Watson v Police
[2015] NZHC 2652
•28 October 2015
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2015-409-72 [2015] NZHC 2652
BETWEEN DWAYNE NEIL WATSON
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 22 September 2015 Appearances:
R Ward for the Appellant
KB Bell for the RespondentJudgment:
28 October 2015
JUDGMENT OF DAVIDSON J
The appeal
[1] Mr Dwayne Watson appeals his sentence of imprisonment of two years, five months and fourteen days. He was sentenced by His Honour Judge Couch in the
Christchurch District Court on the following charges:1
(i) driving with excess breath alcohol charges); (third or subsequent) (two (ii) (iii)
(iv)
dangerous driving;
failing to stop for Police;
driving while suspended; and
(v)
breach of police bail.
1 Police v Watson, [2015] NZDC 12368.
WATSON v NEW ZEALAND POLICE [2015] NZHC 2652 [28 October 2015]
[2] The appeal is advanced on several bases:
(i)that the starting points for the offences of driving whilst intoxicated were too high;
(ii) that the Judge failed to properly apply the totality principle;
(iii) that the personal mitigating features were not adequately recognised; (iv) that the court erred in failing to consider the availability of home
detention as the least restrictive outcome available.
Disposal of fourth ground of appeal
[3] It is apparent on the face of the record that the appeal against the failure to consider the availability of home detention is misconceived. Home detention is only available where the offender would otherwise be sentenced to a short term sentence of imprisonment (24 months or less). On the Judge’s analysis this essential gateway had not been passed. It was not jurisdictionally open to His Honour to consider home detention. The Court must not contrive a sentence to render home detention available.
[4] Should I find an error in the sentence on appeal, and decide a different sentence should be imposed, which is 24 months or less, then this Court must consider whether home detention would be the least restrictive sentence that would still meet the purposes and principles of sentencing.
Facts
[5] On 8 November 2014, Police stopped Mr Watson when he was driving on Waterloo Road, Christchurch. He returned a positive evidential breath test, then underwent a blood test. The result was 217 mg of alcohol per 100 ml of blood. The legal limit was then 80 mg of alcohol per 100 ml of blood so Mr Watson was about
2.7 times the legal limit, on the first charge of driving with excess blood alcohol
(third or subsequent). This was Mr Watson’s fifth such charge.
[6] At 11.15pm of Monday, 17 November 2014 Mr Watson was driving his vehicle and a large trailer on Colombo Street, Christchurch. The Police saw Mr Watson driving slowly and drifting over the centre line. The officer activated his red and blue lights to indicate that Mr Watson should pull over and stop. He attempted to evade Police by driving through the surrounding streets for about five minutes. These events give rise to the charge of failing to stop for the Police.
[7] During the pursuit, Mr Watson drove over a large judder bar at about 50 kph, causing both trailer wheels and the car wheels to leave the road by approximately one metre. Mr Watson increased his speed to approximately 100 kph, still towing the trailer. Police patrols followed Mr Watson when he drove at around 80 kph on the incorrect side of the road. On two occasions Mr Watson had to swerve at the last minute to narrowly avoid a collision with cars parked on the left hand side of the road. He was stopped only when he turned into a cul-de-sac. These events give rise to the charge of driving in a dangerous manner.
[8] Apprehended by Police after the above driving, an evidential breath test showed 1216 mcg of alcohol per litre of breath. The legal limit at the time was
400 mcg of alcohol per litre of breath. He was therefore over three times the legal limit. These events give rise to the second charge of driving with excess breath alcohol (third or subsequent). This is Mr Watson’s sixth such charge including that arising on 8th November.
[9] Mr Watson was granted Police bail to appear before the District Court on
20 November. He failed to appear. A warrant was duly issued. These events give rise to the charge of breaching Police bail.
[10] For his offending on 17 November, Mr Watson’s licence was suspended for
28 days beginning at 12.30am on 18 November. On 25 November, Mr Watson was driving a Toyota motor vehicle on Symes Road, Christchurch. This gave rise to the charge of driving whilst suspended.
[11] An application to review a sentence of community work also came before His Honour Judge Couch. On a handwritten note attached to that application, Judge Couch has recorded as follows:
30/6/15 – dismissed – overtaken by sentence of imprisonment imposed today and effect of s 78(7) of Sentencing Act.
[12] On 19 December 2011 Mr Watson was sentenced to 200 hours community work in relation to two charges of driving with excess breath alcohol (third or subsequent), one charge of wilful trespass, and one charge of escaping from custody. As at 25 June 2015, Mr Watson had completed only 67 of those hours and had not reported since 17 January 2013.
