Walters v Police HC Napier CRI 2007-441-000010
[2007] NZHC 1825
•11 June 2007
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
CRI 2007-441-000010
CRI 2007-441-000011
CRI 2007-441-000012
MICHAEL WALTERS
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 23 May 2007
Appearances: S Jefferson for the appellant
R Collins for the respondent
Judgment: 11 June 2007
JUDGMENT OF STEVENS J
This judgment was delivered by me on Monday, 11 June 2007 at 2pm pursuant to r 540(4) of the High Court Rules.
Registrar/Deputy Registrar
Solicitors/Counsel:
S Jefferson, PO Box 143, Napier
Crown Solicitor, PO Box 609, Napier
WALTERS V NZ POLICE HC NAP CRI 2007-441-000010 11 June 2007
Introduction
[1] The appellant pleaded guilty on 31 January 2007 to two charges of driving with excess breath alcohol, two charges of driving while disqualified, two charges of giving false details and one of being unlawfully on property. Apart from the latter charge which occurred in October 2006, the charges relate to two similar but separate incidents. The second incident occurred two months after the appellant was bailed for the previous excess breath alcohol/driving while disqualified incident.
[2] The appellant was sentenced by Judge R M Kean in the District Court at Napier on 9 March 2007 and received two cumulative sentences of 21 months’ imprisonment, meaning an effective sentence of three and a half years’ imprisonment for this offending. He was also disqualified from driving for five years.
Factual background
[3] On 30 August 2005, the appellant was convicted of driving with excess breath alcohol and driving while disqualified in the Auckland District Court. On this occasion, apart from a sentence of one year six months’ imprisonment, he was disqualified from driving indefinitely.
[4] The charge of being unlawfully on property related to an incident on
3 October 2006 in Napier when he peered through the window of a house. When approached he ran away from the property.
[5] The first excess breath alcohol/driving while disqualified incident occurred in Naenae on 2 November 2006. At about 4.20am, the appellant was driving a motor vehicle and when stopped by the Police he gave false details. A breath test showed a reading of 600 micrograms of alcohol per litre of breath. The legal limit is 400 micrograms of alcohol per litre of breath. Upon his arrest his fingerprints were taken and his true identity was established. The appellant was bailed to appear in Court on
12 January 2007, but failed to appear.
[6] The second excess breath alcohol/driving while disqualified incident occurred on 13 January 2007 at Napier. At about 4.05am the appellant was driving a motor vehicle and when stopped by the Police gave false details. A breath test showed a reading of 791 micrograms of alcohol per litre of breath.
The sentence
[7] Judge Kean sentenced the appellant to 21 months’ imprisonment for each of the excess breath alcohol and driving while disqualified charges. For each of the two sets of offending, the sentences were imposed concurrently, but between the sets of offending the sentences were imposed cumulatively. The appellant was convicted and discharged for the offences of providing false details and given a one month concurrent sentence for being unlawfully in an enclosed yard. He was disqualified from driving for five years. Accordingly, the overall sentence of imprisonment was three and a half years.
[8] The Judge’s sentencing notes succinctly record the seriousness of the offending and the appalling record of the appellant for offending of this nature. The Judge said at [4] and [5]:
These offences are quite serious on their own but your record of this sort of offending is quite extraordinary really. I did not get the same numbers as the Probation Officer mentions in the report. I think you have more convictions for drink driving than the officer indicated. On my calculation you have some 14 going back to 1990. For driving while disqualified I count about 25 previous convictions as those detailed in your total record which now runs to some 17 pages.
In amongst that you have breached conditions of release, you have breached parole, bail, periodic detention, supervision and so on. Your most recent drink driving and disqualified driving quinella was August 2005. And so that is a record I have described as extraordinary. It shows complete disregard for Court orders and for other road users. You are going to kill someone if you are allowed to carry on in this way and it is probably pure good luck, if not a miracle, that there have not been major incidents of innocent people being badly injured or killed by you.
