Welsh v Police
[2022] NZHC 132
•9 February 2022
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE
CRI-2021-454-33
[2022] NZHC 132
CAMERON ANDREW WELSH v
NEW ZEALAND POLICE
Hearing: 9 February 2022 Counsel:
P Murray for Appellant
E Pairman for Respondent
Judgment:
9 February 2022
JUDGMENT OF CHURCHMAN J
Introduction
[1] On 28 October 2021, Cameron Andrew Welsh (the appellant) was sentenced by Judge Broughton in the Palmerston North District Court to 16 months’ imprisonment on three charges.1 These charges were:
(a)driving with breath containing excess of 400 micrograms of alcohol, third or subsequent;2
(b)driving while disqualified third or subsequent;3 and
1 Police v Welsh [2021] NZDC 21209.
2 Land Transport Act 1998, ss 56(1) and 56(4) – maximum penalty two years’ imprisonment, $6,000 fine.
3 Land Transport Act 1998, ss 32(1)(a) and 32(4) – maximum penalty two years’ imprisonment,
$6,000 fine.
WELSH v NEW ZEALAND POLICE [2022] NZHC 132 [9 February 2022]
(c)breaching without reasonable excuse conditions of release by consuming alcohol.4
[2] The sentence also included a 12-month disqualification from driving and the following special release conditions:
(a)to attend a psychological assessment;
(b)to complete any treatment and/or counselling as recommended by that assessment;
(c)not to consume or possess or use any non-prescribed drugs including alcohol;
(d)to attend appropriate alcohol counselling; and
(e)not to travel north of New Plymouth, Waiouru, Napier or any other area defined by a probation officer.
[3] Mr Welsh appeals on the grounds that the sentencing judge erred by failing to consider relevant factors, used incorrect methodology to arrive at the end sentence and imposed a manifestly excessive sentence. The grounds of appeal also assert that material facts were not placed before the District Court Judge.
[4]The Police oppose the appeal.
[5] I have concluded that other than in respect of the imposition of condition (e) set out in [2] above, the appeal should be dismissed. The starting point and end sentence were within an appropriate range, and the Judge did not make any material error in the sentencing process. I now set out my reasons.
4 Sentencing Act 2002, s 96(1) – maximum penalty one years’ imprisonment, $2,000 fine.
Background
Factual background
[6] To provide context for the appeal it is necessary to briefly detail the appellant’s most recent convictions. On 2 March 2021, the appellant was released from prison subject to conditions, following a conviction for injuring with intent to injure.
[7] On release the appellant was subject to a special condition for one year five months and four days not to consume or use any alcohol or drugs not prescribed to him. On 5 May 2021, he was charged with failing to stop for an enforcement officer and later convicted in the Palmerston North District Court. As a result, the appellant was disqualified from driving for three months on 25 May 2021.
[8] The offending in respect of which this appeal has been raised occurred when the appellant was seen drinking alcohol in the McDonald’s drive-through on Princess Street in Palmerston North. He was found by police in the carpark of McDonald’s and admitted having consumed a bottle of Scrumpy before having driven.
[9] An evidential breath test resulted in a reading of 757 micrograms of alcohol per litre of breath. This is a relatively high level. This is the appellant’s eighth conviction for driving with excess blood alcohol levels. As noted above, the appellant was disqualified from driving for three months on 25 May 2021. He was still disqualified at the time of the excess breath alcohol offence. He was also in breach of the special condition, having consumed alcohol.
PAC report
[10] The PAC report assessed Mr Welsh as having a high risk of further offending, given his 103 previous convictions. A number of these convictions relate to breaches of community sentences, excess breath alcohol, and driving while disqualified. It stated, “He is considered unlikely to comply with further community-based sentences and is very resistant to further electronic monitoring”.
[11] Mr Welsh is of New Zealand European/Pākehā descent. He has family scattered around Aotearoa New Zealand, including four children, none of which he
has substantive contact with. He is a qualified plumber, who is seeking to return to his trade. There is some implication in the PAC report that Mr Welsh needs rehabilitative treatment for alcoholism.
