BURDON v NEW ZEALAND POLICE [2017] NZHC 3088

BURDON v NEW ZEALAND POLICE [2017] NZHC 3088 [12 December 2017]IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYI TE KŌTI MATUA O AOTEAROAŌTEPOTI ROHECRI-2017-412-53[2017] NZHC 3088BETWEEN ANTONY MARK BURDONAppellantAND NEW ZEALAND POLICERespondentHearing: 11 December 2017Appearances: J A Westgate for AppellantR R Smith for RespondentJudgment: 12 December 2017JUDGMENT OF NICHOLAS DAVIDSON JBackground to appeal[1] On 27 May 2017 Mr Burdon, the appellant, was stopped by police for speeding.An evidential breath test disclosed 631 micrograms of alcohol per litre of breath. Hewas subject to a zero alcohol licence at the time, having previously been convicted fordriving with excess breath alcohol.[2] The appellant was sentenced in the District Court to 20 months imprisonmentfor driving with an excess breath alcohol while holding a zero alcohol licence.1 Heappeals on the grounds that the sentence was manifestly excessive based on the startingpoint adopted by the Judge, and insufficient discount given for his guilty plea. Mr1 Police v Burdon [2017] NZDC 20252.Westgate, for the appellant, submits that an end sentence of no more than 13 monthsimprisonment should have been imposed.Jurisdiction[3] Appeals against sentence are brought under s 244 of the Criminal ProcedureAct 2011, and must be determined in accordance with s 250 of that Act. This Courtmay only allow such appeal if it is satisfied there has been an error in the impositionof the sentence, and that a different sentence should be imposed.2[4] If the sentence is justified under relevant sentencing principles, it is not for thisCourt to substitute its own views for those of the sentencing Judge. Only if thesentence is "manifestly excessive" will the Court interfere with the exercise ofthe Judge's discretion.District Court sentencing[5] In sentencing the appellant, the Judge recognised the following aggravatingfactors of the offending:(a) the prolonged and repetitious history of driving with excess breathalcohol;(b) the recent conviction for that offence;(c) that the appellant held a zero alcohol licence at the time;(d) the appellant was speeding at 114km/hr in a 100km/hr zone.[6] The Judge was sceptical of the appellant's remorse, as had he been trulyremorseful, he would have learnt his lesson from the many times he had appearedbefore the court, and whilst in prison.2 Criminal Procedure Act 2011, ss 250(2) and 250(3).[7] The Judge adopted a starting point of 20 months imprisonment and alloweda ten per cent discount for the guilty plea. An end sentence of 18 months imprisonmentwas imposed. The appellant was disqualified from driving for a further 20 months.Submissions on appeal[8] Mr Westgate submits that the appellant's offending falls within upper category(b), or lower category (c) of Samson v Police.3 Aggravating factors are the high levelof intoxication, dangerous driving, the recent conviction for excess breath alcohol andthe long history of driving related offending. Mr Westgate submits that a starting pointof no more than 18 months was appropriate.[9] He further submits that the Judge was wrong to allow only a ten per centdiscount for the guilty plea, which was entered early in the process. The appellant wasco-operative and took steps to get help for his drinking problem. He tookresponsibility for his offending, and expressed remorse.[10] Mr Smith, for the Police, submits that the Judge's starting point of 20 monthsimprisonment was within the range of Samson, having regard to the aggravatingfeatures.[11] Mr Smith refers to s 8(c) of the Sentencing Act 2002 that the court must imposethe maximum penalty described for the offending if it is within the most seriouscategory of cases. On that basis, the Crown submits that a starting point of 20 monthsimprisonment was within the available range, at the Judge's discretion.[12] As to the credit for guilty plea, the Crown submits that the Judge was right tobe sceptical about the appellant's remorse and efforts to get help for his drinking. TheJudge noted that the appellant has continued to offend despite the benefit ofrehabilitative programmes when in prison. Mr Smith submits that there was nothingexceptional about the appellant's remorse and his rehabilitative steps were in theirinfancy. The Judge was justified in his scepticism.3 Samson v Police [2015] NZHC 748.