[9] The Judge had to consider what length of prison term was appropriate in the circumstances of this case. He said at [6] and [7]:
…You have had many prison sentences. Obviously they have not had any effect on you because you continue to offend. You make that point, not directly, in the letter you have written to me. But the big point from a public safety point of view, which is sometimes overlooked by people, is that when you are in prison at least you cannot drive motor cars and put the public in danger. So the major purpose of the sentencing today, for me, is the protection of the public and to keep you in a position where you cannot offend for an appropriate period.
A question which has been posed before is, what can society do with a person who continues to drink and drive even though he has been disqualified on a large number of occasions? Does the Court have to wait until he causes serious harm to someone before imposing a substantial sentence? I am going to impose a substantial sentence but one that is, in my view, in line with authority and has regard to all the relevant factors.
Appellant’s submissions
[10] The ground of appeal is that the sentence imposed was manifestly excessive. Significantly Mr Jefferson, appearing for the appellant, conceded that cumulative terms of imprisonment were appropriate. But he submitted that this case was not correctly characterised as coming within the most serious cases of its kind. While the sentencing Judge did not say so, the implication from the starting point of two years (the maximum penalty available) is that this was considered to be one of the most serious cases of its kind.
[11] Mr Jefferson accepted that the appellant was a recidivist drink driver and was on bail when the offending occurred. But he submitted that he pleaded guilty immediately and expressed remorse and a willingness to address his addiction issues. The readings in terms of the breath alcohol offences were moderate and the offending was not accompanied by bad driving, driver error, loss or damage, which are aggravating factors that a Court may take into account. Mr Jefferson also submitted that the sentencing Judge did not give enough credit for the mitigating factors in this case. A three month allowance was made which, for the mitigating factors referred to, was insufficient. Mr Jefferson submitted that the sentence imposed breached the totality principle. To this end, he submitted that the sentence was outside the principles in s 85(2) of the Sentencing Act 2002.
[12] Finally, Mr Jefferson submitted that the disqualification for five years, which was imposed on top of a disqualification for an indeterminate period under s 65 of the Land Transport Act 1998 (the Act), was manifestly excessive. In effect, such a penalty in addition to the sentence of imprisonment removed from the appellant any hope of demonstrating to the authorities under s 100 of the Act that the disqualification should be removed.
Respondent’s submissions
[13] Mr Collins, for the New Zealand Police, the respondent, submitted that the sentence was not manifestly excessive. A number of factors were relevant, including that the appellant is a recidivist drink driver with 14 previous convictions for excess breath alcohol and 25 for driving while disqualified. The appellant was on bail for the November offending when the committed the second set of offending. He was convicted for excess breath alcohol and driving while disqualified only 15 months before the November offending.
[14] With respect to mitigating factors, a total credit of six months was given. This was generous, given that convictions on the breath alcohol and drink driving offences were inevitable. The guilty pleas were the only mitigating factor and a sentence of three and a half years’ imprisonment was within range. Indeed, it was submitted that it is in the middle of the band when examining comparable cases.
Comparable sentences
[15] Counsel for the respondent referred to four cases where comparable sentences were imposed. These are:
a) Dixon v Police HC CHCH CRI 2006-409-000244 19 March 2007, Panckhurst J. There a sentence of five and a half years’ imprisonment was reduced to four years for two separate drink driving offences and a further incident of driving while disqualified. False details had been provided and a gap between the first and second incidents was eight
days. The appellant was on bail at the time of the second incident and had a high breath alcohol reading of 1112 micrograms of alcohol per litre of breath. A period of disqualification of six years was reduced to a total of 30 months.
b)Mei v Police HC WHA AP6/04 6 May 2004, Nicholson J. An effective sentence of three years eight months imprisonment was upheld. The case involved one incident of driving with excess breath alcohol and driving whilst disqualified. The breath alcohol reading showed 618 micrograms of alcohol per litre of breath. The appellant had 14 previous convictions for drink driving and 13 for driving while disqualified. The Judge observed that a strong deterrent was the only way realistically to stop the appellant offending.
c) Morgan v Police HC WN AP206/00 7 November 2000, Doogue J.
