HOLLINGUM v NEW ZEALAND POLICE [2016] NZHC 1291

HOLLINGUM v NEW ZEALAND POLICE [2016] NZHC 1291 [15 June 2016]IN THE HIGH COURT OF NEW ZEALANDBLENHEIM REGISTRYCRI-2016-406-000003[2016] NZHC 1291BETWEEN ASHLEY ROBERT HOLLINGUMAppellantAND NEW ZEALAND POLICERespondentHearing: 14 June 2016Appearances: C J Tennet for AppellantS K O'Donoghue for CrownJudgment: 15 June 2016JUDGMENT OF DUNNINGHAM J[1] On 26 April 2016, the appellant was sentenced in the District Court on charges of driving with excess breath alcohol (3rd or subsequent) and careless driving.1 The appellant had, after pulling over to let one of his passengers out, accelerated away at speed, revving the engine so high that the clutch flywheel flew to pieces. As a consequence, he lost control of the vehicle and crashed into a power pole. The pole was severely damaged and had to be replaced. The vehicle was written off. The appellant's evidential breath test showed the level of alcohol in hisbreath was 688 micrograms per litre of breath. This was his eighth EBA offence.[2] Mr Hollingum pleaded guilty to the charges and was sentenced to 18 months' imprisonment on the EBA charge and ordered to pay approximately $12,500 reparation for the damage caused to the power pole.[3] Mr Hollingum now appeals that sentence on the grounds that the sentence ofimprisonment was manifestly excessive and that the Judge had "steered by the1 R v Hollingum [2016] NZDC 7430.maximum" and that it was wrong to do so. Furthermore, the Judge was wrong not toconsider home detention (or community detention) as mooted by counsel.[4] As counsel for the appellant acknowledges, a complicating factor in this appeal is that Mr Hollingum subsequently faced a charge of assault with intent to injure, to which he pleaded guilty. He was sentenced on 18 May 2016.2 In sentencing him, the District Court Judge took account of the fact that he wascurrently serving 18 months' imprisonment and so matters of totality had to be borne in mind.[5] After going through the sentencing process, the Judge formed a view that "ona standalone basis, a charge like this could easily justify a term of imprisonment ofaround 15 months' imprisonment". After taking into account the circumstances in which the assault took place and the deduction for the guilty plea, he reached an end sentence of 10 months. The Judge then asked himself whether "if all of thesematters had been before me on the same day, would I have considered that an overallsentence of 28 months was the right outcome?" Approaching the matter on a totality basis, he decided that sentence would have been too much and therefore reduced the sentence for assault to seven months' imprisonment to be cumulative on the sentence of 18 months Mr Hollingum is currently serving. He declined to add release conditions, noting that the Judge sentencing on the EBA charge imposed special release conditions to last for six months past his sentence end date which included that Mr Hollingum undertake alcohol abuse treatment and counselling.The grounds of appeal[6] The grounds of appeal set out in the notice of appeal all relate to the sentencing on the EBA charge. They are as follows:(a) the sentence of 18 months' imprisonment, (which was reached by selecting a start point of the two year maximum term and discounting by six months for an early guilty plea), was manifestly excessive, and in error;2 R v Hollingum [2016] NZDC 8887.(b) the Judge was wrong not to consider home detention;3(c) the Judge should have considered imposing an interlock licence instead of the (draconian) three years' disqualification period.Principles on appeal[7] This appeal is an appeal against sentence, and as such is brought under s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act.[8] Specifically, this Court may only allow an appeal against sentence if it is satisfied that there has been an error in the imposition of the sentence, and that a different sentence should be imposed.4 As will be seen, the sentencing decision on the assault becomes relevant when considering the second limb of s 250(2).Was the Judge in error in adopting a starting point of two years?[9] Both the Judge and counsel referred to the leading case of Clotworthy v Police.5 That case analysed the sentences imposed in a number of cases involving multiple EBA offending and identified the factors that were relevant to determining the sentence length. These included the following 10 factors:(a) the breath or blood alcohol level;(b) the length of time that has elapsed since the last drinking driving conviction;(c) conviction for two or more drink driving offences in close succession;(d) the manner of driving; innocuous or dangerous; accident and injury resulting or neither?3 This ground was abandoned at the hearing given the cumulative totality of the sentences.4 Criminal Procedure Act 2011, ss 250(2).5 Clotworthy v Police (2003) 20 CRNZ 439 (HC).