Ward v The Queen
[2011] NZCA 44
•4 March 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA603/2010 [2011] NZCA 44 |
| BETWEEN JASON BLAIR WARD |
| AND THE QUEEN |
| Hearing: 23 February 2011 |
| Court: Arnold, Gendall and Allan JJ |
| Counsel: R Ord for Appellant |
| Judgment: 4 March 2011 at 11 am |
JUDGMENT OF THE COURT
A The appeal against sentence is allowed, but only to the extent that the order remitting the appellant’s fines and enforcement fees totalling $26,618 and substituting two months imprisonment is quashed. The appellant’s fines and enforcement fees are reinstated.
BIn all other respects the appellant’s sentence stands.
REASONS OF THE COURT
(Given by Arnold J)
Introduction
On 19 August 2010 Judge Zohrab sentenced the appellant, Mr Ward, to two years and nine months imprisonment for a range of offending. The Judge also remitted fines and enforcement fees totalling $26,618 and imposed an additional two months imprisonment in recognition of that. Finally, the appellant was disqualified from driving for a period.[1]
[1] R v Ward DC Nelson CRI-2009-042-4913, 19 August 2010.
The offending at issue occurred on four dates:
(a)8 July 2009: Wilfully damaging a breath alcohol testing device and refusing to give a blood specimen;
(b)30 September 2009: Two charges of wilfully damaging police property (a suicide blanket and a breath alcohol testing device), one charge of driving with an excess blood alcohol level (having committed two or more previous offences) and one charge of sustained loss of traction;
(c)26 April 2010: Failing to answer to bail;
(d)15 June 2010: Two charges of threatening to injure, one charge of possession of an offensive weapon (a knife) and another of threatening to damage a person’s property with intent to frighten them.
The offences following those committed on 8 July 2009 were committed while Mr Ward was on bail, one of the conditions of which was that he not drive a vehicle.
The appellant appeals against the sentence of two years nine months imprisonment. He does not dispute that cumulative sentencing was appropriate but argues that the overall sentence was excessive because it failed to take into account the fact that no serious harm was caused by the offending. The appellant says that any risk of harm flowing from his conduct could have been met by the imposition of a sentence of home detention in a rehabilitation centre.
The Crown accepts that the appeal must succeed to the extent that the Judge imposed a further two months imprisonment to reflect the remission of the fees and fines. This is because it appears that the Judge did not follow the required procedure for remission[2] and, in any event, this Court has held that a sentencing judge may not remit fines for unrelated offending.[3] Accordingly, the fines must be reinstated and the sentence of two months imprisonment imposed in substitution must be quashed.
Background
[2]See Summary Proceedings Act 1957, s 88(3)(h), Crimes Act 1961, s 19D and R v Brown [2009] NZCA 288 at [28]–[29].
[3] R v Gebbie CA452/04, 2 March 2005 at [7].
We will deal with the offending by date.
8 July 2009
Shortly after 9 pm the appellant was observed driving badly. He failed the roadside breath alcohol procedure but it was not possible to conduct an evidential breath test at the local police station because the appellant damaged the testing device by deliberately spitting into it. He then refused to provide a blood sample for analysis. The appellant was charged with refusing a request for a blood sample (third or subsequent offence) and intentional damage. He pleaded not guilty to the charges and was remanded on bail, on condition that he not drive a motor vehicle.
30 September 2009
Around 11 pm the appellant was again observed driving badly. He approached a corner at speed and did a “burn out”. This caused his vehicle to drift around the corner, with its rear wheels spinning heavily. He was taken to a police station but again prevented an evidential breath test from being taken by spitting into the testing device. A blood sample was taken, however. This revealed that his blood alcohol level was 127 milligrams of alcohol per 100 millilitres of blood, the limit being 80 milligrams. While in the police cells he defecated onto his hand and spread the waste around the cell and onto a surveillance camera. He also tore a police blanket into strips.
The appellant was charged with operating a motor vehicle causing a sustained loss of traction, three charges of intentional damage and one of driving with excess blood alcohol (third or subsequent offence). He pleaded not guilty and elected trial by jury on the charges of driving with excess blood alcohol and wilful damage.
26 April 2010
On 3 March 2010, the appellant was tried and convicted on the charges arising from the 8 July 2009 incident. He was remanded on bail for sentencing on 26 April 2010. He failed to appear on that date however, and this led to the charge of failing to answer bail.