An appeal against an effective sentence of three years three months was dismissed. There were two separate incidents in a month, with each incident involving excess breath alcohol and driving while disqualified. The appellant had 16 previous convictions for drink driving and 20 previous convictions for driving while disqualified.
d)Hughes v Police HC INV CRI 2003-425-000017 31 October 2003, Panckhurst J. A sentence of four years’ imprisonment was reduced on appeal to three years. The case involved one incident of excess breath alcohol and driving while disqualified. The breath test showed 562 micrograms of alcohol per litre of breath. The appellant had 14 previous convictions for drink driving and 19 convictions for driving while disqualified.
[16] With respect to the above comparable cases, Mr Collins submitted that in Dixon v Police, Panckhurst J doubted that substandard driving is a prerequisite for bringing an offence of driving whilst disqualified or with an excess breath alcohol/blood alcohol concentration to “near to the most serious” of its kind. At
least in the case of chronic recidivists, a significant number of previous convictions may be seen as sufficient to elevate an offence into that category.
[17] Mr Collins submitted that in Hughes v Police the Court recognised that s 8(c) and (d) of the Sentencing Act are intended to mandate maximum penalties or penalties near the maximum respectively, regardless of whether a crime is the worst or near the worst imaginable. The legislature has required the imposition of maximum, or near maximum, penalties where the offending is within the range of the most serious, or near to the most serious, types of offending. A search for the worst possible case is not necessary.
[18] Another relevant decision is that of the Court of Appeal in R v McQuillan CA129/04 12 August 2004, to which Mr Jefferson referred in his submissions. There, McQuillan pleaded guilty to two sets of charges of driving while disqualified and excess breath alcohol based on separate incidents 11 months apart. The readings were 750 micrograms of alcohol per litre of breath and 186 milligrams of alcohol per
100 millilitres of blood where the legal limit was 80 milligrams. The appellant had been sentenced to 12 months’ imprisonment on each set of offending, and the two sets were imposed cumulatively. The Judge declined to grant leave to apply for home detention. The appellant was disqualified from driving for three years.
[19] Although the appeal was allowed on a jurisdictional point, the substantive issues were considered in the case. The appellant had an extensive criminal history including dangerous driving causing death, eight convictions for driving while disqualified and five convictions for excess breath alcohol. The Court concluded at [20] that “imprisonment is clearly now the usual, if not necessarily the inevitable, consequence of such recidivist offending”. The Court added that “This reflects the policy of the Land Transport Act 1998”. This was on the basis that under s 58(3) of a person commits a third or subsequent driving offence involving excess breath or blood alcohol or failing or refusing to permit a blood specimen to be taken, the maximum term of imprisonment becomes one of two years rather than three months.
[20] The Court of Appeal held that the individual sentences of 12 months’ imprisonment imposed on the appellant for the two sets of offending were “not out of the ordinary”. The Court added at [22]:
Clotworthy [v Police (2003) 20 CRNZ 439] provides a table of sentences for similar offending in both the District and High Courts and a list of relevant sentencing factors. Both clearly provide valuable guidance in sentencing. It must, however, be remembered, as Wild J said, that sentencing is not an exact science and that the circumstances of offenders and offending, including of the present kind, are widely variable. Comparison with the sentencing outcomes analysed in Clotworthy, and its list of relevant factors, accordingly does not dispense with the need for the normal exercise of judgment by the sentencing Judge in deciding on the appropriate sentence in the circumstances of the case.
[21] The Clotworthy case referred to by the Court of Appeal was a decision of Wild J that examined a range of sentences on appeal to the High Court for excess breath alcohol, together with some District Court authorities. Wild J noted at [19] that:
…in providing accurate guidance, and in particular assessing whether a particular sentence is manifestly excessive i.e. outside the permissible sentencing range, High Court Judges need to be aware of sentencing levels being imposed generally in the District Court. …
[22] His Honour noted at [20] that there are various relevant factors in sentencing for excess breath alcohol cases as follows:
• The breath or blood alcohol level;
• The length of time elapsed since the last conviction;
• Conviction for two or more excess breath or blood alcohol offences in close succession;
• The manner of driving;
• Whether the offender was disqualified or forbidden at the time;
• The pleas and when they were entered;
• The sentences imposed for previous excess breath or blood alcohol offending;
• The offender’s record;
• Any genuine remorse and or willingness to confront alcohol or personal problems; and
• Any mitigating personal or family circumstances contributing to the offending.
