GEMMELL v NEW ZEALAND POLICE [2021] NZHC 3018

GEMMELL v NEW ZEALAND POLICE [2021] NZHC 3018 [9 November 2021]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI-2021-485-60[2021] NZHC 3018BETWEEN ANGELA MARIE GEMMELLAppellantAND NEW ZEALAND POLICERespondentHearing: 14 October 2021 with further submissions on 19 and 22 OctoberCounsel: J W Griffiths for the Appellant A J Brosnan for the RespondentJudgment: 9 November 2021JUDGMENT OF PALMER JSolicitors:Mainstreet Legal Ltd, Upper HuttCrown Solicitor, WellingtonWhat happened?[1] About 4.40 pm on 9 April 2021, Ms Angela Gemmell drove her grey Holden Astra in Upper Hutt. A witness was concerned that she was driving erratically and called the Police. The Police arrived at her address a short time later. Around 5.58 pm, she returned a breath test result of 1301 micrograms of alcohol per litre of breath.[2] Ms Gemmell pleaded guilty to the offence of driving with a breath alcohol level of more than 250 milligrams of alcohol per litre of breath while holding a zero- alcohol licence. She accepted that s 77 of the Land Transport Act 1998 (the LTA) conclusively presumes that the proportion of alcohol in her breath at the time of the alleged offence was the same as the proportion of alcohol indicated by the test.[3] At sentencing, Ms Gemmell sought to rely on consumption of alcohol after driving home as a mitigating factor. In a case management memorandum in the District Court, the Police acknowledged that factor could not be disproved beyond reasonable doubt and did not dispute that at the sentencing. Ms Gemmell filed an affidavit saying that she was a binge alcoholic who had driven to the bottle store to purchase alcohol before returning to her home and then consuming approximately one and a half bottles of wine. She recalls arriving home and then she says "I went straight to my bedroom and consumed approximately one and a half bottles of wine". While accepting the presumption in the LTA applies to her situation she maintains "I had not consumed alcohol until after driving. I did not drink before or during my driving".[4] The pre-sentence Alcohol and Other Drug report considered it was most unlikely Ms Gemmell had consumed that quantity of alcohol in a short space of time. Ms Gemmell had previously been convicted of drink-driving offences committed in 2016 and 2017 of 1387 and 1210 micrograms of alcohol of litre per breath respectively. For the first conviction, in 2016, she was fined $900.00, ordered to pay court costs of $130.00 and disqualified from driving for one year. For the second conviction, in 2018, she was sentenced to intensive supervision for one year, disqualified from driving for three months and subjected to an alcohol interlock order.[5] On 27 July 2021, in the District Court at Hutt Valley, Judge C Montague considered that Ms Gemmell's offending and two previous convictions indicate anentrenched pattern of drink/driving creating a real risk to her and others. 1 The Judge considered there needed to be a punitive, as well as a rehabilitative, element to the sentence. She sentenced Ms Gemmell to nine months' supervision, six months' community detention and an alcohol interlock order. Ms Gemmell appeals against the community detention sentence, which has been suspended pending this appeal.Law of breath alcohol tests[6] Section 77(1) of the LTA provides:(1) For the purposes of proceedings for an offence against this Act arising out of the circumstances in respect of which an evidential breath test was undergone by the defendant, it is to be conclusively presumed that the proportion of alcohol in the defendant's breath at the time of the alleged offence was the same as the proportion of alcohol in the defendant's breath indicated by the test.[7] In 1977, the Court of Appeal stated in Ministry of Transport v Sowman that proof of drinking substantial quantities of alcohol after driving but before a breath test may amount to a "special reason" not to impose mandatory disqualification under s 30 of the Transport Act 1962, similar to s 81 of the LTA.2 It also observed that "similar considerations would be involved in relation to the discretionary powers of the Court to sentence an offender to imprisonment or a fine". 3 It considered it would be contrary to ordinary principles of sentencing if the Court was precluded from having regard to the culpability of an offender in this way. This was subsequently affirmed by the Court of Appeal in 1983, in Bell v Ministry of Transport which emphasised the discretion of a sentencing court. 