[13] Lastly, Mr Smith submits that it is a significant aggravating factor for theappellant to offend in this way while holding a zero alcohol licence. A sentence ofimprisonment toward the upper end of the range is entirely orthodox.Discussion[14] Under s 57AA(4) of the Land Transport Act 1998, a person who holds a zeroalcohol licence commits an offence if he or she drives while their alcohol level exceeds250 micrograms per litre of breath. The appellant had 631 micrograms of alcohol perlitre of breath. The maximum penalty is imprisonment for a term not exceeding 2years or a fine not exceeding $6000; and the court must order the person to bedisqualified from holding or obtaining a driver licence for 1 year or more.4[15] Section 57AA was introduced into the Land Transport Act 1998 by the LandTransport (Road Safety and Other Matters) Amendment Act 2011. When the Bill wasfirst introduced by the then Minister of Transport, the intention was to addressNew Zealand's high level of road deaths and injuries by focusing on inexperienceddrivers and repeat drink-drivers.5 The Minister noted that drink drivers are responsiblefor one-third of all deaths on our roads. The Minister said:Primarily, this bill is about road safety. It is not always the sexiest topic but itis very important, because we all use the roads and we are all at the mercy ofwhoever else is on the road at the same time as we are. Driving is a seriousjob, and many of us, I am sure, have been guilty at times of not treating it asseriously as we should[16] In Samson v Police, Whata J set out four categories of offending:6(a) no serious or only moderately aggravating factors, 9–12 monthsimprisonment;(b) one or more aggravating factors, 12–18 months; and4 Land Transport Act 1998, s 57AA(6).5 (16 September 2010) 666 NZPD 14070.6 Samson v Police, above n 3, at [15].(c) multiple offences with seriously aggravating factors, 18-20 months;and(d) multiple offences and very serious aggravating factors (i.e. the worstoffending of its kind), 20-24 months imprisonment.[17] He described "serious aggravating factors" as being:7(a) high levels of intoxication;(b) dangerous driving;(c) close proximity to previous EBA offending; and(d) prolonged and continuous history of driving related offending.[18] I add that drink driving while holding a zero alcohol licence is a seriouslyaggravating factor.[19] In Samson, Whata J determined that a starting point of 20 monthsimprisonment was too high for the excess breath alcohol offending where the appellanthad four previous convictions for excess breath alcohol offending and six previousconvictions of driving while disqualified. He considered that the offending fell intothe third category, attracting a starting point of 12-18 months imprisonment. Mr Smithsubmits that in Samson, His Honour found that there was no clear evidence that theappellant was speeding, and regarded his driving behaviour at the time of the offendingas neutral. As to the third category of offenders, Mr Smith refers to a number of caseswhich attracted starting points of 18-20 months imprisonment.(a) Toetoe v Police– A starting point of 16-18 months imprisonment wasjustified where the appellant had seven previous convictions for excessbreath alcohol offending, although there was almost a decade between7 At [13]–[14].convictions and almost three years since the appellant's lastconviction;8(b) Koopu v Police where a 16 month starting point was upheld in respectto the appellant's eighth conviction for driving with an excess breathalcohol;9(c) Kucenko v Police where a starting point of 20 months imprisonmentwas upheld in respect to an appellant who had been convicted on nineprevious occasions for driving offences.10Was the starting point was manifestly excessive?[20] This is the appellant's tenth conviction for driving with excess breath alcohol,dating back to 1989:(a) 5 May 1989: Unlicensed Person Driving, Excess breathalcohol, 650 mcg/L(Disqualified from driving for 6 months.)(b) 1 December 1990: Excess breath alcohol, 550 mcg/L(Disqualified from driving for 9 months,$250 fine.)(c) 8 December 1990: Excess breath alcohol, 176 mcg/L(Disqualified from driving for 9 months,$250 fine.)