[23] The final case to which reference is made is the decision of the Court of Appeal in R v Stoves CA264/06 7 November 2006. This was a case in which the appellant was convicted of two counts of excess breath alcohol, one of conversion of a motor vehicle and one summarily laid charge of driving while suspended. These offences were based on two incidents and the two readings were 1043 and 734 micrograms of alcohol per litre of breath. The appellant had four previous excess breath alcohol convictions and had been sentenced to 18 months’ imprisonment with leave to apply for home detention being declined.
[24] The Court referred to the factors in Clotworthy and analysed the facts relevant to each. At [10] the Court stated:
As this Court noted in McQuillan, sentencing is not an exact science, the circumstances of offenders and offending are widely variable, and a comparison with the sentencing outcomes analysed in Clotworthy, and its list of relevant factors, does not dispense with the need for the normal exercise of judgment by the sentencing judge. The sentence must not involve a mechanical increase in the length of sentence solely dependent upon the number of times a person has been convicted of this particular type of offence. It is not right, as a matter of principle, for a sentence close to the maximum to be available only when a certain number of offences has been committed.
Discussion
[25] It is first convenient to consider the circumstances here by addressing the factors referred to in the judgment of Wild J in Clotworthy.
a) Breath alcohol level.
At 600 and 791 micrograms of alcohol per litre of breath respectively they were one and a half times and then nearly double the legal limit.
b)Length of time since last conviction for excess breath or blood alcohol.
The previous convictions was on 30 August 2005, just over a year prior to the November incident. The appellant received a custodial sentence and was declined leave to apply for home detention.
c) Conviction for two or more excess breath or blood alcohol offences in close succession.
These offences were two months apart and the second occurred whilst the appellant was on bail for the first.
d) Manner of driving.
The appellant’s driving was such as to attract the attention of Police Officers on both occasions, but was not alleged to be otherwise dangerous.
e) Whether the offender was disqualified at the time.
The appellant was disqualified at the time of both offences. Such offending is serious in and of itself because it involves the flouting of a Court order. But here the offending was aggravated on each occasion by the fact that it also involved driving with excess breath alcohol.
f) The pleas, and when they were entered.
Guilty pleas were entered on all charges. But with respect to the excess breath alcohol and driving while disqualified charges, the respondent submits that the credit given by the Judge of six months was generous, notwithstanding that convictions were virtually inevitable.
g) Previous sentences and responses to those sentences for excess breath or blood alcohol offending.
The appellant has had sentences of fines, non-residential periodic detention, non-residential community programmes and terms of imprisonment of ever increasing lengths up to the one year, six months’ imprisonment imposed on 30 August 2005. None of these
have prevented him from committing further excess breath alcohol offences.
h) Other offending.
The appellant has numerous convictions for a range of dishonesty and other offences. Particularly relevant are the 14 previous convictions for drink driving and 25 previous convictions for driving whilst disqualified. The most recent offending occurred at a time when the appellant had been disqualified indefinitely as of 30 August 2005.
i) Remorse or willingness to confront alcohol problems.
There was some indication of remorse and a wish expressed to the District Court Judge that the appellant wanted to do a programme in prison to address his alcohol and possibly other abuse. The Judge gave little credit for these factors as his record indicated that he would be likely to offend again in the future: see [8].
j) Mitigating personal or family circumstances.
There are no relevant factors here.
Sentence of imprisonment
[26] The Court of Appeal acknowledged in McQuillan that sentencing is not an exact science and that the circumstances of offenders and offending will vary widely. There is always a need for the sentencing Judge to exercise normal judgment in the light of the various factors applicable to the case at hand. Here, the respondent acknowledged that the sentence imposed by the Judge was “stern” but submitted it was not manifestly excessive. The respondent submitted that the Judge took into account all relevant factors, including those outlined in Clotworthy and made a reference to the case of Hughes cited earlier.
