Toetoe v Police

[2013] NZHC 2686

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2013-463-66 [2013] NZHC 2686

BETWEEN	MARK TOETOE Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	15 October 2013
Counsel:	GAM Schweizer for Appellant N Tahana for Respondent
Judgment:	15 October 2013

JUDGMENT OF BREWER J

Solicitors/Counsel:           GAM Schweizer (Rotorua) for Appellant

Gordon Pilditch (Rotorua) for Respondent

TOETOE v POLICE [2013] NZHC 2686 [15 October 2013]

[1]      Mr Toetoe appeals his sentence of 18 months’ imprisonment handed down by Judge CJ McGuire in the District Court at Rotorua on 23 September 2013.1    The sentence was imposed as a consequence of the appellant’s eighth conviction for driving with excess breath alcohol.   In this case, the appellant was stopped on a routine vehicle check on 6 June 2013.   He was found to have a breath alcohol reading of 692 micrograms of alcohol per litre of breath.

[2]      The District Court Judge decided that, having regard to the appellant’s record, he should adopt a starting point of two years’ imprisonment.  That is the maximum term of imprisonment provided for by the statute.  The District Court Judge allowed a 25% discount for the appellant’s early plea of guilty.  In addition, the appellant was disqualified from holding or obtaining a driver’s licence for a period of 18 months, and the District Court Judge ordered general and special release conditions to apply for six months.

[3]      The appeal is brought on the ground that the sentence is manifestly excessive. Counsel for the appellant, Mrs Schweizer, develops this ground in careful and cogent submissions. I will come back to them shortly.

[4]      I note at this point that the only factor relevant to the appellant’s actual driving on this occasion is that he did not have a current driver’s licence.  He had lost his licence for previous offending and had not re-applied, although he was eligible to do so.

[5]      The appellant’s criminal record is of obvious relevance.   The appellant is

44 years old and his record commencing in 1984 is quite extensive.  His convictions for excess breath alcohol were in respect of offending which took place in 1987,

1988, 1990 (x2), 1991, 2001 and 2010.   He was sentenced to short terms of imprisonment for the 1988, 1990 (both occasions), 1991 and 2010 offending.

[6]      Other driving related offending includes 15 convictions for driving while disqualified entered from 1987 to 2011.

[7]      On the occasion of his sentence on the current offence, the appellant could point to a dawning realisation of the problem he has with alcohol, as evidenced by positive progress reports on his drug and alcohol counselling.  He had acquired his first job in 20 years and this position is still open to him.  The pre-sentence report recommends community detention and intensive supervision.

[8]      An appeal against sentence proceeds by way of rehearing. That means I have to look at all of the circumstances of the appellant’s offending but I will not disturb the District Court Judge’s sentence unless I find that he fell into error which resulted in a final sentence which is manifestly excessive or inappropriate.  There is a gloss on that insofar as Mrs Schweizer seeks to uphold the sentence of community detention and intensive supervision.   Where sentencing involves the exercise of a discretion, the standard error analysis applies.

[9]      Mrs Schweizer submits that the District Court Judge erred in setting the starting point at two years’ imprisonment.  This is the maximum sentence available for this offence, yet the circumstances cannot be said to be the most serious of their kind.  Further, the District Court Judge, she submits, erred by failing to give credit for the appellant’s genuine remorse and for the steps he was taking to rehabilitate himself.   Finally, Mrs Schweizer submits that the District Court Judge failed to follow the sentencing principle of imposing the least restrictive sentence appropriate. He should have followed the recommendation in the pre-sentence report.

[10]     In   her   oral   submissions,   Mrs Schweizer   reinforces   this   argument. Mrs Schweizer points out that although, throughout his lengthy criminal history, the appellant has received many sentences of imprisonment, he has never before been subjected  to  a  sentence  of  community  detention  and  intensive  supervision. Mrs Schweizer’s submission is that the appellant has reached a turning point in his life. For the first time he is receiving one-on-one counselling.  This is having a real effect.  Mrs Schweizer submits that the interests of the community will not be served by imprisoning the appellant yet again.  The community would be better served, and indeed made safer, if he were to have his movements restricted and be subject to intensive supervision.  Mrs Schweizer tendered for my attention a letter from Carol Mackie who is the appellant’s long-time partner.  The letter is heartfelt and makes it

chance.

[11]    Counsel for the respondent accepts that the District Court Judge erred in adopting as a starting point the statutory maximum of two years’ imprisonment. Ms Tahana’s submission is that nevertheless a sentence of imprisonment is required by law.

[12]     In my view, this appeal will be determined by having regard to the relevant case law.  It is evident that the differing circumstances of each case have resulted in quite a range of sentences.  That is to be expected.  However, there is an identifiable range and I now turn to consider it.

