W v Police HC Auckland CRI-2005-404-218

[2005] NZHC 35

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2005-404-218

BETWEEN  W            Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         12 September 2005

Appearances: Owen Harold for Appellant

Steven Symon for Respondent

Judgment:      12 September 2005

JUDGMENT OF HARRISON J

SOLICITORS

Owen E Harold (Auckland) for Appellant

Meredith Connell (Auckland) for Respondent

W V POLICE HC AK CRI-2005-404-218  12 September 2005

[1]      On 20 June 2005 in the District Court at Waitakere, Judge Heemi Taumaunu sentenced Mr  W   to a total of 22 months imprisonment following his pleas of guilty to and convictions upon separate charges of driving with excess breath alcohol for the third or subsequent occasion and dangerous driving causing injury.  The maximum terms of imprisonment to which Mr W   was eligible were two years and five years respectively.   The sentences imposed by the Judge were 10 months   and   12 months   respectively   but   cumulatively.      Additionally   he disqualified Mr W   from driving for a term of 12 months.

[2]      Mr W    has  appealed  against  these  sentences.     Today  his  counsel, Mr Owen  Harold,  concedes  that  the  Judge  was  entitled  to  make  the  sentences cumulative.  His challenge lies with the length of each separate sentence.

[3]      On  8 January  2004  Mr W    was  stopped  at  a  police  checkpoint  in Te Atatu North.   His breath reading was 456 micrograms of alcohol per litre of breath.  I accept that the count was not of itself particularly high, even though over the level, but it was his seventh offence of this nature.

[4]      Later, during the evening on 2 December 2004, Mr W   became involved in an argument with a member of the public while outside a bar in Glendene.  Bar staff dissuaded him from pursuing his differences with the other party any further. Mr W   then left.  However, he returned in his vehicle which he then drove on to the footpath outside the bar.   His purpose was to drive into a Harley Davidson motorcycle parked against a window.   Mr W   then reversed his vehicle.   In carrying out this manoeuvre, the front wheel of his vehicle ran over the foot of a member of the bar staff.  She suffered serious injuries.  Among other things, her left foot was crushed and a bone in her right foot was broken.  Her legs were in plaster for a total of seven weeks.  She was in a wheelchair for five weeks.  She was unable to work for an extended period and suffered a substantial loss of income as well as emotional distress.

[5]      I can deal briefly with each sentence.  First, Mr Harold does not challenge the Judge’s adoption of a starting point of 15 months imprisonment on the charge of driving  with  excess  breath  alcohol  on  a  third  or  subsequent  occasion.     He

characterises it as being on the high side.  I disagree.  If anything it was generous to Mr W  .    The  Judge  noted  that  he  had  previous  convictions  of  this  nature commencing in 1990.  I note also that at the time of the offending Mr W   was

42 years of age.   The Judge clearly incorporated Mr W  ’ age and offending history into his starting point of 15 months imprisonment.  He was also conscious of the sentencing levels described in the seminal decision of Wild J in Clotworthy v Police (CRI-2003-483-13, Wanganui Registry, 25 September 2003).

[6]      Mr Harold was forced to resort to an argument that the Judge failed to give an appropriate  discount  for  Mr W  ’  plea  of  guilty and  other  mitigating  factors including the relatively low count.  Again in my judgment a discount of five months or 33⅓% was generous.  Conviction was inevitable.  There was little to be said for Mr W   by way of mitigation.  A higher end term of imprisonment would have been justifiable.  I have no hesitation in dismissing Mr W  ’ appeal against the sentence of 10 months imprisonment.

[7]      Second, Mr Harold challenges Judge Taumaunu’s imposition of a term of

12 months imprisonment on the dangerous driving charge.  Again I am satisfied that the starting point adopted by the Judge of 18 months was appropriate and reasonable. He took account of the circumstances of Mr W  ’ offending, the aggravating feature of his previous traffic offences, and the serious (unintended but foreseeable) harm caused to the victim of his crime.  He then allowed the same discount as on the other charge of 33⅓% or six months.  This credit for Mr W  ’ guilty plea was also generous.   Accordingly, I dismiss Mr W  ’ appeal against the sentence of

12 months imprisonment imposed for dangerous driving.

[8]      It was unnecessary for me to call upon Mr Steven Symon for the Crown, but I

acknowledge the assistance given by his succinct written synopsis in opposition to the appeal.

Rhys Harrison J