Wilson v Police

[2015] NZHC 1263

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI 2015-443-18 [2015] NZHC 1263

BETWEEN

PHILLIP VEITCH WILSON

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	3 June 2015
Appearances:	J Mooney for the Appellant N Laird for the Respondent
Judgment:	8 June 2015

JUDGMENT OF MALLON J

Introduction

[1]      Mr Wilson pleaded guilty to one count of driving with excess breath alcohol (third or subsequent).1   He was sentenced in the District Court at New Plymouth to nine months imprisonment and disqualification for one  year and  one day.2     He appeals against his sentence.   He contends that the starting point adopted by the Judge  was  too  high  and  that  insufficient  credit  was  given  for  his  personal

circumstances leading to an end sentence that was manifestly excessive.

[2]      A further ground of appeal, that the Judge erred in refusing to grant home detention, was discontinued given the time remaining on the sentence.

The offending

[3]      At 3.15 am on 10 October 2014, Mr Wilson was stopped during a routine traffic stop.  He elected to give a blood sample, which returned a result of 146 mgs

1      Land Transport Act 1998, s 56(2) (maximum penalty of two years imprisonment or a fine not exceeding $6,000, and disqualification for more than one year).

2      Police v Wilson [2015] NZDC 3973 (Judge A C Roberts).

WILSON v NEW ZEALAND POLICE [2015] NZHC 1263 [8 June 2015]

of alcohol per 100 mls of blood.  He said that he had had a couple of drinks after returning home from a work call out, and that he had then been called out to work again.

Mr Wilson’s circumstances

[4]      Mr Wilson is 51 years old.  At the time of the offending he was in full-time employment in the telecommunications industry.  He was living with his partner who was described by the pre-sentence report writer as being strong pro-social support for him.

[5]      He has relevant previous convictions:

(a)      1985: driving with excess breath alcohol (level unknown) for which he received six months disqualification and a fine of $330.

(b)2003: driving with excess breath alcohol (a reading of 794) for which he received six months disqualification, a fine of $800, and Court costs of $130.

(c)      2008: refusing a request for a blood specimen (third or subsequent) for which he received indefinite disqualification, a fine of $1,200, and Court costs of $130.

(d)2009 (sentenced in 2010): driving while disqualified and driving with excess blood  alcohol  (third or subsequent)  (a  reading of 313) for which he received one year of intensive supervision, six months of community detention, indefinite disqualification, and an order prohibiting interest in a motor vehicle.

[6]      His other convictions are dated, relatively minor and of a different kind.

[7]      Mr Wilson was described by the pre-sentence  report writer as  a chronic alcoholic.  He was assessed as requiring intensive rehabilitation in order to reduce his risk of reoffending.  He completed his community detention sentence in 2010 and his intensive supervision sentence in 2011.   It is not clear what rehabilitative assistance he had at this time other than attending some counselling and a course with the MASH Trust.  He self-referred and completed a detox programme through

the Salvation Army in 2013.  He did so again in March 2015.  He also attended a further course with the MASH Trust in January 2015.

[8]      Mr Wilson told the pre-sentence report writer that he was “gutted” at his decision to drive again under the influence.  He is disappointed with himself and the impact his actions have had and could potentially have on others.  The report writer assessed his remorse as genuine. The writer’s recommendation was for a sentence of home detention to provide the opportunity to undertake focussed rehabilitation with probation oversight and support.

[9]      A letter from the Salvation Army was submitted to the Judge at sentencing. The writer of that letter referred to Mr Wilson’s self-referral to their services and was of the view that Mr Wilson genuinely wanted to change his life.  The writer referred to programmes that would be suitable for Mr Wilson.

District Court sentence

[10]     The Judge considered that the aggravating features were:3

…

1)The blood level.  Here, the level reading 146.  It is not quite twice the baseline but it is getting up there in the mid to high range.

2)The proximity of your last conviction; four years ago and the next, six years previous. They are not diminishing.

3)        The last two mentioned offences were in quick succession.

4)On  no  prior  occasion  have  you  been  imprisoned.    On  that  last occasion there was a rehabilitative focus with a sentence of supervision.

