The Queen v Antony John Cartwright
[2002] NZCA 210
•28 August 2002
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA175/02 |
THE QUEEN
V
ANTONY JOHN CARTWRIGHT
| Hearing: | 27 August 2002 |
| Coram: | Blanchard J Robertson J Panckhurst J |
| Appearances: | M J Callaghan for Appellant B J Horsley for Crown |
| Judgment: | 28 August 2002 |
| JUDGMENT OF THE COURT DELIVERED BY ROBERTSON J |
This is an appeal against sentences imposed on 23 May 2002. Mr Cartwright appeared in the District Court at Timaru on four driving charges and two breaches of a protection order which had been granted for the benefit of his separated wife. This is yet another case where there is a combination of indictable and summary jurisdiction charges. As both counsel agree, it is appropriate because of the totality principle that all matters be considered in this Court (R v Jefferies [1992] 1 NZLR 134).
The specific instances in chronological order which led to the charges were:
(a) 22 December 2001 he drove a motor vehicle while disqualified and while he had a blood alcohol level of 265 milligrams of alcohol per 100 millilitres of blood.
(b) 5 January 2002 he breached a protection order.
(c) 11 March 2002 he drove while disqualified and drove with a breath alcohol level of 1245 micrograms of alcohol per litre of breath.
(d) 4 April 2002 he further breached the same protection order.
The driving offences on 11 March 2002 occurred while Mr Cartwright was on bail in respect of the two driving offences from 22 December 2001.
The breach of the protection order on 4 April 2002 occurred while Mr Cartwright was on bail in respect of the 5 January 2002 breach of protection order.
In respect of some of these charges, Mr Cartwright initially elected trial by jury but after depositions he eventually pleaded guilty to all charges.
Mr Cartwright has previous convictions for driving with excess breath alcohol in 1988 and with breath blood alcohol offences in September and October 2001.
The appellant has a conviction for driving while disqualified in 2001.
He also has other convictions for breaching the same protection order in September and November of 2001.
In other words he was for sentence on his 4th and 5th drinking and driving charges, his 2nd and 3rd disqualified driving charges and his 3rd and 4th breach of a protection order.
The sentencing Judge referred to Mr Cartwright’s difficulty and dysfunction both through alcohol abuse and in his domestic situation which were the background of this matter and concluded:
I think there is something in the submissions made by Crown counsel that in situations such as you present the Court there needs to be a sentence which combines both protection for the public – that is the driving public – and also the beneficiaries of the protection order and a need for deterrence to show you and to show others that the Courts will take a stern approach to multiple offending on this scale and at the levels that you have exhibited.
The Judge considered each of the incidents of offending, determined a gross starting figure, made an allowance for a plea of guilty and then, on the basis of the totality of the sentencing, considered issues of concurrent and cumulative sentences to reach an effective overall sentence of two years imprisonment. He declined to either suspend the sentence or to permit an application to be made for home detention.
As was inevitably the case, he imposed periods of disqualification which are not challenged before us.
The appeal against sentence is advanced on the basis that:
(a) two years imprisonment was manifestly excessive
(b)there should not have been any accumulation of sentences (although with respect, that is rather a variation on the same theme as the first ground)
(c) leave should have been granted to apply for home detention specifically because:
[i] the appellant had now moved from the district in which the protected person was living
[ii] there would be no further contact between the appellant and the protected person
[iii] there would be no repeat of the more serious aspects involved in the incident of 5 January 2002.
On four of the individual charges he was liable to a term of imprisonment of two years.
It is of the prime importance to keep in mind the total circumstances of the individual offences, particularly as they are to be seen in light of his background and his demonstrated attitude towards court orders and the rights of others, both those within his own intimate circle and the wider road using public.
Mr Callaghan, in comprehensive and a carefully presented submission, argued that the issue of cumulative sentences was of critical importance. He counselled against the danger of a duplication of aggravating factors in determining the length of each sentence, referring particularly to the decision of this Court in R v M (CA117/00, 8 June 2000).
He argued that the sentencing Judge had already taken into account the aggravating factors of multiple offending in determining the base sentences which he adopted. Accordingly the decision to make the longest terms for drinking and driving (sixteen months) and the breach of a protection order (eight months) cumulative involved an element of doubling up.
It is unhelpful to enter into a minute dissection of previous cases for indications of sentencing for either breaches of protection orders or for offences under the Land Transport Act 1998. A Court has a clear duty to reflect the total culpability but to maintain balance and proportionality. (R v Wu CA 65/02, 12 June 2002).
Counsel accepted that the sentences imposed on the driving charges were within range but submitted nonetheless that it was important that there should be, and be seen to be, even-handedness in sentencing for like offences. That submission must be correct but the issue is what in fact is ‘like-minded offending’.
It appears to us that the salient features in respect of this appellant are that:
(a)The Court was dealing with a mature man. Mr Cartwright was 37 years of age. He was past the age where one would have expected a sense of responsibility and respect for others would have emerged.
