HALFORD v NEW ZEALAND POLICE [2020] NZHC 2016

HALFORD v NEW ZEALAND POLICE [2020] NZHC 2016 [10 August 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2020-404-207[2020] NZHC 2016BETWEEN ANDREW STEVEN HALFORDAppellantAND NEW ZEALAND POLICERespondentHearing: 10 August 2020Appearances: D-M Cross for the appellantD B Dow and J Y Ha for the respondentJudgment: 10 August 2020ORAL JUDGMENT OF JAGOSE JCounsel/Solicitors:D-M Cross, Barrister, AucklandMeredith Connell, Crown Solicitor, Auckland[1] Andrew Steven Halford appeals against his sentencing by Judge N R Dawsonin the District Court at Auckland on 18 May 2020 to three months' communitydetention, twelve months' supervision, and indefinite disqualification from driving, onhis third charge of driving with excess breath alcohol.1Background[2] Driving on Auckland's Green Lane West in the early hours of 4 February 2020,Mr Halford was stopped by police, he showing "signs of recent alcohol intake". Anevidential breath test returned 720 micrograms of alcohol per litre of his breath, nearlytwice the maximum permissible 400 micrograms). Mr Halford admitted drinking athome, but thought he was "ok to drive". He pleaded guilty at an early stage, to whatwould be his third offence of driving with excess breath alcohol (previously, on19 April 2013 and 4 July 2016).Judgment under appeal[3] Taking community protection to be the principal sentencing factor here, theJudge denounced Mr Halford's recidivism, which rendered his expressions of remorse"a little bit shallow", but noted his steps in rehabilitation in the intervening threemonths since offending, as independently evidenced in documents before the Judge.He reduced an initial starting point of 10 months' imprisonment to six months onaccount of Mr Halford's personal mitigating factors and early guilty plea, which heconverted to three months' community detention. Although it is not mentioned in theJudge's sentencing notes, it appears Mr Halford also was sentenced to the maximum12 months' intensive supervision.2[4] Mr Halford's counsel, Maree Cross, argues the minimum six months'supervision was justified as "the least restrictive outcome appropriate in thecircumstances",3 Mr Halford's prior offending on three- and four-year intervals notbeing persistent, and his self-help illustrating his rehabilitation was not reliant on1 Land Transport Act 1998, ss 56(1) and 56(4). Maximum penalty: two years' imprisonment or afine of $6,000. The defendant must also be disqualified from holding or obtaining a driver'slicence for more than one year. (But see s 65AC.)2 Sentencing Act 2002, s 45(2).3 Section 8(g).supervision. His demonstrated engagement with Alcoholics Anonymous andcounselling, and voluntary community work, shows he accepts responsibility for hisoffending. The maximum term of supervision overemphasises the Judge's concernsfor community protection, she submitted, and thus impermissibly is punitive.4Approach to appeals against sentence[5] I must allow Mr Halford's appeal only if satisfied there is an error in hissentence, and a different sentence should be imposed.5 In any other case, I mustdismiss the appeal.6 The approach previously taken by courts on sentencing appealscontinues to apply,7 so that the measure of error is the sentence be "manifestlyexcessive" – a principle "well-engrained" in this Court's approach to sentenceappeals.8 I will not intervene where the sentence is within the range that can properlybe justified by accepted sentencing principles. Whether 'manifestly excessive' is to beassessed in terms of the sentence given, rather than the process by which it is reached.9Discussion[6] Section 46 of the Sentencing Act 2002 enables supervisory sentences only ifthe court is satisfied "a sentence of supervision would reduce the likelihood of furtheroffending by the offender through the rehabilitation and reintegration of the offender".Inferentially, the Judge must have been so satisfied, and there is no dispute a sentenceof supervision here would reduce the likelihood of Mr Halford's further offendingthrough his rehabilitation and reintegration.[7] What then was available to lead the Judge to the maximum, rather than theminimum, supervisory sentence?[8] Conversely to the case on which Ms Cross relies, of a first-time drink driverassessed without alcohol dependency issues, Mr Halford is assessed by Corrections ashaving issues with alcohol use and impulsivity. By his own admission, he is an4 Creegan v Police [2015] NZHC 1513 at [34]–[35].5 Criminal Procedure Act 2011, s 250(2).6 Section 250(3).7 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].8 At [33] and [35].9 Ripia v R [2011] NZCA 101 at [15].alcoholic who depends on alcohol as a coping mechanism. Recidivist drink driverswhose offending is attributable to underlying alcoholism require a supervisorysentence's support to promote their rehabilitation and protect the community. Hard-to-address addictive illness may increase the weight to be given to concerns of publicprotection, even where also informing the culpability disclosed by the offendingitself.10[9] There is a measure of persistence in Mr Halford's offending, over an extendedperiod of time. The Court of Appeal recently characterised drink driving as "amoderately serious offence when seen by reference to its potential consequences andto the pervasiveness of alcohol abuse in our society".11 Mr Halford's resort to alcoholhere in response to adverse life events, and his consequent poor judgement in driving,suggests his self-directed rehabilitation remains fragile. The imposition of themaximum term of supervision in such a case is warranted to help ensure necessarysupport remains in place to help Mr Halford respond to near-term adversity and toembed his newly-addressed rehabilitation.[10] In its totality, the Judge's sentence is closely comparable to like offending.12Given Mr Halford's term of supervision must be at the upper end of the available term,any adjustment would be tinkering, without any objective foundation for doing so.[11] I am not satisfied the Judge erred in imposing the maximum supervisorysentence, or a different sentence should be imposed.[12] Ms Cross also argues, without "special reasons relating to the qualifyingoffence", the Judge erred in not replacing Mr Halford's mandatory disqualificationwith an alcohol interlock licence.13 Counsel for the police, Dennis Dow, agrees thiserror may be corrected on appeal.10 E (CA689/10) v R [2011] NZCA 13, (2011) 25 CRNZ 411 at [69], citing R v Wright [2001] 3NZLR 22, (2001) 18 CRNZ 527 (CA) at [22]; and R v Taueki [2005] 3 NZLR 372, (2005) 21CRNZ 769 (CA) at [45].11 Basnyat v Police, [2018] NZCA 486, [2019] 2 NZLR 344 at [19].12 Hansch v Police [2014] NZHC 2438.13 Land Transport Act 1998, ss 65(2) and (3A) and 65AC(1) and (3).[13] In this respect, I am satisfied the Judge erred in not specifying any 'specialreasons', and a different sentence should be imposed because I cannot identify any'special reasons', for Mr Halford's mandatory disqualification to be replaced by analcohol interlock order. The practical result is Mr Halford's actual period ofdisqualification will be for 28 days, after which he may hold or obtain an alcoholinterlock licence (or thereafter a zero alcohol licence) as may be granted.14Result[14] I therefore allow the appeal in part, to quash the Judge's indefinitedisqualification of Mr Halford from driving pursuant to s 65 of the Land Transport Act1998, and substitute an alcohol interlock sentence pursuant to s 65AC.[15] Otherwise, the appeal is dismissed.—Jagose J14 Section 65AE(a).