[13]     As counsel have pointed out, the decision of Wild J in Clotworthy v Police2 is widely regarded as useful.  That was a case where the offender had been sentenced for his seventh conviction of driving with excess breath alcohol. His breath alcohol level was 764 micrograms of alcohol per litre of breath.  Wild J set out 10 factors as being  relevant  to  sentencing.     His  conclusion  was  that  the  end  sentence  of

12 months’ imprisonment  was  not  manifestly  excessive  given  that  it  had  been approximately eight years since the last conviction, Mr Clotworthy’s guilty pleas, the relatively low breath alcohol level, no suggestion of bad driving and his personal circumstances.

[14]     I go through for this case the factors identified by Wild J:

(a)       Breath  alcohol  level:  At  692,  this  can  be  described  as  perhaps moderately high.

(b)Length of time elapsed since last drink driving conviction: Two years and 10 months.

(c)       Conviction for two or more drink driving offences in close succession:

The appellant’s convictions span a period of 23 years.  The first five

offending recommenced after the turn of the millennium. (d)  Manner of driving: Unexceptional.

(e)       Whether  offender  was  disqualified  or  forbidden:  He  was  not.

However, he did not have a licence.

(f)       The plea: A plea of guilty was entered at an early stage.

(g)The sentences imposed for previous breath alcohol convictions and the response to those sentences: As I have noted, the appellant has previously been sentenced to a number of periods of imprisonment for his drink driving convictions.  He also served a sentence of periodic detention. Clearly, these sentences have not had a deterrent effect.

(h)Record of convictions for other types of offending: The appellant has a long list  of  other convictions.   In  addition to  the convictions for driving whilst disqualified, which I have referred to already, there are other convictions which demonstrate that the appellant has difficulties complying with Court orders.   These include two convictions for breaching protection orders, five for breaching community service, one for failing to answer bail and three for breaches of supervision.

(i)Any genuine remorse and willingness to confront alcohol issues: The appellant has stated that he has genuine remorse and it is clear that he has taken at least initial steps to undergo counselling for his alcohol issues.

(j)Mitigating  personal  or  family  circumstances  contributing  to  the offending: The only personal circumstance of mitigation that has been advanced is the appellant’s recent obtaining of fulltime employment.

[15]     I have taken these circumstances and I have looked at the cases which have been referred to me by counsel.  I have considered other cases, which I will refer to

a 16 months starting point for the appellant’s eighth drink driving offence.  The final sentence was 12 months’ imprisonment.   The two cases are not identical in their circumstances. As I have said, they almost never are.  I also note Kucenko v Police,5 where Fogarty J upheld a starting point of 20 months’ imprisonment on a tenth conviction for drink driving where the offending took place in a period of over

40 years.

[16]     In my view, the learned District Court Judge erred in adopting a start point of two years’ imprisonment.   The appellant’s record of driving with excess breath alcohol fits into two phases with a 10 years gap between 1991 and 2001.  There was then a nine years gap between 2001 and 2010.   Neither that history, nor the circumstances of the current offence, put the appellant in the most serious category of offender.

[17]     On the other hand, in my view his overall record of offending makes a sentence of imprisonment inevitable.  I have listened carefully to Mrs Schweizer’s submissions.  However, with a man of 44 years and with the record that he has accumulated, the sentence package as recommended in the pre-sentence report is simply not available.

[18]     I also agree with the District Court Judge that the steps taken by the appellant towards rehabilitation, while encouraging, should not be given weight in his sentencing.  They are too little and too late.  The Supreme Court in Hessell makes it clear that for remorse and rehabilitation to be given any real effect they have to be demonstrated as being palpably real and leading to a realistic change in lifestyle.6

[19]    In my view, a starting point in the range of 16 months to 18 months’ imprisonment is justified.  I will adopt the end of the range most favourable to the appellant of 16 months’ imprisonment.  He is entitled to the full 25% discount and

this results in a final term of imprisonment of 12 months.

3      R v McQuillan CA129/04, 12 August 2004; Hakiwai v Police [2012] NZHC 2625.

4      Koopu v Police [2013] NZHC 1356.

5      Kucenko v Police [2012] NZHC 3398.

6      Hessell v R [2011] 1 NZLR 607; (2010) 24 CRNZ 966.

[20]     The appeal is allowed.  The sentence of 18 months’ imprisonment is quashed and a sentence of 12 months’ imprisonment is substituted.  I think it appropriate that the period of disqualification from holding or obtaining a driver’s licence should extend beyond the term of imprisonment and I adopt the District Court Judge’s period of 18 months’ disqualification commencing on 23 September 2013.

[21]     I also impose the general and special release conditions imposed by the

District Court Judge and set out at [5] of his sentencing notes.

Brewer J