two months’ imprisonment, so that in the end a sentence of 20 months was within the range available to the Court and should have been imposed, the effective sentence being manifestly excessive because the starting points taken were too high and that there had been double counting.  Ms Younger submitted the end sentence could have been two years or less and the Court should then have considered the possibility of imposing a sentence of home detention.

[10]     Ms Sinclair, on behalf of the respondent, submitted although Judge Ross may have made an error of fact in referring to the previous convictions as being 10 or 11 rather than 9, as I have said such error would not have made any difference to the outcome.  Ms Sinclair submitted that viewed against similar cases the end sentence was well within the range available to Judge Ross.

Discussion

[11]     The issue in any appeal against sentence is whether the effective end sentence reached by the imposition of the cumulative sentences was manifestly excessive.  In respect of the first offence there can be little quarrel over the starting point of eight months’ imprisonment adopted by the Judge.   That is whether the Court took the previous drink driving and relevant convictions as totalling 9 or 10.  Viewed against

other cases and the well known considerations discussed in Clotworthy v Police,5  a

starting point of eight months was entirely within the available range.

[12]     I do not accept that Judge Ross erred by “double counting” by imposing an

uplift of two months for previous convictions.   The Judge did not say that those

convictions, which justified the uplift were the previous drink driving charges.  He said the uplift was:6

recognising the quantity of your previous convictions, save for the earliest drink drive charges, together with other convictions over a lengthy period of time of one kind and another.

[13]     So apart from the drink driving convictions the appellant had 11 previous convictions  for driving  whilst  disqualified,  dangerous driving  breaches  of home detention contentions and she had served terms of imprisonment.  The Judge’s allowance for the guilty plea of 33 per cent was lenient – indeed high.

[14]     In respect of the second excessive breath alcohol charge the Judge took a starting  point  of  20  months’ imprisonment  and  incorporated  into  that  the  quite serious aggravating features of the very high level of breath alcohol, that the offence occurred only two days after the earlier similar offence and that the appellant was on bail. The discount for the guilty plea of 25 per cent was also lenient.

[15]     Ms Younger has submitted that having regard to the Supreme Court decision in Hessell a 25 per cent discount should have been allowed for the guilty plea plus an additional significant percentage for remorse and personal factors.  What in fact the Supreme Court said was that 25 per cent was the maximum that should be given as credit for a guilty plea and remorse if truly present may reflect some additional credit, but in the end the credit to be given had to reflect all the circumstances in which the plea was entered.  That included the strength of the prosecution cases and the Court had to identify the true extent or the extent of the true mitigatory effect of the plea.   Of course, an additional allowance may be made in proper cases for genuine remorse and contrition.  But sentencing is not a mathematical exercise and requires the measured application of judgment to the particular circumstances of the offender and the offence.  In this case no defence could possibly have been mounted to either or both charges and guilt was inevitable.   But plea was deserving of a discount although I doubt whether it should have exceeded on its own 20 per cent.

But in any event an allowance of a further discount of two months to reflect personal

6      Police v Telfer at [24].

circumstances of the appellant such as her addiction to alcohol and remorse was allowed by the Judge and could not be criticised as being inadequate.

[16]     For the driving whilst her licence was suspended the Judge took a starting point of nine months’ imprisonment given that the appellant had had two previous convictions for such offending and the allowance of two months for the guilty plea could not be criticised.  But the ultimate issue of course is to stand back and view the effect of the cumulative sentences as a whole, and whether the outcome of the sentencing process  has  been  such that  the effective term  imposed  is  manifestly

excessive. The Court of Appeal said in R v McQuillan:7

The survey by Wild J in Clotworthy demonstrates that such a pattern of repeat drink driving offending is unfortunately not rare in New Zealand, and that Judges of the High Court have consistently upheld sentences of imprisonment in the order of the twelve month terms which were imposed for the separate instances of offending in this case.  Imprisonment is clearly now  the  usual,  if  not  necessarily  the  inevitable,  consequence  of  such recidivist offending.

[17]     As I have said, sentencing is not an exact science and the circumstances of all the offenders and the offending are infinitely variable.  Ms Younger emphasises that like offenders and offences should be treated similarly and refers and relies on the decision of Ellis J in Walsh v Police,8 which counsel submits is on all fours with the case involving Ms Telfer.   That resulted in an effective sentence of two years’ imprisonment.   In  Walsh’s case there had been more than one offence, he was driving whilst disqualified, and had a significantly worse list of convictions than this appellant.   But there are distinguishing features (which will almost always be the

case).  In Walsh the last breath or blood alcohol conviction was seven years before the one for which he was sentenced, whereas in this case Ms Telfer’s last convictions were two years prior.  In Walsh’s case his breath alcohol level was 858 micrograms whereas in Ms Telfer’s case it was very high at 1317 micrograms.

[18]     There are other cases which can be seen as examples of final sentences of

12 months’  imprisonment  for  offenders  with  previous  drink  driving  convictions.

These include Wallace v Police,9  a decision in the High Court at Palmerston North where there was one charge of excess breath alcohol, one of driving whilst disqualified  and  nine  previous  convictions  for  excess  breath  alcohol.    In  the District Court sentencing decision of Police v Herewini,10  the defendant had twice offended having five previous charges of excess breath alcohol and was on bail from earlier offending with his licence suspended.  So the facts are quite similar.  There the Judge took a starting point of two years’ imprisonment and discounted it substantially for guilty pleas and remorse, resulting in a final sentence of 12 months’

imprisonment.

[19]     Those  examples  highlight  the  uniqueness  of  the  sentencing  exercise  but illustrate that the first sentence of imprisonment in this case, namely seven months was well within range.  Likewise the term of 13 months imposed for the offending two days later is equally unchallengeable.  What I have to do is to stand back and look  at  whether  the  final  outcome  reached  by  a  cumulative  sentence  of  seven months’ imprisonment for driving whilst disqualified is manifestly excessive.  The individual sentences themselves could well be justified, but when viewed cumulatively the end result is excessive.  It may be tinkering but I propose to reduce the term of imprisonment on the charge of driving whilst the licence is suspended to five months’ imprisonment cumulative on the other two sentences.   That should suffice.

[20]     So the effective end sentence is two years and one month imprisonment.  No question of home detention arises.  Even if I had been able to reach the stage where a sentence of imprisonment of short duration would have been appropriate so as to give  the  Court  jurisdiction  to  impose  home  detention,  I  would  not  have  been prepared to do so given the appellant has two previous convictions for breaching home detention during 2009.

[21]     So the appeal is allowed to that extent.  For the benefit of the appellant she should know that she would be eligible for parole after approximately eight months,

the reality being that is a shorter period than what the term of home detention might

have been, strange as it seems.

J W Gendall J

Solicitors:

J A Younger, Palmerston North for Appellant
Crown Solicitor, Palmerston North for Respondent