[13] Judge Couch did not refer to the application to review in his sentencing notes other than the handwritten note on the Minute.
District Court sentence
[14] Judge Couch took the two charges of driving with excess blood and breath alcohol (third or subsequent) as the lead offences. For the first blood alcohol offence (committed on 8 November 2014) the Judge set the starting point at 15 months imprisonment. That was reduced by three months for the appellant’s guilty plea. This resulted in an end sentence of 12 months imprisonment on this charge.
[15] On the second breath alcohol charge (committed on 17 November 2014) the Judge set the starting point at 17 months’ imprisonment. Since the dangerous driving and failing to stop for the Police offences were connected with the second blood alcohol charge, the Judge regarded them as aggravating factors and imposed an uplift of three months. He discounted this by four months for the appellant’s guilty plea. The end sentence on that charge was therefore 16 months imprisonment.
[16] The Judge imposed a sentence of one month and 14 days imprisonment for the offence of driving while suspended on 25 November 2014. He described that conduct as “the most blatant offending possible”.2
[17] The Judge then, correctly, stepped back to assess the totality of the offending. His Honour relevantly remarked:3
As I said in earlier discussion with Mr Ward this is one of the most serious sequences of driving offending that I have seen in many years. It was deliberate, it was blatant and it was very serious. On these occasions you were totally drunk and a serious danger to all other road users. Put in the context of your previous offending it means that your conduct was towards the very top of the scale. I do regard that overall sentence is appropriate for the totality of offending.
[18] The sentences were imposed cumulatively.
Material before the District Court
Criminal and Traffic History
[19] Mr Watson’s criminal record is notable for two reasons. First, it emphasises his non compliance with sentence and bail. Secondly, it emphasises the extreme seriousness of his drink driving.
[20] As to the first point, since 2010 (not including the current offending) Mr Watson has failed to answer District Court bail once, escaped lawful custody once and breached his community work once. Mr Watson was not compliant with Court orders.
[21] As to the second point, Mr Watson’s drink driving career began in 2007 when he was caught with a breath alcohol level of 1107 mcg per litre of breath, nearly three times the legal limit. In 2008, he was apprehended with a blood alcohol level of 96 mg per 100 ml of blood. This was marginally over the legal limit. But in 2010 he was apprehended twice. On the first occasion his breath alcohol level was 1292 mcg, and on the second it was 933 mcg, the first three times the legal limit and the second over two times the limit. Only one of these four occasions can be categorised as at a low or moderate alcohol level.
Pre-sentence report
[22] The pre-sentence report recommended imprisonment. It surprisingly identified Mr Watson as of low risk of further offending, while recognising the medium risk of his harming others should he reoffend.
Appeal jurisdiction
[23] Mr Watson is entitled to appeal his sentence as a matter of right. This Court will only interfere if it is established both that there is an error and that a different sentence should be imposed. The role of this Court is not to impose its view of what the sentence ought to have been if it were undertaking the sentencing exercise. The sole concern is whether the sentence ultimately reached was available to the sentencing Judge.
Resolution of the appeal
The aggravated drink-driving
[24] The leading authority for cases involving recidivist drink drivers is Clotworthy v Police.4 Wild J propounded a list of factors which bear on the gravity of the offending. They are:5
[a] The breath or blood alcohol level.
[b] The length of time that had elapsed since the last drink driving conviction (in this respect the five year period referred to in s 65(2)(b) of the Land Transport Act 1998 is perhaps of significance).
[c] Conviction for two or more drink driving offences in close succession.
[d] The manner of driving: innocuous or dangerous; accident and injury resulting or neither? Sometimes this manifests itself in an additional charge(s).
[e] Whether the offender was disqualified or forbidden from driving at the time (as to the latter, note the mandatory 28 day suspension period referred to in s 95 Land Transport Act 1998).
4 Clotworthy v Police (2003) 20 CRNZ 439 (HC).
[f] The plea(s) and, if guilty, whether that plea was entered at any early stage or only belatedly.
[g] The sentences (in particular whether they included imprisonment) imposed for previous EBA convictions and the response (or lack of it) to those sentences.
[h] The offender's record, if any, of convictions for other types of offending.
[i] Any genuine remorse shown and/or willingness on the part of the offender to confront his/her contributing alcohol and/or personal problems.
[j] Any mitigating personal or family circumstances contributing to the offending.