4 The Court also observed: 5The door left open by Sowman may just occasionally enable a Court to avoid manifest injustice. In this way the degree of flexibility it allows is no doubt valuable. But it is certainly not available to permit any significant undermining of the effect of the conclusive presumption and the scheme of the Act.[8] The Sentencing Act 2002 was passed after those decisions. The principles of sentencing in s 8 include the requirement at paragraph (a) for a Court to take into1 Police v Gemmell [2021] NZDC 16547 at [4].2 Ministry of Transport v Sowman [1978] 1 NZLR 218 (CA) at 223.3 At 222.4 Bell v Ministry of Transport [1983] NZLR 229 (CA) at 232.5 At 233.account "the gravity of the offending in the particular case, including the degree of culpability of the offender".[9] Section 24(1) of the Sentencing Act provides that, in determining a sentence, a court may accept as proved any fact disclosed by evidence at trial or agreed on by the parties. The court "must accept as proved all facts, express or implied, that are essential to a plea of guilty or a finding of guilt". Section 24(2) sets out the process for resolving disputed facts relevant to sentencing. The court must indicate the weight it would be likely to attach to the disputed fact and its significance to the sentence. A defendant wishing to rely on a disputed fact may adduce evidence as to its existence. The prosecutor must negate beyond a reasonable doubt any mitigating fact raised by the defence.[10] In R v Gatenby, the Court of Appeal held that a finding regarding a disputed aggravating factor which was adverse to the offender could not stand where the s 24 process was not followed.6 The Court determined the appeal on the basis the onus of proof was not met. 7[11] The recent Supreme Court judgment of Fitzgerald v R has some bearing on these issues too.8 A majority of the Court held that s 6 of the New Zealand Bill of Rights Act 1990 (Bill of Rights) requires that the three-strikes provision in s 86D(2) of the Sentencing Act must be given a rights-consistent meaning.9 Section 9 of the Bill of Rights affirms that everyone has the right not to be subjected to disproportionately severe punishment. The Court held that, where application of s 86D(2) would breach s 9 of the Bill of Rights, a discharge without conviction under s 106 would be available.10 I provided counsel with the opportunity to file further written submissions on the implications of Fitzgerald, which they did.Submissions[12] Mr Griffiths, for Ms Gemmell, submits:6 R v Gatenby CA 511/04, 28 April 2005 at [15].7 At [19].8 Fitzgerald v R [2021] NZSC 131.9 At [139] (Winkelmann CJ), [218]–[219] (O'Regan and Arnold JJ), and [251] (Glazebrook J).10 At [6].(a) The majority's approach in Fitzgerald indicates that the Court of Appeal's approach in Sowman should be preferred over Bell. Both cases pre-dated the Bill of Rights. The Court in Bell insinuates that reduction of penalty for consumption of alcohol after driving should be rare. But the Bill of Rights requires the Court to take consumption of alcohol after driving into account as a mitigating factor, in order to take a rights-consistent interpretation of s 8(a) of the Sentencing Act and s 77 of the LTA. That is because allowing mitigation of the penalty where there is no other recourse for breach of the right to be presumed innocent provides a remedy and recognition for the right.(b) The Judge failed to properly assess Ms Gemmell's degree of culpability which s 8(a) requires. The Judge failed to determine the facts specific to Ms Gemmell's level of culpability, according to the process required by s 24, and her evidence should stand. That evidence substantially diminishes Ms Gemmell's culpability to the point where community detention is not warranted, though she accepts the sentence of nine months' supervision is appropriate. The Judge did not take into account the mitigating factor of consumption of alcohol after driving or, in comparison with other cases, did not give it sufficient weight.[13] Mrs Brosnan, for the Police, submits the interpretation of s 77 of the LTA is irrelevant here because Ms Gemmell pleaded guilty and was able to adduce mitigating evidence. She submits the Judge was not required to reduce the penalty imposed because of the mitigating evidence. She was not required to assign it the weight Mr Griffiths submits. Her sentence was within the appropriate range.Should the sentence be reduced?