15 June 2010
At about 10.30 am the appellant was involved in an incident at his partner’s house in which, having picked up and sharpened a steak knife, he threatened to burn the house down and stab his partner and her son. This resulted in two charges of threatening behaviour, one of unlawful intimidation and one of possession of an offensive weapon.
The appellant pleaded guilty to all outstanding matters on 5 July 2010 and was sentenced on 19 August 2010.
Sentencing
In sentencing the appellant, Judge Zohrab noted that the appellant had six convictions for driving with excess blood alcohol prior to the two convictions for which he was to be sentenced. In addition, he had a bad history of breaching community sentences such as periodic detention and community work.
In relation to the 8 July 2009 offending, the Judge took into account the judgment in Clotworthy v Police.[4] There Wild J provided a helpful summary of sentences imposed in respect of offending involving repeat drink driving and driving while disqualified. Judge Zohrab took 12 months imprisonment as the appropriate starting point for that offending. The Judge also ordered the appellant to pay $6,800 by way of reparation.
[4] Clotworthy v Police (2003) 20 CRNZ 439 (HC).
In relation to the 30 September 2009 offending, Judge Zohrab adopted a starting point of 18 months imprisonment, taking into account the range of offending involved and the aggravating features (such as the fact that the appellant was on bail when the offences were committed). From this he deducted three months to reflect the appellant’s guilty pleas, which produced an end sentence of 15 months. This was to be served cumulatively with the 12 month sentence.
Finally, in relation to the 15 June 2010 offending, Judge Zohrab considered that nine months would be appropriate, subject to a deduction of three months to reflect an early guilty plea. This was also cumulative, which produced a total sentence of 33 months, or two years nine months. The Judge considered that a sentence of one month’s imprisonment, to be served concurrently, was sufficient for the failure to answer bail charge.
The Judge considered the overall sentence of two years nine months imprisonment against the totality of the offending and concluded that it was appropriate.
Analysis
As we have said, Mr Ord for the appellant did not dispute that cumulative sentences were appropriate. Rather, he submitted that the sentence of two years nine months imprisonment was too long as a result of an error of principle, and argued that the appellant should have been given a term that would have permitted “back end” home detention in order to enable him to address the causes of his offending.
We reject these submissions. Dealing first with the home detention argument, as Mrs Brook for the Crown pointed out, “back end” home detention no longer exists, following the introduction of home detention as a standalone sentence.[5] We do not consider that there was any basis on which the Judge could properly have imposed a sentence of home detention in this case given the nature of the offending and the appellant’s poor record of compliance with community-based sentences. Mr Ord submitted that the appellant was no more than a “pest”. We consider that his offending goes well beyond that, however. The appellant seems to have no ability to control his drinking, his drink/drive record is appalling, as is his disregard of bail conditions and such like, and the assault on his partner and her son is most concerning. In this context we note that the Judge did observe for the benefit of the Parole Board that the appellant had expressed a desire and willingness to seek residential treatment.
[5] Sentencing Act 2002, s 80A.
As to the argument that the term was excessive, we consider that it was within the range available to the Judge. Mr Ord submitted that the appellant had done no serious harm and that the Judge may have overlooked (because he did not mention it) an Alcohol and Drug Use Assessment carried out on the appellant. However:
(a)The appellant is a recidivist drink driver. As such he poses a significant threat to other road users when he offends, whether or not he actually causes injury on any particular occasion.
(b)The clinician who carried out the assessment considered that the appellant might benefit from referral to an intensive residential programme such as the Odyssey programme, to which the appellant had requested a referral. However, she also noted that there was not then a place available in the programme and that, as a referral had been made, it could “continue to be worked on alongside whatever other sentence [the appellant] gets, whether it is custodial or in the community”. The Judge’s approach was consistent with this.
In the result, we consider that the sentences imposed for the individual sets of offending were well justified and the end sentence appropriately reflects the totality of the offending.
Decision
The appeal is allowed, but only to the extent that the order remitting the appellant’s fines and enforcement fees and substituting two months imprisonment is quashed. The outstanding fines and enforcement fees are accordingly reinstated. In all other respects the appellant’s sentence stands.
Solicitors:
Rob Ord, Nelson for Appellant
Crown Law Office, Wellington for Respondent
5
0
0