[25] In Samson v Police, Whata J regarded [a]-[e] as aggravating features which aid in setting the starting point, [g] and [h] as aggravating features of the offender’s circumstances, while [f], [i] and [j] are mitigating features.6 Whata J then made the following generalisations (they are no more than that) about starting points for offending of this kind:7
I have reviewed a number of authorities for the purpose of identifying where the current offending might sit in the spectrum of cases that have come before this Court. As a result, I think some broad generalisations about starting points are supportable, namely:
(a) No seriously or only moderately aggravating factors, 9-12 months; (b) One or more seriously aggravating factors, 12-18 months;
(c) Multiple offences with seriously aggravating factors, 18-20 months;
and
(d) Multiple offences and very serious aggravating factors
(i.e. offending of the worst kind), 20-24 months.
[26] Counsel for Mr Watson and the Crown point to various sentences, some with a lower starting point, some with a similar starting point. The ability to point to discrete cases where a person was sentenced more or less harshly is not dispositive of the appeal.
[27] A broad sentencing range is available for offending of this kind and the appeal will succeed only if the sentence can be shown to be outside of that range.
First EBA charge
[28] In Blackler v Police, Dunningham J upheld a sentence of 13 months imprisonment in relation to Mr Blackler’s ninth drink driving offence.8 His breath alcohol level was 673 mcg per litre of breath. Like Mr Watson, the offending occurred while he was serving a sentence of community work and there had been a substantial gap since the last drink driving offence in 2008. The starting point adopted by the District Court Judge was one of 16 months’ imprisonment before
discounts were applied.
[29] Given the very high blood alcohol level involved in this offending I am satisfied that the starting point of 15 months, and the end sentence of 12 months imprisonment was available to Judge Couch. This conclusion is reinforced by Dunningham J’s judgment, which reflects their effect. In reaching the view the starting point was within range, I have been cognisant of cases at the lighter end of the spectrum cited to me by counsel for Mr Watson.9
[30] I do not consider any further adjustment is warranted for personal mitigating features such as remorse or rehabilitative effort.
Second EBA charge and other offending
[31] It is difficult to overstate the seriousness of this cluster of offences. The lead offence is the drink-driving charge. The other offending aggravates this. I consider the aggravating features to be these:
(i) the very high level of 1216 mcg of alcohol per litre of breath;
(ii)the very close proximity of this offence to the earlier offence (which occurred nine days earlier);
8 Blackler v Police [2015] NZDC 2372.
9 Fonoti v Police [2015] NZHC 200; Wilson v Police [2015] NZHC 1263; Mokotupu v Police HC Christchurch CRI-2009-409-19, 19 February 2009.
(iii)Mr Watson’s previous history of drink driving, though almost five years ago, involved very high levels of alcohol on three out of four occasions;
(iv)the driving involved was dangerous to others. It involved speed and dangerous manoeuvres (driving on the wrong side of the road and driving over speed bumps excessively fast); and
(v) Mr Watson deliberately failed to stop for Police.
[32] There is a strong inference that Mr Watson was suspended from driving when committing this second offence, as a result of the first EBA offence. This suspension is mandatory by operation of s 95 of the Land Transport Act 1998. There is no reference to this suspension in the summary of facts so I will not treat it as further aggravation. Similarly, I will not treat the fact that Mr Watson was subject to a sentence of community work at the time as aggravation.
[33] A case similar to this is Stringfellow v Police.10 Mr Stringfellow was charged with his sixth and seventh offence of driving whilst intoxicated, failing to stop and failing to remain stopped. The first set of offending involved Police noticing Mr Stringfellow performing a U-Turn and failing to give way. When stopped he exhibited signs of alcohol consumption. At the completion of breath screening procedures, he was asked to turn off his vehicle. Mr Stringfellow declined and took off at speed. He was pursued for 500 metres before being apprehended. When detained his breath alcohol level was found to be 917 mcg.
[34] Six days later, Mr Stringfellow was found driving a motor vehicle, stopped and processed. His breath level on that occasion was 719 mcg. At this time he was a suspended driver. On all the offending, an end sentence of 25 months imprisonment was not disturbed on appeal. I view the current offending as more serious than that in Stringfellow given the seriously aggravating features which I have mentioned
above.
10 Stringfellow v Police [2015] NZHC 2538.
[35] Looking at this offending in the round, I am satisfied that a total starting point of 20 months’ imprisonment was available to Judge Couch. The authorities cited to me by counsel for Mr Watson tend to support this view.11 A 20 month starting point is justified given the seriously aggravating features identified, absent from most of the cited cases.12
[36] Any claim to discount for rehabilitative prospects or remorse had, in my view, dissipated entirely by this point (to the extent it ever existed). Having been apprehended for drink driving with a very high level of alcohol just a few days earlier, Mr Watson took no heed of the jeopardy in which he found himself or the danger he had imposed to others. Indeed, he ‘doubled down’ and decided once more to place the public in danger, this time even more intoxicated than the first. No umbrage was taken with the guilty plea discount and I do not consider any further discounts to be justified for this offending.
