Walsh v Police HC Auckland CRI-2010-404-481
[2011] NZHC 263
•28 March 2011
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2010-404-481
LAWRENCE WALSH
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 21 March 2011
Appearances: K Brosnahan for the Appellant
Y Clarisse for the Respondent
Judgment: 28 March 2011
RESERVED JUDGMENT OF ELLIS J
This judgment was delivered by me on 28 March 2011 at 2 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors: Crown Solicitors, PO Box 2213, Auckland 1140
Counsel: K Brosnahan, PO Box 3051, Auckland 1140
WALSH V POLICE HC AK CRI-2010-404-481 28 March 2011
[1] Following a defended hearing in the Auckland District Court Mr Walsh was convicted of driving with excess breath alcohol and driving whilst suspended. He was sentenced cumulatively to 18 months and 12 months imprisonment, resulting in an effective end sentence of two and a half years. Mr Walsh appeals this sentence on the grounds that it was manifestly excessive.
[2] Both offences occurred on 24 August 2008. Mr Walsh was driving along the Auckland motorway. His vehicle struck the median barrier, bursting two tyres. He was breathalysed by a police officer. His breath alcohol reading was
858 micrograms, slightly over twice the legal limit. He was then taken to the police station for evidential breath testing and his car was left parked on the side of the road.
[3] The automatic consequence of Mr Walsh’s breath alcohol reading was that his driver’s license was immediately suspended for 28 days. However, after he had been “processed” at the police station he returned to his vehicle. He then drove it some
700 metres to the BP station on Khyber Pass Road. It was apparent that the vehicle had two burst tyres and a station attendant called the police. Although Mr Walsh initially claimed that his partner had driven the vehicle to the petrol station, evidence yielded by the CCTV cameras did not support that. Mr Walsh’s claim that his partner had been driving at the time of the earlier incident was also rejected.
[4] Mr Walsh has at least 11 previous convictions for driving with excess breath alcohol (EBA). However, the last such conviction (prior to the one presently at issue) was some seven years ago. Mr Walsh also has 24 previous convictions for driving whilst suspended (DWS). He has a further conviction for dangerous driving causing injury.
[5] The maximum applicable penalties for the two offences are two years imprisonment or a fine not exceeding $6,000 and disqualification for more than a year (EBA), and two years imprisonment or a fine not exceeding $6,000 and a one year disqualification (DWS).
[6] In sentencing Mr Walsh, the learned District Court Judge had particular regard to Mr Walsh’s number of previous convictions as well as the fact that the EBA charge involved dangerous driving, Mr Walsh having struck the median barrier. His Honour also noted that no guilty plea had been entered and said he was not satisfied that the remorse subsequently expressed by Mr Walsh was genuine. There were no personal circumstances that warranted a discount. In terms of the decision to impose cumulative rather than concurrent sentences the learned Judge said
... In respect of the charge of driving whilst suspended, I believe, as I have indicated, this is an entirely separate charge that arose at an entirely separate point in time some hours after the drink driving incident.
[7] There is no express discussion of the totality principles contained in the sentencing notes.
[8] The principal grounds advanced in support of the appeal are that the sentence imposed was manifestly excessive and that the learned District Court Judge failed to have due regard to:
(a) The length of time since Mr Walsh’s last conviction;
(b)Mr Walsh’s personal circumstances (the pre-sentence report refers to his recent efforts “to better himself”, his starting up a company, employing a staff of up to 14 people, giving up alcohol and attending a residential bridge programme as well as being in a stable relationship and providing guidance and assistance to his defacto partner’s son); and
(c) The totality principle.
Discussion
[9] As Simon France J said in O'Sullivan v Police,1 sentencing for successive separate driving events on the same occasion is always complex. However I am of
1 O'Sullivan v Police HC Wellington CRI-2008-485-89, 2 October 2008.
the view that some adjustment to the sentence is needed here, in particular to reflect totality concerns. In other words, it seems to me that the learned District Court Judge’s decision to impose cumulative sentences resulted in a total period of imprisonment that was wholly out of proportion to the gravity of the overall offending (and thus contrary to the Sentencing Act s 85(2)).
[10] I am fortified in that view by reference to two decisions that have been referred to me involving circumstances not dissimilar to the present: R v McQuillan2 and Adams v Police.3
[11] As to the first of these, Mr McQuillan was apprehended for driving while disqualified and having an excess blood alcohol concentration of 750 micrograms of alcohol per litre of breath. He pleaded not guilty to those charges but then absconded. He was later apprehended, again driving while disqualified and this time having a level of 186 milligrams of alcohol per 100 millilitres of blood. Having initially elected trial by jury on the earlier matters, he eventually entered guilty pleas to all the charges that he faced shortly before the commencement of his trial.
[12] The District Court Judge imposed cumulative sentences of 12 months imprisonment in respect of both sets of charges. He considered that Mr McQuillan was entitled to little credit in respect of the guilty pleas relating to the earlier charges because they were made very late. He had also served terms of imprisonment in the past, both for driving offences and offences including violence. The Probation Officer had reported that the offender had no real motivation to address his problems with heavy drinking. He had been given the benefit of attending various courses but had continued to offend. The Judge was of the view that an aggravating feature of the later offending was that it had occurred whilst the earlier charges were still outstanding. This rendered the later offending more serious than the earlier offending. Notwithstanding this fact, he took the view that the totality principle
meant that an overall sentence of two years imprisonment was appropriate.