District Court decision
[12] The appellant has a considerable criminal history. As noted by Judge Broughton, “Most relevantly, there are 20 breaches of community-based sentences, 12 convictions for driving while disqualified and seven convictions for excess breath alcohol.”5 The Judge considered the appellant to represent a high risk of offending, and unlikely to comply with community based sentences or electronic monitoring. In part, that inference is drawn from a previous episode in which the appellant cut off an electronic monitoring bracelet.
[13] The Judge in her decision looked to the principles and purposes of the Sentencing Act 2002, specifically accountability, the gravity of the offending, the desirability for consistency, and the obligation to impose the least restrictive outcome in the circumstances. Community detention was not appropriate given the appellant’s propensity to reoffend and also because no address was available to the appellant despite a previous adjournment during which the appellant sought to identify suitable locations.
[14] The Judge considered a starting point of 18 months appropriate for the charge of driving while disqualified. The Judge treated this as the lead charge. The appellant was sentenced to nine months on the EBA charge, and one month for the breach of special conditions, served concurrently and cumulatively respectively with the disqualification charge. There was also an additional cumulative month and a half imprisonment for the remittance of fines. From this starting point Judge Broughton allocated a guilty plea discount of 25 per cent, due to its early nature, leaving an end sentence of 16 months’ imprisonment. The sentence also included the additional conditions noted at [2] above. The sentencing calculation was:
5 Police v Welsh, above n 1 at [7].
(18 + 1 + 1.5) x 0.75 = 15.3756
[15] Judge Broughton’s reasoning is criticised by counsel for the appellant. It is not clear that the Judge conducted the second step of the sentencing process as outlined in Moses. The Judge picked a starting point for the lead charge without referencing case law and added other aspects of the sentence to arrive at a total starting point of 20½ months. The final figure was then determined by awarding the full 25 per cent guilty plea, without reference to any further aggravating or mitigating factors personal to Mr Welsh. However, it is important to note that the driving disqualification and special release conditions have the effect of increasing the severity of the sentence in its totality.
Position of the parties
Appellant
[16] Mr Murray, counsel for the appellant submitted, with reference to case law, that the Judge imposed a starting point that was too high. He submitted that:
…starting points close to the maximum penalty are routinely imposed where the number of prior convictions for driving while disqualified are very high. This is common where there are 20 or more convictions.
[17] The current charge of driving while disqualified is Mr Welsh’s thirteenth charge. A third or subsequent conviction for driving while disqualified carries a maximum penalty of two years’ imprisonment or a $6,000 fine.7 Mr Murray submitted that imposing a starting point of 18 months when the maximum penalty was 24 months was out of proportion to the gravity of the offending so as to be manifestly excessive. He argued that given it had been nine years since Mr Welsh’s last driving while disqualified conviction, 18 months was a manifestly excessive starting point.
[18] Mr Murray also submitted that the fact that the appellant co-operated with police and admitted both his driving while disqualified and having consumed alcohol before driving went to the gravity of the offending. I do not accept that. Co-operation
6 This was rounded to 16 by the Judge although it is not clear how or why.
7 Land Transport Act 1998, ss 32(1)(a) and 32(4) – maximum penalty two years’ imprisonment,
$6,000 fine.
with the police including an early guilty plea are factors relevant to the offender rather than the offence. The appellant received a full 25 per cent discount for such factors.
[19] An aggravating feature of the offending is that not only did the appellant drive while disqualified, he drove while drunk.
[20] Mr Murray also submitted that the final sentence was arrived at by error in that the final sentence was 16 months, rather than exactly 15.375 months as indicated by the equation noted at [14] above. This meant that the sentence was two weeks longer than necessary. The contention was that although the Courts would not ordinarily tinker with sentences, in the context of a short-term sentence such a distinction was relatively greater than in the context of a longer one such as to be worthy of alteration.
[21] The appellant contended that there were certain factors and background material not included in the PAC report, that may have been relevant to a further discount that the Judge did not make allowance for. This was particularly with reference to issues of alcoholism and causation.