(b)Mr Cartwright was no stranger to the Courts. He had, in a short period of time, flouted Court Orders and placed himself and others in jeopardy while driving when substantially effected by alcohol.
(c)Previous sentences have been ineffective as a deterrent.
(d)The Court had a duty to condemn those who persistently ignore orders of the Court.
(e)People who have protection orders in their favour are entitled to expect that the Court will uphold the integrity of that protection and respond sternly to those who flout their force and effect.
It was argued on his behalf that the breach of protection order in January 2002 was minor because “the extent of the offending is limited to a broken window and a threat”. We reject that submission. A protection order is to ensure that the recipient is secure and inviolate. For a person who has a protection order in her favour to be subjected to the person from whom she is to be protected arriving at her home at 11.50pm having at 7pm advised that he was going to “get the complainant’s car”, banging on the door and demanding the car and subsequently banging on the window until it was smashed was intolerable. In our judgment this was a serious breach.
It was further argued that the Court should take into account the fact that the appellant himself was, on that occasion, assaulted with a cricket bat. Whether that is the case is open to debate but it is clear that any incident of that type was retaliatory and the entire incident began with Mr Cartwright’s intolerable intrusion.
We accept that the second charge of breaching the protection order involved only a phone call without comment, but it was nonetheless a further intrusion and invasion and, despite the incontrovertible evidence of his offending, Mr Cartwright remained in denial.
Although on previous occasions the appellant may only have been fined on one occasion and convicted and discharged on another for breaches of the protection order, the point is reached where, if there is to be any integrity in the system, there must be penalties which have some bite. With third and fourth offences within a period of six months, that time has certainly arrived.
In respect of the driving offences, the alcohol concentrations on each occasion were high. The fact that Mr Cartwright was intending to defend the first on the basis of there being no actual driving, and that he entered pleas of guilty only once it was disclosed that there had been a movement of the vehicle involved, was revealing. It suggests a man endeavouring to avoid responsibility for his own behaviour.
Although there were no adverse driving incidents, and certainly no injury or damage, with these alcohol levels the potential which existed cannot be ignored. Again a critical factor is that there were four separate incidents of drinking and driving in a period of six months. Three of those involved driving while disqualified.
We are of the view that, however this raft of offending is put together, and giving allowance for the fact that there were eventually pleas of guilty (although one would have anticipated them at a much earlier stage) it could not possibly be said that the total sentence of two years was outside the properly available sentencing range. The starting point cannot be criticised.
It is then argued that, in any event, Mr Cartwright should have been granted the ability to apply for home detention. Section 21D of the Criminal Justice Act 1985 provided a wide discretion which is not fettered by formulating any fixed rules for its exercise. Section 21D(3) is not an exhaustive list and, as has been made clear on previous occasions, this Court will not readily interfere with discretionary assessments (R v Barton [2000] 2 NZLR 457).
It is clear that the learned sentencing Judge took into account the submissions which he had heard and reached the view that in this case, just as had been the position with regard to the then possibility of a suspended sentence, an application for leave to apply for home detention was not appropriate. He said this on inter-related points:
I then have to deal with counsel’s submission relating to suspension of that term because if it is between six months and two years I can suspend it, but I think in view of my comments about the aggravating features, the need for protection of the public and the need for deterrence it would be totally inappropriate for me to exercise my discretion in your favour and you will have to serve that maximum sentence of two years imprisonment.
It has not been suggested to us that the Judge was wrong to decline to suspend the sentence.
Later the Judge said:
I failed to deal in your case with the matter of home detention which was another of the statutory matters I have to attend to. For the same reasons that I fail to exercise my discretion to suspend your sentence, I think it would be inappropriate that you be given leave to apply for home detention and that is for those same aggravating reasons that the number, extent of your offending, that you offend whilst you are in the home. I do not think it is appropriate and leave to apply is refused.
We cannot see how it could be said that the Judge’s approach was wrong in principle, or that it was an unavailable exercise of his discretionary power. This was a persistent offender who, by his actions, was placing intolerable pressure and stress on his separated wife and frequently flouting the Court’s orders. As a result it was clearly available to the Judge to conclude that Mr Cartwright had forfeited his right to be in the community.
It has been drawn to our attention that the separated wife is to leave the jurisdiction in September and it is submitted that this was a development subsequent to the sentencing which makes a material difference. We are not persuaded that it can be concluded that if the sentencing Judge had known of this at the time of sentencing, it would have altered his decision with regard to the granting of leave to apply for home detention. It is to be remembered that these offences were not merely offences committed against the separated wife, they were offences against the community as a whole. Mr Cartwright, and others like him, must realise that if they will not or cannot abide by the necessary rules which are necessary in a safe and civilised society, then they can expect that their freedom will be curtailed.
We are not persuaded by any part of the argument advanced and the appeal against sentence is accordingly dismissed.
SOLICITORS
Cavell, Leitch, Pringle & Boyle, Christchurch
Crown Law Office, Wellington
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