2 R v McQuillan CA 129/04, 12 August 2004.
3 Adams v Police HC Christchurch CRI-2006-409-237, CRI-2006-409-238, 20 February 2007.
[13] For reasons that are presently irrelevant, the matter went to the Court of Appeal. Although it ultimately reduced the length of the sentence imposed on the offender for other reasons, the Court took the view that the overall term of imprisonment initially imposed by the District Court was not disproportionate to the gravity of the overall offending. The Court said:
[23] The two sets of offending for which the appellant was sentenced took place within a 12 month period between April 2002 and March 2003. That is a serious matter in itself. The sentencing Judge was however also required to take into account a further aggravating circumstance which graphically demonstrated the appellant's contemptuous attitude to his responsibilities. All repetitive drink driving offending by disqualified drivers involves disobedience of court orders as well as disregard for public safety. In the case of the appellant, at the time he offended in Christchurch he knew that the Cromwell charges remained outstanding and that the Court had not been able to deal with them because he had run away from Central Otago. A warrant for his arrest had to be issued. The appellant did not desist from his dangerous conduct and the warrant was executed by the police when the appellant came to their attention as a result of the Christchurch offending. Only then did he face the inevitable and plead guilty to the Cromwell charges in Christchurch.
[24] This context indicates that the Judge was entitled to treat the Christchurch offending as being particularly serious. Little credit could be given to the appellant for his plea to the Christchurch charges given the inevitably of his conviction for that offending. The Court was required by s85(1) of the Sentencing Act 2002 to impose a sentence that reflected the seriousness of that offence and, given the aggravating circumstances mentioned, it would have been open to the Judge to impose a term of imprisonment that was closer to the maximum. It was also open for the Judge to deal with the gravity of the matter, as he did, by imposing a cumulative sentence for the Christchurch charges. The overall sentence reflected the failure of previous shorter terms of imprisonment for drink driving offences to bring home to the appellant his responsibilities, and the need to deter him from further repetition of his offending in the interest of public safety. In the context in which the Christchurch offending took place in succession to that in Cromwell, we consider that the overall term of imprisonment imposed by the District Court is not disproportionate to the gravity of the overall offending. The requirements of s85(2) of the Sentencing Act are accordingly met.
[14] In the Adams case Mr Adams pleaded guilty in the District Court to two EBA charges, a charge of dangerous driving and a charge of breaching his bail. He was sentenced to 10 months’ imprisonment on the first EBA charge and to 18 months on the second charge, to be served cumulatively. The first offence involved Mr Adams crossing the centre line while travelling north on State Highway 1. His breath alcohol was 881 micrograms of alcohol per litre of breath. Having pleaded guilty to
that offence, Mr Adams failed to appear for sentence and a warrant was issued for his arrest and there was a further charge laid in relation to his breach of bail. The second offence occurred while he was still at large, some six months later, when he was again seen crossing the centre line, forcing other vehicles to take evasive action as a result. On that occasion he returned an evidential breath test producing a reading of 940 micrograms of alcohol per litre of breath. The two convictions for which he was before the Court were the twelfth and thirteenth convictions respectively for Mr Adams driving with excess breath alcohol.
[15] Significantly, in imposing cumulative sentences of 10 and 18 months imprisonment respectively the learned District Court Judge expressly eschewed an application of the totality principle. On appeal it was accepted by the Crown that this was an error. It was acknowledged that: once the Judge had decided to impose cumulative sentences, he was bound to consider whether the individual sentences that he had selected properly reflected the totality of Mr Adams’ offending.
[16] Ultimately Lang J allowed the appeal and substituted a final effective sentence of 25 months imprisonment.
[17] Although there is, in my view, little difference in terms of the seriousness of Mr Walsh’s EBA offending and the EBA offending of Messrs McQuillan and Adams, it is in Mr Walsh’s favour that the relevant offending in those cases comprised two EBA charges whereas in Mr Walsh’s case there is only one (DWS being a less serious charge). And, although no specific issue was taken by Mr Walsh as to the appropriateness of cumulative sentences in his case, it is at least arguable that, by virtue of the temporal proximity of the two offences, the appropriateness of that approach is somewhat less clear cut than it was in McQuillan and Adams.
[18] I note as well, that the end sentences in both McQuillan and Adams were arrived at after taking into account (albeit modest) guilty plea discounts. No such discount is of course available to Mr Walsh. On the other hand, I consider that Mr Walsh is entitled to some credit for his positive personal circumstances and the significant period of time since his previous relevant offending. It does not appear that any such credit was allowed by the learned District Court Judge.
[19] In the end I consider that a final sentence that reflects the totality of
Mr Walsh’s offending in this case would be 24 months imprisonment.
[20] I consider that substituted cumulative sentences of nine months imprisonment on the DWS charge and of 15 months imprisonment on the EBA charge adequately reflect the seriousness of Mr Walsh’s offending in both respects and that no s 85(3) question arises.
[21] I allow the appeal accordingly.
Rebecca Ellis J
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