[27] Mr Collins said that, had each sets of offending had been further subdivided into the excess breath alcohol and driving while disqualified, then the sentencing Judge would have had an even greater maximum available to apply.
[28] I recognise that the Court in imposing sentence must not, as the Court of Appeal warned in Stoves, apply a mechanical increase in the length of the sentence based merely upon the number of times a person has been convicted of a particular type of offence. But here the various factors identified above indicate that this offending was near to the most serious of its kind. It involved further flouting of a Court order of disqualification for the 26th and 27th time. Similarly, in respect of the
breath alcohol offending these were the 15th and 16th offences by the appellant. As
noted in Dixon, substandard driving is not a prerequisite in terms of the analysis of the seriousness of the offending.
[29] In the light of the cases cited by Mr Collins and referred to in [14] above, and bearing in mind the particular circumstances of this case, I do not consider that the appellant has shown that the sentence was manifestly excessive. I agree with Mr Collins that the sentence was “stern” and probably close to the upper end of the permissible range. But at the end of the day, I am not satisfied that the imprisonment aspect of the sentence was manifestly excessive.
Disqualification
[30] As noted above, there was a second aspect to the sentence on the excess breath alcohol and driving while disqualified charges that must be addressed. This is the decision to disqualify the appellant from holding or obtaining a motor driver’s licence for a period of five years.
[31] In addressing this point the Judge said at [16]:
As far as your licence is concerned, I note your comments about that in your letter but you are in the position where again, in the interests of safety of the community, you need to be off the road for a long time once you get out of prison. You are currently indefinitely disqualified of course, and the sentence I am going to impose as far as disqualification is concerned, is lengthy. If you do do programs and you can prove to the appropriate authorities that you are safe to be allowed back on the road then there is a possibility of getting your licence back earlier but you have a huge amount of work to do in that regard.
[32] It was in the light of these factors that the five year disqualification was imposed from 18 October 2007, which the Judge understood to be the end date of the sentence.
[33] In oral argument, I raised with Mr Collins whether such a period of disqualification was appropriate, bearing in mind that, at the time the appellant was already disqualified indefinitely. Mr Collins acknowledged that the effect of the five year disqualification was that the appellant would have no hope of even beginning the process through the appropriate authorities to achieve a possible removal of the disqualification until the expiry of the five year disqualification period. That could leave the appellant in a position of having little, if any, hope of being able to drive again for a very long period.
[34] In this context, it is pertinent to refer to two of the purposes and principles of sentencing in the Sentencing Act 2002. The first is the purpose to assist in the offenders rehabilitation and reintegration: see s 7(1)(h). The second is that a Court in sentencing must impose the least restrictive outcome that is appropriate in all the circumstances: see s 8(g).
[35] Imposing a further period of disqualification does not necessarily cut across the discretion of the Director of Land Transport to remove the indefinite disqualification under s 100 of the Act, because that section no longer requires that the applicant for removal be disqualification-free, as it did up until 16 January 2006. However, I have concluded that the period of disqualification imposed was manifestly excessive. While I recognise that the maximum disqualification that the Court may impose has, since January 2006, been increased from the previous cap of one years’ disqualification, there is no indication that such a penalty would be appropriate, particularly where the scheme intends to encourage people not to drive drunk or while disqualified by giving them hope of being able to regain a licence at some stage in the future.
[36] In Dixon, Panckhurst J noted at [42] that lengthy periods of disqualification frequently prove so daunting for offenders that they offend again. Further, he said at [44] that any period of disqualification imposed on top of an indefinite
disqualification really only serves to delay the application for removal of the indefinite disqualification order. On that basis, he considered that a six year disqualification for a recidivist offender was manifestly excessive. Likewise, I consider that a period of disqualification of five years is manifestly excessive and find that two years’ disqualification commencing when the appellant is released on parole should be the appropriate sentence in the present case.
Result
[37] Accordingly, the appeal is allowed, but only to the extent that the period of disqualification of five years imposed in the District Court is quashed. In its place, the appellant is disqualified from driving for a period of two years. The cumulative
sentences of 21 months’ imprisonment are each upheld.
Stevens J
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