Breaching Police bail
[37] On this charge, Mr Watson was convicted and discharged. This aspect of the sentence is not in contest on appeal.
Driving whilst suspended
[38] No specific submission was directed towards the sentence of one month,
14 days imprisonment imposed in relation to this charge. As it was imposed cumulatively, I discuss the propriety of this further sentence under the totality principle.
Cancellation of community work
[39] I have some misgivings about the approach adopted by His Honour to the application to cancel the sentence of community work. The combined effect of ss 78(7) and 80(5) of the Sentencing Act 2002 is such that the sentence of
community work will ultimately be cancelled. There was a live application for
11 See for example Sands v Police [2012] NZHC 3011; Himiona v Police [2012] NZHC 1756;
McGee v Police HC Whangarei CRI-2010-488-47, 8 December 2010.
12 See for example Collins v Police HC Hamilton AP100/02; Hakiwai v Police [2012] NZHC
2625; R v McQuillan CA129/04, 12 August 2004.
re-sentence before the District Court and I consider the correct approach is to re-sentence on those charges. Mr Watson had not complied with sentence for some time, and evinced no intent to do so, notwithstanding encouragement to comply.
[40] The charges leading to the sentence of community work were identified in the notice of appeal and are legitimately within this Court’s jurisdiction. This offending was serious in its own right. The offending comprised:
(i)one charge of driving with excess breath alcohol (third or subsequent), with the level being 1292 mcg of alcohol per litre of breath on
5 March 2010 (CRN 1009000333);
(ii)one charge of driving with excess breath alcohol (third or subsequent), with the level being 933 mcg of alcohol per litre of breath (third or subsequent) on 17 July 2010 (CRN 10090006212);
(iii) wilful trespass on 12 September 2010 (CRN 10090008226); and
(iv) escaping the custody of a constable on 12 September 2010 (CRN
1009008225).
[41] Mr Watson had served 67 of 200 hours community work, or around a third of that sentence. This separate spate of offending would have warranted an uplift in the sentence for further offending. I propose to sentence Mr Watson to concurrent terms of imprisonment on these charges. On the two EBA charges I impose a sentence of five months’ imprisonment. On the remaining two charges I impose a sentence of one month imprisonment for each. All sentences are to be concurrent with the other sentences imposed by Judge Couch in relation to the offending the subject of this appeal.
Totality
[42] In any sentencing or appeal of this kind, the final task for the Court is to step back from the separate offending and consider whether the total sentence reflects the gravity of the offending in its entirety. I am satisfied that the end sentence imposed
was one well available to Judge Couch to meet the purposes and principles of sentencing. His Honour was entitled to focus on the principles of deterrence and denunciation. No adjustment was necessary on the basis the end sentence was totally out of proportion to the gravity of the offending. This was viewed, overall, defiant, grave, and repeated offending.
[43] This conclusion is underscored by the recent judgment of Mander J in Dougherty v Police.13 His Honour dismissed an appeal against a sentence of two years, five months and 28 days’ imprisonment imposed in relation to two charges of driving whilst disqualified (third or subsequent), careless operation of a motor vehicle causing injury, excess breath alcohol, and breaches of bail and community work. I consider the scale of offending in that case, and in this case to be at least comparable, even allowing for there being no accident in this case.
[44] Mr Ward, counsel for Mr Watson, hangs his hat on Himiona v Police.14 Mr Himiona was charged with one offence each of excess breath alcohol (third or subsequent (1520 mcg)) and driving while disqualified. The end sentence was two years’ imprisonment. Mr Ward submits that because the offending in Himiona was more serious than in this case, this establishes the end imposed on Mr Watson was manifestly excessive. I consider that submission to rest on shaky foundations. My assessment of the current offending is that it is more serious than that involved in Himiona.
[45] The different approach I have taken to the community work reinforces that this sentence was within the available range, although I have decided to wrap it up within the entire parcel of offending presented to this Court. Finally, for clarity I observe that I consider it entirely appropriate that sentence on the driving whilst suspended charge was imposed cumulatively.
[46] The sentence imposed upon Mr Watson was stern, but such is within the range available to sentencing judges. I have not been taken to a point where I am
13 Dougherty v Police [2015] NZHC 1777.
14 Himiona v Police [2012] NZHC 1756.
satisfied that the sentence was outside that broad range available and I decline to interfere with the overall sentence imposed.
Home detention
[47] The sentence has not been brought within the range where home detention is able to be considered as a sentencing option.
Outcome
[48] The appeal is dismissed.
………………………………..
Davidson J
Solicitors:
R Ward (Rangiora) for the Appellant
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