Thwaites v Police

[2014] NZHC 642

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2013-412-000035 [2014] NZHC 642

JOHN MICHAEL THWAITES

v

NEW ZEALAND POLICE

Hearing:                   2 April 2014

Appearances:           R D Checketts for Appellant

M J Grills for Respondent

Judgment:                2 April 2014

JUDGMENT OF DUNNINGHAM J

[1]      This  is  an  appeal  against  a  sentence  of  14  months  imprisonment  and

18 months disqualification imposed on a charge of driving with excess blood alcohol on the third or subsequent occasion.

[2]      The  sole  ground  of  appeal  is  that  the  end  sentence  of  14  months imprisonment is out of step with the range of sentences for this type of offending as discussed in the High Court’s decision in Clotworthy v Police1.  As a result, the end sentence is manifestly excessive.   I note that the period of disqualification of 18 months is not challenged.

[3]      The circumstances in which the offence took place were fully described in the District Court Judge’s sentencing notes.   Mr Thwaites, on 9 September 2013, was driving a campervan which broke down.  He tried to clutch start it.  Unfortunately he

ended up losing control and rolling the van.  The police were called and Mr Thwaites

1      Clotworthy v Police (2003) 20 CRNZ 439 (HC).

THWAITES v NEW ZEALAND POLICE [2014] NZHC 642 [2 April 2014]

subsequently had a blood test that showed a level of 200 milligrams of alcohol per

100 millilitres of blood. The legal limit was 80, so it was obviously a high reading.

[4]      Importantly, this is the eighth conviction for excess blood alcohol offending for Mr Thwaites.   He has seven previous convictions beginning in 1975 and continuing  throughout  the  late  seventies,  eighties  and  nineties  with  the  last conviction being in 2000.

[5]      The Judge discussed the 10 factors which are set out in  Clotworthy and counsel is generally agreed on his assessment of those factors, except on two points. In terms of the breadth or alcohol level, it is agreed that is high.   In terms of the length of time that has elapsed since the last drink driving conviction, it is accepted that it is a long gap and that works in the appellant’s favour.

[6]      This is not a case where there has been a recent conviction for two or more drink driving offences in close succession.  In terms of the manner of driving, it is noted by the appellant that only he was in the van, it was on a country road and, it was a low speed crash and did not involve any other vehicles.  However, it is noted in the respondent’s submissions that it did result in him losing control on State Highway 85 and rolling the van, but implicitly it was a more serious type of accident than perhaps the appellant’s counsel suggests.

[7]      The offender was not disqualified or forbidden from driving at the time, so this does not contribute to the end sentence.  It is also agreed by all parties that an early guilty plea was entered and that a full discount should be recognised for that. When you look at the sentence imposed for previous EBA convictions and response or lack of it to that sentence, there has been a sentence of imprisonment and there has been repeated offending, although of course we go back to the fact that there has not been offending since 2000.

[8]      The offender does have a record of convictions for other types of offending. The offender has shown remorse and has taken some steps to address his drinking problem.  The Judge put slightly less weight on that than is urged on me today by Mr Checketts, who has updated me today with the further work that the appellant has

done to address that drinking problem.   The final issue in Clotworthy of any mitigating personal family circumstances did not feature in the decision, nor in the submissions I have heard today.

[9]      All in all there is little difference in the assessment of the gravity of the offending or the offender’s personal circumstances, and there was no error in the Judge’s consideration of these.

[10]     However, I also consider I am entitled to take into account that the decision in Clotworthy is an 11 year old decision, and public attitudes to drink driving have firmed since then.  A sentence which is at the high end of the range identified in Clotworthy, could not necessarily, in my view, be seen to be manifestly excessive and that is the question before me today.

[11]     Accordingly,  having  considered  all  the  matters,  while  I  accept  that  the sentence is at the high end of the sentences which are discussed in the decision of Clotworthy, I do not think that the Judge has erred and I do not think that the end sentence is manifestly excessive. Accordingly, the appeal is dismissed.

Solicitors:

Checketts McKay Law, Alexandra

Wilkinson Adams, Dunedin