Wilkins v Police

[2023] NZHC 313

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2022-419-000073

[2023] NZHC 313

BETWEEN

GEOFFREY DENE WILKINS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	23 February 2023
Counsel:	SD Taylor for Appellant BB Harris for Respondent
Judgment:	28 February 2023

JUDGMENT OF DOWNS J

This judgment was delivered by me on Tuesday, 28 February 2023 at 9 am.

Registrar/Deputy Registrar

Solicitors/Counsel:

Crown Solicitor, Hamilton. SD Taylor, Hamilton.

WILKINS v POLICE [2023] NZHC 313 [28 February 2023]

The appeal

[1]    Geoffrey Wilkins drove with excess breath alcohol, that being a third or subsequent  offence.1   He  received  a   sentence  of  12   months’  imprisonment.2  Mr Wilkins appeals sentence.

[2]    An appeal in this context must be allowed if there is an error in the sentence and a different one should be imposed.3 Or, in short, if the sentence is manifestly excessive.4

Background

[3]The offending occurred 28 March 2022, at 8.35 pm.

[4]    Mr Wilkins was driving on a residential street in Hamilton. He crossed the centre line and drove on the wrong side of the road. He almost caused a collision, presumably  with  an  oncoming  vehicle.5   Police  attended.   Mr  Wilkins  blew   776 micrograms of alcohol per litre of breath. Mr Wilkins had six previous convictions for like offending:

Date of offence	Offence	Reading
11 December 2015	Breath alcohol over 400 (3+)	614
6 September 2003	Breath alcohol over 400 (3+)	795
15 February 2000	Breath alcohol over 400 (3+)	534
4 December 1999	Breath alcohol over 400 (3+)	915
6 June 1992	Unlicenced driver – breath alcohol over 400	476
4 May 1991	Breath alcohol over 400	800

1      Land Transport Act 1998, s 56(1) and (4).

2      Police v Wilkins [2022] NZDC 19401.

3      Criminal Procedure Act 2011, s 250.

4      Tutukangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.

5      The summary of facts is silent on the nature of the possible collision.

[5]    Judge D J McDonald adopted a starting point of 14 months’ imprisonment and added two months for Mr Wilkins’ history.  The  Judge  deducted  25  percent  for Mr Wilkins’ guilty plea. He declined to commute the sentence to home detention.

A précis of Mr Wilkins’ case

[6]    Mr Wilkins contends the starting point was too high and the uplift inappropriate. He argues the Judge should have discounted the sentence in recognition of alcohol dependency and commuted the sentence to home detention.

Analysis

[7]    Mr Wilkins’ contention the starting point was too high presupposes the offending  falls within the first category  identified by Whata J in Samson v Police.6  It and more serious categories are below:7

(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 (ie offending of the worst kind), 20–24 months.

[8]    On behalf of Mr Wilkins, Mr Taylor contends the first category was appropriate because many of Mr Wilkins’ previous convictions are dated and his breath alcohol level was not that high.

[9]    Mr Taylor is correct many of the convictions are dated. However, the submission overlooks the obvious: Mr Wilkins has a pattern of driving while under the influence of alcohol; and his behaviour has not changed despite the passage of time or sanction. Furthermore, Mr Wilkins’ reading was high, an expression rightly used by Judge McDonald. Indeed, Mr Wilkins was almost twice the legal limit.8 Another aspect meant the offending was not in the first category: Mr Wilkins’ driving. As will be recalled, Mr Wilkins crossed the centre line and almost caused a collision. For all

6      Samson v Police [2015] NZHC 748.

7      At [15(a)–(d)] (footnotes omitted).

8      Land Transport Act, s 56(1).

of these reasons, the offending sat within the second Samson category and toward or at its upper end.

[10]   This observation pre-empts Mr Taylors’ next submission, which is that the Judge erred by adding two months to the starting point for Mr Wilkins’ history. I agree this approach risked double-counting because Mr Wilkins’ history was one of the factors warranting placement in the second category. However, even with the uplift, the global starting point was 16 months’ imprisonment. As observed, the offending sat within the second category and toward or at its upper end.

[11]   Mr Taylor contends the Judge should have discounted the starting point by five percent because Mr Wilkins is dependent on alcohol. On behalf of the respondent, Mr Harris contends the alleged dependency is self-reported, hence not  established.   I disagree. The commission of this offence, Mr Wilkins’ record, and the observations of his probation officer elide to confirm Mr Wilkins has a problem with alcohol.

[12]   It is not obvious a discount for alcohol dependency is appropriate in this context. Drink-driving is criminal because of the risk of harm inherent to the activity. It is therefore not clear alcohol dependency is truly mitigatory. In response, Mr Taylor invokes dependency in a drugs context, which may mitigate drug-dealing if the offender has committed the offence to feed a habit.9

[13]   One response to this is to invoke another analogy: intellectual or mental impairment can mitigate a sentence, but does not always do so for the reason identified by the Court of Appeal in R v Wright:10

…. It may suggest a more or a less risk of a repetition of offending, so as to direct particular attention to issues of personal deterrence or public protection. And these considerations must be synthesised with the sentencing elements of denouncing the fact of violence in our society and acknowledging grievous effects on victims.

Put directly, if dependency on alcohol is a feature of a defendant’s recidivist drink- driving, it is not clear the factor is necessarily mitigatory. However, even if it were,

9      Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.

10     R v Wright [2001] 3 NZLR 22 at [22].

the starting point of 16 months’ imprisonment was readily available to the Judge for reasons explained earlier.

[14]   This leaves the contention the Judge should have commuted the sentence to home detention. Mr Taylor did not press this argument because the passage of time since sentencing has largely overtaken the point. For completeness, I address the submission, which is that home detention should have been imposed given Mr Wilkins had not been imprisoned before, had pleaded guilty, and was responsible for supporting his 81-year-old mother.

[15]   These factors provided support for a sentence of home detention. As against them, the offending was serious; could well have resulted in serious injury or worse; Mr Wilkins has a record of driving while drunk; and his reading was high. The pre-sentence report also provided support for the Judge’s approach. It said Mr Wilkins had:

… little insight into the dangers posed by his offending or the implications of excessive alcohol consumption. Mr Wilkins appeared to believe that he was able to ascertain the level of impairment that would still allow him to safely drive.

The report added Mr Wilkins’ thinking:

… implies a cognitive dissonance in relation to his alcohol consumption and driving, and shows a clear attitude of self-entitlement, poor decision making and lack of consequential thinking.

[16]   The combination meant it was open to the Judge to prefer imprisonment to home detention and by so doing, to focus on the imperatives of denunciation, deterrence, and community protection.

Result

[17]The appeal is dismissed.

…………………………

Downs J