(d) 15 January 1995: Excess breath alcohol, 785 mcg/L(Disqualified from driving for 6 months, fine$600, final warning)8 Toetoev Police [2014] NZHC 434.9 Koopu v Police [2013] NZHC 2686.10 Kucenko v Police [2013] NZHC 1356.(e) 15 June 1996: Excess breath alcohol, 798 mcg/L(Disqualified from driving for 6 months, fine$850, final warning)(f) 8 May 2004: Excess breath alcohol, 3rd or subsequent(Community Work 250 hours Disqualified fromdriving for 1 year, fine $100, final warning)(g) 1 October 2010: Excess breath alcohol 135 mcg/L, 3rd orsubsequent(Imprisonment 3 months, Disqualified fromdriving for 2 year,)(h) 23 October 2010: Excess breath alcohol 1019 mcg/L, 3rd orsubsequent(Imprisonment 9 months Disqualified fromdriving for 9 months)(i) 19 March 2015: Excess breath alcohol, 807 mcg/L, 3rd orsubsequent(Imprisonment 1 year Disqualified from drivingfor 1 year, Apply zero alcohol licence).[21] The prolonged and patterned offending poses a grave risk to the public, andshows a complete disregard for the law. The Judge observed that the rehabilitativeprospects of the appellant are limited and the sentence must primarily reflectdenunciation and deterrence. I agree that rehabilitative efforts must never be put asideas a lost cause.[22] In this case, as identified by the Crown and the Judge, a starting point of20 months imprisonment is well within the range. The bands in Samson are not fixedbut allow a systematic approach to sentencing.[23] In Hessell v R, the Supreme Court emphasised that all circumstances in whichthe plea was entered must be addressed, not merely the timing.11 This involveswhether it is truly to be regarded as an early or late plea, and the strength of theprosecution case.12 Only then can a court decide the mitigatory effect of the guiltyplea. The Court held:13The policy reasons for giving credit for guilty pleas in sentencing do notjustify an approach which treats as irrelevant, or of peripheral relevance, thecircumstances in which the plea is entered and what they indicate aboutacceptance of responsibility for the offending. The credit given should alsolegitimately reflect the benefit provided to the system and to participants in it.Overall, the sentencing task remains one of evaluation that leads to what thejudge is satisfied is the right sentence for offending in light of the offender'sacknowledgement of guilty and all other relevant circumstances.[24] In light of Hessell, the Judge was not bound to apply a 25 per cent or even20 per cent discount for a guilty plea. While the appellant's guilty plea saved the costof a trial, a conviction was likely. The Judge was also entitled to be sceptical ofremorse demonstrated by the appellant and no allowance was warranted for that initself.[25] It is true that the discount for a prompt guilty plea is often 20 per cent or 25 percent, but as discussed above, it is not fixed. It is so frequently applied that a substantialdeparture from it should be clearly justified. Mr Westgate acknowledges that there wasno obvious technical defence to the charge, but the discount should still be availableto those who promptly enter a plea of guilty, so there is no attempt to game the judicialsystem simply to gain time before facing the inevitable, or hoping for someprosecution misfortune, such as witness unavailability. A discount in that sense is anencouragement to facilitate the judicial process and that is why delay in entering aguilty plea hardens the approach to discounting. Sometimes the delay may beunderstood, as information about the prosecution evidence becomes available to thedefence. Every case will turn on its own facts.[26] I conclude that a greater discount may have been allowed, not necessarily25 per cent, perhaps 20 per cent, and while that may arithmetically lead to an11 Hessell v R [2010] NZSC 135 at [51].12 At [74].13 At [65].adjustment in sentence, I conclude that the offending is so serious that the end sentencecannot be described as manifestly excessive. It is the end sentence with which thecourt is concerned on appeal. Indeed, I would be inclined to have stepped outside thesentencing bands, and adopted a starting point in excess of 20 months. This isextremely serious and troubling offending, to the Court, and the community.Disposition[27] The appeal is dismissed..Nicholas Davidson JSolicitors:J A Westgate, DunedinRPB Law, Dunedin