SCHRODER-MANN v NEW ZEALAND POLICE [2019] NZHC 152

SCHRODER-MANN v NEW ZEALAND POLICE [2019] NZHC 152 [14 February 2019]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2018-409-000121CRI-2018-409-000122[2019] NZHC 152BETWEEN BENJAMIN SCHRODER-MANNAppellantAND NEW ZEALAND POLICEDEPARTMENT OF CORRECTIONSRespondentsHearing: 7 February 2019Appearances: C Nolan for AppellantS Bicknell for RespondentsJudgment: 14 February 2019JUDGMENT OF DUNNINGHAM JIntroduction[1] On 2 November 2018 Judge Garland sentenced the appellant to 15 months'imprisonment on charges of driving with excess breath alcohol (3rd or subsequent);breaching a zero-alcohol licence; breaching Police bail; and breaching a sentence ofcommunity work. The appellant appeals that sentence on the ground that it ismanifestly excessive.Facts[2] On 22 May 2018, Police stopped the appellant while driving. At the time heheld a zero-alcohol licence. An evidential breath test returned a positive result of838mg of alcohol per litre of breath. The appellant explained that he had been drinkingthat night and a friend was sober driving. That friend was involved in a collision andnot in a condition to drive. At that point, he made the decision to drive them home.District Court decision[3] Judge Garland outlined the facts relating to the appellant's drink-drivingoffending, as set out above and noted that the appellant had six previous convictionsfor driving with excess breath alcohol. He had been issued a zero-alcohol licence on1 July 2017, but acknowledged to his probation officer that he had driven afterconsuming alcohol on more than three occasions since then. He also acknowledged aproblem with methamphetamine use. The Judge noted that the appellant had nearly$20,000 in outstanding fines and so "the community-based approach had not worked".[4] The Judge adopted a starting point of 16 months' imprisonment for the excessbreath alcohol and breach of zero alcohol licence. He then gave credit for guilty pleas,and an end sentence of 12 months was imposed on each of those two charges. He alsodisqualified him from driving for two years.[5] In relation to the charge of breach of community work, the Judge took a onemonth starting point for that offending. He also granted the appellant's application tocancel it and noted he therefore needed to be re-sentenced for the earlier charge ofdriving whilst suspended (third or subsequent) and adopted a three month startingpoint for that offence. From the combined four month sentence on those two charges,he gave a discount of one month for guilty pleas and the ten hours work already done.[6] The end sentence imposed was 15 months' imprisonment.[7] The Judge declined to impose a home detention sentence, noting that theappellant had "previously had the benefit of home detention and community basedsentences" but that had failed to change his behaviour. He was not satisfied thatanother sentence of home detention would be likely to have any rehabilitative benefit.Principles on appeal[8] Appeals against sentence are allowed as of right by s 244 of the CriminalProcedure Act 2011, and must be determined in accordance with s 250 of that Act. Anappeal against sentence may only be allowed by this Court if it is satisfied that therehas been an error in the imposition of the sentence and that a different sentence shouldbe imposed.1 As the Court of Appeal stated in Tutakangahau v R, "an appellate courtwill not intervene where the sentence is within the range that can be properly bejustified by accepted sentencing principles".2 It is only appropriate for this court tointervene and substitute its own views if the sentence being appealed is "manifestlyexcessive" and not justified by the relevant sentencing principles.3SubmissionsThe appellant's submissions[9] Mr Nolan, for the appellant, submits that the end sentence was manifestlyexcessive because the starting point was too high in relation to both sets of charges.The appellant relied on the decisions of Clotworthy v Police,4 a decision of Wild Jwhich reviewed a range of authorities in relation to driving with excess breath alcoholconvictions, and of Whata J in Samson v Police,5 where the High Court againdiscussed sentencing for charges of driving with excess breath alcohol.[10] In Samson, the Court acknowledged that Clotworthy provided the frame forsentencing for EBA offending (third and subsequent) in terms of aggravating andmitigating factors. The Court then set out some general guidance in relation to startingpoints for such offending:(a) No seriously or only moderately aggravating factors, 9-12 moths;(b) One or more aggravating factors, 12-18 months;1 Criminal Procedure Act 2011, ss 250(2) and 250(3).2 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].3 Ripia v R [2011] NZCA 101 at [15].4 Clotworthy v Police (2003) 20 CRNZ 4395 Samson v Police [2015] NZHC 748.(c) Multiple offences with serious aggravating factors, 18-20 months;(d) Multiple offences and very serious aggravating factors (i.e. offendingof the worse kind), 20-24 months.