[22] He also submitted that the continuation of the release condition restricting Mr Welsh’s travel was extending an existing condition in relation to other earlier offending and should not have been carried over.
[23] Counsel noted that this condition had been imposed in an earlier sentencing on unrelated matters and would not expire until August of this year in any event. Neither counsel (both of whom had not appeared in the Court below) could explain how this condition came to be included in this sentencing decision.
Police
[24] Ms Pairman, counsel for the Police, submitted that a starting point of 18 months was within the range available and in line with relevant case law for the two driving charges. Her central contention is that an end sentence of 16 months’ imprisonment is not manifestly excessive in the circumstances. Mr Welsh’s offending
falls within an appropriate category of those described by Whata J in Samson v Police.8 Counsel relied on a number of cases to support her contention that the end sentence was within range.
Approach to appeal
[25] An appeal against sentence is an appeal against a discretion. Under s 250 of the Criminal Procedure Act 2011, the appeal court must allow the appeal if satisfied that:
(a)for any reason, there is an error in the sentence imposed on conviction; and
(b)a different sentence should be imposed.
[26]The Court must dismiss the appeal in any other case.
[27] Where the Appeal Court allows the appeal, the Appeal Court must pursuant to s 251:
(a)set aside the sentence and impose another sentence (whether more or less severe) that it considers appropriate or;
(b)vary the sentence, vary any part of the sentence, or vary any condition of the sentence; or
(c)remit the sentence to the Court that imposed it and direct that Court to take any action of a kind described in paragraph (a) or (b) as specified by the first Appeal Court.
[28] Section 250(2) was not intended to change the previous approach taken by the courts under the now repealed Summary Proceedings Act which applied where the sentence was “clearly excessive or inadequate or inappropriate”.9
8 Samson v Police [2015] NZHC 748.
9 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26] and [27].
[29] Despite s 250 making no express reference to “manifestly excessive”, this principle is “well-engrained” in the Court’s approach to sentence appeals. An appeal Court should not “tinker” with the end sentence if the end sentence is within range.10 The focus is on the end sentence and not the process adopted to reach that end sentence.
Relevant law
[30] In Moses the Court of Appeal introduced a general two-step approach to sentencing, in which any guilty plea discount is fixed at the second step.11 This two- step approach replaces the previous three-step methodology.12
[31] The first step in Moses requires the Court to calculate the starting point incorporating the aggravating and mitigating factors of the offence, considering consistency with similar offending. At the second step the starting point is then adjusted to incorporate the aggravating and mitigating factors personal to the offender, including any guilty plea discount, to reach the end sentence. The end sentence should reflect the totality of the offending and (barring other considerations) be the least restrictive outcome that is appropriate in the circumstances.
[32] The purposes for a which a Court may sentence an offender include (without limitation):13
(a)holding the offender accountable for harm done to the community;
(b)provide for the interests of the victim of the offence;
(c)denounce the conduct in which the offender was involved;
(d)deter the offender or other persons from committing the same or a similar offence; or
10 Ripia v R [2011] NZCA 101 at [15].
11 Moses v R [2020] NZCA 296.
12 See R v Taueki [2005] 3 NZLR 372 (CA), R v Hessell [2009] NZCA 450, [2010] 2 NZLR 298 and
Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
13 Sentencing Act 2002, s 7.
(e)to protect the community from the offender.
Analysis
Methodology
[33] In R v Fraser, the Court of Appeal upheld a sentence of 18 months’ imprisonment for a defendant in somewhat similar circumstances to Mr Welsh.14 Mr Fraser pleaded guilty to driving while disqualified, driving with excess breath alcohol, and other related offences while he was still subject to the conditions of a previous sentence. He had 17 previous convictions for driving while disqualified and 11 previous convictions for driving with excess blood or breath alcohol. The Court of Appeal could not impugn the Judge’s decision to impose a starting point of 20 months given the nature and circumstances of the offending.