[14] Under s 250 of the Criminal Procedure Act 2011, I must allow the appeal if I am satisfied there is a material error in the sentence and a different sentence should be imposed. Otherwise I must dismiss the appeal. The focus is on whether the end sentence is within the available range. 11 Where an appeal against sentence involves11 Ripia v R [2011] NZCA 101 at [15].determination of facts, there must be an error for an appeal to be upheld and I must come to my own conclusion of the merits, consistent with the approach in Austin, Nichols & Co Inc v Stichting Lodestar.12[15] This case does not concern the interpretation of s 77 of the LTA, and the presumption of innocence, because Ms Gemmell pleaded guilty. Rather, it concerns the effect of Ms Gemmell's mitigating evidence on her sentence. I accept, as the Court of Appeal held in Sowman and affirmed in Bell, that evidence alcohol was drunk after driving, rather than before, is relevant to sentencing an offender for drink-driving. It goes directly to the degree of culpability of the offender, which s 8(a) of the Sentencing Act requires the Court to take into account. That is reinforced by the right under s 9 of the Bill of Rights not to be subjected to disproportionately severe punishment. In some circumstances, a discharge without conviction may be possible, as the Supreme Court held to be possible in Fitzgerald. That may or may not be rare. The extent to which such evidence diminishes the culpability of an offender in a particular case depends crucially on the circumstances of that case.[16] Here, Ms Gemmell's evidence was adduced by affidavit and not disputed by the Police under s 24(2) of the Sentencing Act. Consequently, the mitigating evidence must be taken into account by the sentencing Judge. But the weight to be accorded to any particular fact relied upon during sentencing is a matter for the Judge to consider. Section 24(1)(a) provides that the Court "may accept as proved" any facts agreed on by the prosecutor and the offender. It confers a discretion. It does not require the Judge to accept that the agreed-upon fact is sufficiently reliable to determine the sentence.[17] The Judge here referred explicitly to Ms Gemmell's evidence, as a mitigating factor on which Mr Griffiths made submissions.13 She did not say what weight she accorded it. She explicitly did not determine the implications of the alcohol and drug report that it was most unlikely Ms Gemmell had drunk that amount of alcohol in such a short amount of time. 14 The Judge says explicitly that she took those factors into12 Austen, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.13 Police v Gemmell, above n 1, at [2].14 At [5].account. 15 On that basis, the Judge did not err, if the sentence was within the appropriate range for offending of this type.[18] In 2015, Whata J undertook a useful survey of drink-driving penalties inSamson v New Zealand Police, building on that in Clotworthy v Police in 2003. 16 He offered broad generalisations about starting points on the basis of previous cases: 17(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.[19] Ms Gemmell's high level of breath alcohol, committing two other drink driving offences in close succession in 2016 and 2017 with similarly high readings, and the fact Ms Gemmell was driving on a zero-alcohol licence, are aggravating factors. Even if the high level of breath alcohol is discounted on the basis of Ms Gemmell's evidence, the starting point for Ms Gemmell's offending would lie within the band of nine to 12-months' imprisonment. Even with discounts for the early guilty plea and rehabilitative efforts, a sentence of imprisonment could be the outcome.[20] Nine months' supervision, six months' community detention, and an alcohol interlock order is a better and less restrictive sentence. Unless Ms Gemmell's culpability is substantially discounted on the basis of her mitigating evidence, it was within the appropriate range. The Judge was entitled to assess the mitigating evidence and come to her own view of Ms Gemmell's culpability in the circumstances of this case. She was not required to accept that Ms Gemmell had not drunk any alcohol while she was driving or to substantially discount her culpability. On that basis, I do not consider the Judge erred and another sentence should be imposed.15 At [6].16 Samson v Police [2015] NZHC 748 at [13] citing Clotworthy v Police (2003) 20 CRNZ 439 (HC).17 At [15] (footnotes omitted).Result[21] I dismiss the appeal.Palmer J