[11] In light of Clotworthy and Samson, Mr Nolan submits the following factors arerelevant to the appellant:(a) Breath alcohol level: 838 micrograms;(b) Length of time since last relevant conviction: Mr Schroder-Mann's lastexcess breath alcohol conviction was February 2014 with an offencedate of 22 December 2013;(c) Manner of driving: There is no suggestion that Mr Schroder-Mann'sdriving was poor;(d) Whether the defendant was disqualified or forbidden from driving atthe time: Mr Schroder-Mann was not disqualified from driving, he didhave a zero-alcohol licence;(e) Plea: Mr Schroder-Mann entered guilty pleas at the earliestopportunity;(f) The sentences imposed for previous EBA convictions and response:Mr Schroder- Mann was sentenced to 9 months imprisonment in 2014in relation to a raft of charges including an excess breath alcohol thirdor subsequent, driving whilst disqualified time two, unlawfully takesmotor vehicle, failing to stop when followed by red and blue flashinglights and driving in a dangerous manner;(g) Previous convictions: Mr Schroder-Mann has six previous convictionsfor driving with excess breath alcohol dating back to 2010;(h) Remorse and willingness to confront problems: Mr Schroder-Mannhad expressed a willingness to engage with rehabilitative services andacknowledged his ongoing needs; and(i) Personal and family circumstances: Mr Schroder-Mann was residingwith his mother; the address was available for a sentence of homedetention.[12] Mr Nolan submitted that there were only moderately aggravating factors in thiscase so a starting point for the excess breath alcohol charge should have been nine to12 months' imprisonment.[13] In relation the breach of community work, the appellant acknowledged that hecould not complete the remaining hours of community work and filed his ownapplication to cancel, so an alternative sentence was to be sought. The maximumpenalty for a charge of breach of community work is three months imprisonment.Mr Nolan submitted that the District Court Judge in effect imposed a starting point offour months imprisonment on this charge which was reduced by one month on accountof the guilty plea. The appellant had one previous conviction for breachingcommunity work in 2010 and Mr Nolan submitted that an appropriate starting pointfor this charge was one months' imprisonment.[14] In conclusion, the appellant says the total starting point should be in the rangeof 10 - 13 months' imprisonment.[15] The appellant also considers Judge Garland's refusal to consider homedetention ignored s 8 of the Sentencing Act, in that the Judge did not impose the leastrestrictive outcome appropriate in the circumstances. Mr Nolan notes the appellanthas received sentences of home detention on three previous occasions in 2011. Nobreaches of this sentence are noted in his conviction history, although the appellantdoes have one conviction for a breach of post detention conditions. He pointed outthat the appellant was aged 25 years old at the time of sentencing and may havebenefitted from a rehabilitative sentence. An address was available residing with hismother who was supportive of a home detention sentence.The respondent's submissions[16] The respondent also relied on Samson v Police as setting out a framework todeal with excess breath alcohol offending. The respondent submits that the mainaggravating feature in this case is the high level of intoxication, particularly when hewas subject to a zero alcohol licence. This places it in the second category of Samsonwarranting a starting point of 12 to18 months.[17] In addition, the respondent relies on several cases which Ms Bicknell sayssupports the starting point adopted. In Ruru v Police,6 Thomas J upheld an 18 monthstarting point for driving with excess breath alcohol (third or subsequent). Theappellant in that case was driving in breach of his restricted licence conditions and hada breath alcohol level of 740 micrograms per litre of breath. He also had five previousconvictions for driving with excess breath alcohol. On appeal, Thomas J made noadverse comment about the starting point. She did, however, replace imprisonmentwith a period of home detention, albeit adjusting it for time served.[18] In Toetoe v Police, Brewer J held that a starting point of 16 to 18 months'imprisonment was justified on one charge of driving with excess breath alcohol (thirdor subsequent), where the appellant was found to have a breath alcohol reading of692 mg of alcohol per litre of breath and it was his eighth conviction for driving withexcess breath alcohol.7 Similarly, in Koopu v Police, Woodhouse J upheld a startingpoint of 16 months' imprisonment for a seventh driving with excess breath alcoholcharge.8[19] The respondent submits that the appellant was subject to zero alcohol license,yet was three times over the adult legal limit. That is a significantly aggravatingfeature. Thus, although the starting point was stern, it was within the range proposedby Sampson.6 Ruru v Police [2018] NZHC 114.7 Toetoe v Police [2013] NZHC 2686.8 Koopu v Police [2013] NZHC 1356.[20] With respect to the breach of community work and need to re-sentence him forhis sixth driving while suspended charge, the respondent says Judge Garland adopteda four-month starting point for the combination of these two charges. The respondentrelies on Henare v R,9 Townshend v Ministry of Health,10 and Fox v Police,11 whereuplifts of four, six and nine months were respectively held to be appropriate for fewerdriving while disqualification charges. In this case the respondent notes that theappellant also has six previous unrelated driving convictions, including failing to stopwhen followed by red and blue flashing lights, dangerous driving and being a restricteddriver carrying unauthorized passengers. Although the Judge did not uplift thesentence, the respondent submits it would have been open to him to do so.