[34] In Drinkwater v Police, the appellant was convicted on his eleventh offence of driving while disqualified.15 A sentence of 16 months’ imprisonment was upheld by the High Court on appeal, with Ronald Young J noting that the overall sentence for driving while disqualified would inevitably be greater where aggravating offences were present.16 In the present case, the aggravating features of the offending were the excess breath alcohol and breach of condition charges. Similarly, in Maxwell and Peterson, the respective defendants had sentences of imprisonment of 20 months and 17 months, both upheld on appeal.17
[35] In Penny v Police, the High Court on appeal reduced a sentence of 27 months’ imprisonment for charges of driving while disqualified third and subsequent, excess breath alcohol and breach of conditions, to 18 months’ imprisonment on the basis that the original sentence was manifestly excessive. The appellant was also driving dangerously and had failed to stop for police.
14 R v Fraser CA74/06, 12 June 2006.
15 Drinkwater v Police [2013] NZHC 1036.
16 At [20].
17 Maxwell v Police [2013] NZHC 3172; Peterson v Police HC Hamilton CRI-2009-419-11, 20 February 2009.
[36] In Koopu v Police, an end sentence of 21 months’ imprisonment was considered within range for the appellant's eighth drink driving and seventh driving while disqualified offences.18 The previous convictions predated those under appeal by six years. In that case, a starting point of 16 months’ imprisonment on the driving with excess breath alcohol and 12 months’ imprisonment cumulative for driving while disqualified were upheld. The Judge also noted the paramount importance of protecting the public.19
[37] In light of these authorities, it cannot be said that the Judge imposed a manifestly excessive sentence. The starting point and end sentence were both broadly within the appropriate range available to the Judge. The Judge did not impose an uplift for previous convictions. This was appropriate given that recidivism is already reflected in the nature of the offence, being for ‘third or subsequent offences’.20 The end sentence also accorded with the Court of Appeal’s view in Hughes v R that an offence of driving with excess breath alcohol is distinct enough from an offence of driving while disqualified to merit cumulative sentencing.21
[38] The High Court should not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.22 The difference between 15.375 months and 16 months is insufficient to a finding that the sentence was manifestly excessive, even in the context of a short term sentence.
Relevant factors
[39] Failure to engage personal factors at sentencing is a potential error that may justify reconsideration of sentence.23 Mr Welsh’s counsel has submitted that there was relevant material that was not put before the Judge relating to the appellant’s experience of disadvantage and alcoholism, that would have meant the Judge could
18 Koopu v Police [2013] NZHC 1356 cited in Hemara v Police [2017] NZHC 1671.
19 At [8].
20 Penny v Police [2016 NZHC 816 at [30].
21 Hughes v R [2012] NZCA 388 at [22].
22 Ripia v R [2011] NZCA 101 at [15].
23 Akuhata v R [2020] NZCA 19 at 151.
have made an allowance for personal factors. Counsel also has submitted that some allowance should be made for engagement with rehabilitation.
[40] There is no substance in these submissions. The Judge was clearly aware of the appellant’s negative relationship with alcohol and its link with the offending, seen in the imposition of the release conditions requiring the appellant attend psychological assessment, complete any drug/alcohol treatment recommended by probation officers, and to not use or consume any alcohol or drugs not prescribed to him. The appellant’s sentence was clearly tailored to take into account the nature of the offending and the details presented in the PAC report – which does not confirm that the appellant has meaningfully attempted a process of rehabilitation. The report questions Mr Welsh’s ability to comply with release conditions and is unable to confirm whether he had actually attended alcohol and drug counselling.
Conclusion
[41] Both counsel are agreed that the post release condition set out in [2](e) above requiring the appellant not to travel north of New Plymouth, Waiouru and Napier was unconnected with the offences relevant to this sentencing and should not have been imposed. The sentence is accordingly varied by deleting this condition. This does not affect the validity of a similar condition imposed in the earlier unrelated sentencing which continues in effect.
[42] Other than in relation to this one post relevant condition, the appeal is dismissed.
Churchman J
Solicitors:
Crown Solicitor, Palmerston North for Respondent Paul Murray, Solicitor, Palmerston North for Appellant
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