[11]     The  Judge  adopted  a  starting  point  of  12  months  imprisonment.4    He considered that home detention was not appropriate because: 5

3      Police v Wilson, above n 2, at [22].

4      In reaching that starting point he referred to two cases which counsel for Mr Wilson had referred him:   Nisbit v Police [2014] NZHC 3101, and Tutahi v Police [2014] NZHC 3354. In these cases, starting points of eight and 12 months imprisonment respectively were adopted. The Judge also noted that in Spooner v Police HC Rotorua CRI-2010-463-55, 31 August 2010, which was mentioned in Nisbit v Police, a starting point of 18 months imprisonment was upheld.

5      Police v Wilson, above n 2, at [28].

…

1)This offending is against a backdrop of previous convictions and is now becoming serious.

2)You have had a long-term alcohol issue and it does seem that you have not been deterred by previous sentencing processes.

3)        Intensive supervision has already been engaged.

4)To sentence you otherwise would not sufficiently serve to emphasise the principle of deterrence.

5)You need residential rehab.   Your focus still seems to be on job retention.

Assessment of appeal

[12]     Counsel for Mr Wilson submits that the starting point was too high.   She refers to the length of time over which Mr Wilson’s convictions occurred, that there were no other aggravating factors such as associated bad driving, that Mr Wilson had taken steps to address his long-standing issues with alcohol, and that imprisonment was a significant escalation of penalty for him.6   She submits that an end sentence of five  to  six  months  imprisonment  was  appropriate.    Counsel  for  the  respondent

submits  that  the starting point  was  within  range  and  the  end  sentence was  not manifestly excessive.7

[13]     I consider that the Judge’s starting point of 12 months imprisonment was stern.  Mr Wilson’s history was poor but there are certainly a number of cases where a lesser starting point has been taken for offenders with similar or worse histories.8

[14]     I agree with the Judge that, in view of Mr Wilson’s history, the sentence needed to bring home to him that a lasting change was necessary.  A sentence of imprisonment would serve that purpose.   Mr Wilson’s pre-sentence report offered

some hope in that regard.  Notwithstanding that relatively positive report, the Judge

6      Counsel refers to Bechan v Police [2015] NZHC 747, where this point led the Judge to conclude that the term of imprisonment was manifestly excessive.

7      She notes that the end sentence of nine months imprisonment in this case is close to the end sentence of eight months imprisonment in Bechan v Police, above n 6, a case in which it was considered there had been genuine, although unsuccessful, attempts at rehabilitation.

8      For example, one of the cases the Judge was referred to by counsel for Mr Wilson (refer to footnote 4  above).    See  also  Fonoti  v  Police  [2015]  NZHC  200;  Mokotupu v  Police  HC Christchurch CRI-2009-409-19, 19 February 2009; and Matkovitch v Police [2013] NZHC 872.

was dismissive of the efforts Mr Wilson had made.  He considered that Mr Wilson

“had [his] chance with rehabilitation” through his earlier sentences.9

[15]     Judges are entitled to be sceptical when habitual drink drivers say that they intend to address their alcohol problem.   In this case, however, I consider that the Judge was wrong not to take into account Mr Wilson’s efforts and progress, even though they have not been entirely successful.10   Importantly, the previous sentence of supervision appears to have had some measure of success in that there was no further offending between August 2009 and the present offending five years later.

Also importantly, Mr Wilson had self-referred for “detox” a year before the present offending and again after it.  The pre-sentence report writer assessed his remorse as genuine.    Mr Wilson had employment and pro-social support.    In these circumstances, rehabilitation remains a realistic prospect.

[16]     The combination of the stern starting point, and the absence of recognition for the steps he had taken and was willing to take to address his alcohol problem, led to a sentence that was manifestly excessive.  I consider that an end sentence of seven months imprisonment is appropriate.  Although this is just two months less than the sentence   imposed   in   the   District   Court,   it   represents   a   total   reduction   of approximately 22 per cent, which is not insignificant.

Result

[17]     The  appeal  is  allowed.    The  sentence  of  nine  months  imprisonment  is quashed.   A sentence of seven months imprisonment is substituted.   The special conditions and disqualification period, as ordered in the District Court, remain in place.

Mallon J

9      Police v Wilson, above n 2, at [24].

10     This was an error in terms of s 250(2)(a) of the Criminal Procedure Act 2011; see Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26] to [36] for approach on appeal.