[21] For these reasons, the respondent submits that the end sentence is within range.While the starting point for the excess breath alcohol offending is perhaps at the higherend of the usual range, the starting point for driving while suspended is much lowerthan in comparable cases, and there is no reason to impose a different end sentence.[22] With respect to the refusal to grant home detention, the Crown submits thatdeciding between imprisonment and home detention involves a discretionary exercisehaving regard to the principles and purposes of sentencing. On appeal, the focus is onidentification of an error, having regard to the discretionary nature of the decision.12Where a defendant is on the cusp of home detention, and there is no error, the Courtordinarily defers to the assessment of the sentencing Judge.13[23] Judge Garland was not satisfied that another sentence of home detention wouldhave any rehabilitative benefit. As such, only a sentence of imprisonment wassufficient to adequately meet the purposes and principles of sentencing. Therespondent submits that there is no identifiable error in Judge Garland's approach andthat it was open to him to decline to impose home detention.9 Henare v R [2017] NZHC 239710 Townshend v Ministry of Health [2017] NZHC 199311 Fox v Police [2017] NZHC 573.12 Doolan v R [2011] NZCA 54213 R v D [2008] NZCA 254 at [66], Otufangavalu v R [20101 NZCA 585 at [10].Analysis[24] Traditionally, sentencing judges dealing with breath/blood alcohol relatedoffending have referred to the judgment of Wild J in Clotworthy v Police, where theJudge reviewed a number of High Court and District Court decisions for the offenceof excess breath/blood alcohol (third or subsequent) and also identified a number ofaggravating and mitigating factors which may be relevant in assessing the startingpoint in each case. Clotworthy was considered by Whata J in Samson v Police. TheJudge commented as follows:[16] Seriously aggravating factors that appeared to resonate strongly in thesentencing process included a high level of intoxication, dangerousdriving, very close proximity in previous EBA offending, and/or aprolonged and continuous history of driving-related offending.Conversely, the following mitigating factors appeared significant interms of the length of end sentence and/or the type of sentence (e.g.home detention):(a) The absence of seriously aggravating factors;(b) High levels of remorse;(c) Genuine attempts to address the underlying causes of theoffending;(d) No previous sentence of imprisonment;(e) No previous sentence with a rehabilitative focus; and/or(f) Lengthy gaps between the current and prior offending.[25] Whata J also made some general observations about starting points as follows:[15] Unsurprisingly, sentencing for this type of offending is not amenableto tariff-like categorisation. But the resolution of [excess breathalcohol] (third and subsequent) appeals has become encumbered bynumerous and diverse responses to what, at first gloss, appear to besimilar fact offending. In order to make some sense of thejurisprudence, and with the assistance of counsel in this appeal and inBechan v Police, I have reviewed a number of authorities for thepurpose of identifying where the current offending might sit in thespectrum of cases that have come before this Court. As a result, I thinksome broad generalisations about starting points are supportable,namely:(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.[26] In this case the seriously aggravating factor is the high level of intoxicationwhile driving. The appellant was more than three times the legal limit for adults. Thiswas exacerbated by the fact he was on a zero alcohol licence at the time whichcomprised a separate charge. The history of six previous convictions is also anaggravating factor. A starting point was within the range of 12 to 18 months wasentirely warranted in these circumstances. I do not consider the 16 month startingpoint was too high.[27] The Judge then had to take account of the charges of driving while disqualifiedoffending and breach of community work. In my view, the total sentence on these twocharges was lenient having regard to the cases the respondent referred to.Furthermore, the appellant is incorrect to characterise the four month starting point asentirely a sentence for the breach of community work.[28] The Judge clearly differentiated between a one month starting point on thatcharge and a three month starting point when re-sentencing on the charge of drivingwhile disqualified.[29] Overall, I am satisfied that the end sentence is within range and it should notbe interfered with on appeal.[30] The high point of the appellant's submissions on the appeal against refusal togrant home detention was that the appellant "may have benefited from a rehabilitativesentence". No specific information was given to support this assertion. As alreadynoted, the Judge observed that the appellant had received three previous sentences ofhome detention, but this had not changed his behaviour. It is clear that the Judgeconsidered, but rejected home detention for this reason.[31] I can see no error in the Judge's reasoning and I decline to impose homedetention in lieu of a prison sentence.Conclusion[32] The appeal is dismissed.Solicitors:A M S Williams, Barrister, ChristchurchRaymond Donnelly & Co., Christchurch