(e) whether the offender was disqualified or forbidden from driving at the time;(f) the plea(s) and, if guilty, whether that plea was entered at any early stage or only belatedly;(g) the sentences (in particular, whether they included imprisonment) imposed for previous EBA convictions and the response (or lack of it) to those sentences;(h) the offender's record, if any, of convictions for other types of offending;(i) any genuine remorse shown and/or willingness on the part of the offender to confront his/her contributing alcohol and/or personal problems;(j) any mitigating personal family circumstances contributing to the offending.[10] In this case the appellant acknowledged a number of the factors identified inClotworthy were present. However, the gist of the submission was that while several of these factors were present, this was not a case where, by comparison with other multiple EBA cases, it was inevitable that the maximum penalty should set the starting point.[11] Clearly, the starting point could justifiably have been set at close to the maximum given:(a) the reasonably high breath alcohol level (at two and a half times the legal limit of 250 micrograms per litre of breath);(b) his manner of driving was careless and posed a risk to the safety of himself and others, and caused significant damage to the power pole;(c) the appellant had previously been imprisoned on EBA charges and had not responded well to those sentences of imprisonment;(d) the appellant also has a significant number of convictions for other offending, including for driving offences.[12] These were, nevertheless, some factors in the appellant's favour. These included the fact that there had been some time since his last drink-driving conviction (four years, and more than four years between that and the next previous conviction); and the pre-sentence report recorded his "motivation for making changes" and recommended a sentence of community detention and intensivesupervision.[13] There was, therefore, in my view, a modest amount of information which might suggest that something less than the two year maximum would have been the appropriate starting point before deducting the 25 per cent credit for a guilty plea. I therefore think the Judge was in error when he failed to articulate any reason for adopting the full two years as the starting point.[14] However, that is not the end of the matter. I must still be sure that there is a reason to impose a different sentence. Even if I was to undertake the sentencing exercise afresh, there is no doubt that a starting point of close to the maximum is justified, because of the number of aggravating features set out above, and taking into account the requirement in s 8(d) of the Sentencing Act to impose a sentence near to the maximum if the offending is near to the most serious of cases.[15] Having regard to other cases involving serious multiple EBA offences,6 Iconsider that a sentence of 15 months' imprisonment (taking into account the guiltyplea), could still have been imposed. While a difference of three months in sentence might prompt a Judge to consider whether that was in error of sufficient magnitude to justify a different sentence being imposed, in this case I have another matter to consider which is that the appellant has since received a three month discount in his6 Giddens v Police HC Hamilton AP15/03 1 April 2003; Henry v Police HC Rotorua CRI-2010- 463-58; Russell v Police HC Whangarei CRI-2009-488-46, 15 December 2009 and Walters v Police HC Napier CRI-2007-441-10-12, 11 June 2007.subsequent sentencing for assault, to ensure that, in totality, the sentence he received for the two sets of offending was not excessive. Were I to alter the sentence Mr Hollingum has received on this occasion, that would mean he has received the benefit of a totality adjustment made in the subsequent sentencing exercise, which may not have been received, in whole or in part, if the sentence on the EBA charge had been shorter.[16] Despite my finding that the Judge was wrong to adopt the maximum sentence as his starting point without giving reasons for doing so, I am not persuaded that this is a case where a different sentence should be imposed. The totality of the sentence received on the EBA charges and the subsequent charge is within range and should not be disturbed.[17] Mr Tennet did not pursue the issue of the failure to impose an alcohol interlock licence at the appeal hearing. However, to put the matter beyond doubt, I consider it is implicit in the Judge's decision that he considered the three monthdisqualification period provided for in s 65A, followed by the imposition of an alcohol interlock licence, would have sent an insufficient deterrent and denunciation message. This is clear in his statement:Mr Hollingum has demonstrated over the years that a variety of sentences have been insufficient to prevent the kind of conduct that brings him back before the Court again, and that conduct is such as to put all road users atvery significant risk. He is disqualified, given his long history, for a period of three years fromtoday [18] For the above reasons, the appeal is dismissed.Solicitors:C J Tennet, WellingtonO'Donoghue Webber, Nelson