Mason v New Zealand Police [2017] NZHC 126

Mason v New Zealand Police [2017] NZHC 126 [10 February 2017]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYCRI-2016-488-57[2017] NZHC 126BEREN BJON MASONvNEW ZEALAND POLICEHearing: 3 February 2017Counsel: AM Dooney for applicantJW Wall for CrownJudgment: 10 February 2017JUDGMENT OF FITZGERALD JThis judgment was delivered by me on 10 February 2017 at 4 pmpursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDateSolicitors: Crown Solicitor, WhangareiTo: AM Dooney, Barrister, WhangareiIntroduction[1] Mr Mason pleaded guilty to a charge under s 56(1) of the Land Transport Act1998 of driving with an excess breath alcohol ("EBA") level of 629 mcg/L of breath.This was Mr Mason's fourth drink-driving conviction.1 The charge has a maximumpenalty of two years' imprisonment or a fine of $6000, and a minimumdisqualification period of 12 months.2[2] Judge M J Hunt in the District Court at Whangarei sentenced Mr Mason tosix months' imprisonment, with post-release conditions of six months and a disqualification of 13 months.3[3] Mr Mason now appeals his sentence on the basis that, during the sentencing process, the Judge improperly applied an uplift for an EBA "infringement" whichoccurred subsequent to the index offending.Background[4] Mr Mason is a 33-year-old builder. On 26 February 2016, he was stopped by Police as he drove along Woodcocks Rd, Warkworth. A breath-alcohol test was administered. The subsequent evidential breath test recorded Mr Mason's breath- alcohol level to be 629 mcg/L of breath.[5] Mr Mason was sentenced nine months later, in November 2016. In the meantime, he received a fine for another EBA-related matter: on 26 March 2016, i.e. one month subsequent to the index offending, he was found to be driving with an alcohol level in excess of 250 mcg but less than 400 mcg, for which he received afine of $200 ("EBA infringement").4Prior offending[6] Mr Mason has three previous convictions for excess breath/blood alcohol offending:1 Though one conviction was for offending in 2003, when Mr Mason was under 20.2 Land Transport Act 1998, s 56(1) and 56(4).3 Police v Mason [2016] NZDC 24223.4 $200 being the prescribed penalty for this infringement offence; s 56(1A) of the Act.Offence Date Reading LTA Reference Penalty Imposed27 September2003 259 mcg/L breathSections 56(1) and11(c)(i): under 20 yearsof age$250 fine; threemonths'disqualification5 November200494 mg/100 mlblood Sections 56(1) and 11(b) $380 fine; 6 months'disqualification15 October 2008 563 mcg/L breathSections 56(1), 56(4)and 11(b): third orsubsequent400 hours' communitywork, 9 months'disqualification[7] He also has previous convictions for drug, property and violence-related offending, as well as multiple convictions between 2008 and 2012 for failing to comply with community work or intensive supervision conditions.5District Court decision[8] The Judge began by observing that Mr Mason had accrued at total of $3775.69 in fines and penalties, in respect of which Mr Mason had made few payments since March 2016. That included the $200 EBA infringement fine.[9] The Judge also set out Mr Mason's personal circumstances, including hisprevious convictions, the fact a home detention address was not available and the fact that Mr Mason had a history of non-compliance with community-based sentences. These matters led the Judge to conclude that a sentence of imprisonment was appropriate.[10] The Judge adopted a starting point of 6 months' imprisonment for the index offending. He then uplifted the starting point by two months for Mr Mason'ssubsequent EBA infringement, noting:5 I note the offending which attracted sentences of imprisonment is now quite historical, having occurred in the late 1990s.[18] I consider the subsequent events, the apprehension with an excess breath alcohol then to be an aggravating factor, and I add twomonths' imprisonment to reflect that.[11] He then applied a full 25 per cent discount for Mr Mason's guilty plea(despite stating that he was not totally convinced that Mr Mason had pleaded guiltyat the earliest opportunity), bringing the end sentence to six months' imprisonment.[12] Judge Hunt also imposed a 13-month disqualification and noted that Mr Mason would be subject to six months' post-release conditions. He remitted Mr Mason's fines, and also gave him leave to apply for home detention if a suitableaddress could be found.Appellant's submissions[13] Mr Dooney for the appellant submits that Judge Hunt erred by uplifting thestarting point by two months to reflect Mr Mason's subsequent EBA infringement.[14] In countering the "arguable" submission that s 9(4)(a) of the Sentencing Act2002 might have allowed the Judge to impose the uplift, Mr Dooney made the following points:(a) An EBA infrigment is not entered as a conviction.(b) An EBA infringement is dealt with by way of fine. Therefore, it could be said that the appellant is being punished twice for the offending.(c) The appellant is therefore effectively serving a term of imprisonment for a matter Parliament intended to be dealt with by a fine only.[15] Mr Dooney also provided the Court with a decision in which a sentence of one-month imprisonment for EBA (third or subsequent) was upheld on appeal.6However, as Mr Dooney properly acknowledged at the hearing, the decision is not relevant to the particular issues that arise in this appeal given that the decision did not address the starting point in that case.6 Shamim v Police [2016] NZHC 2334.Respondent's submissions[16] Mr Wall for the Crown submits the following in opposition to the appeal:(a) The uplift was not imposed simply in reference to the subsequentEBA infringement; it was a matter that informed the Judge'sunderstanding of the index offending. The appellant has therefore mischaracterised the basis for the uplift.(b) The Court is entitled to take into account subsequent offending in the course of sentencing an index offence.(c) Any claim of double punishment falls away when the uplift is viewedin light of the Judge's remission of Mr Mason's fines.(d) The end sentence was not manifestly excessive.Approach on appeal[17] Section 250(2) of the Criminal Procedure Act 2011 provides that the Court must allow an appeal against sentence if satisfied that:(a) for any reason, there is an error in the sentence imposed on conviction; and(b) a different sentence should be imposed.[18] In any other case, the Court must dismiss the appeal.7 Although s 250 makes no express reference to allowing appeals where the end sentence is "manifestly excessive", this principle is "well-engrained" in the Court's approach to sentence appeals.8[19] An appeal against sentence is an appeal against discretion. An appellate Court will not intervene where the end sentence is within the range that can properly be7 Criminal Procedure Act 2011, s 250(3).8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [33], [35].justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.9AnalysisWas there an error in the sentence imposed?[20] I do not accept Mr Wall's submission that the appellant has mischaracterised the basis for the two-month uplift. It is clear from the sentencing notes, particularly from the passage cited above at [10], that the Judge targeted the uplift directly at MrMason's subsequent EBA infringement and that the matter was treated as a discreteaggravating factor.[21] The question which follows is whether the Judge was correct to adjust Mr Mason's starting point in this way.[22] Mr Wall drew my attention to the Court of Appeal's decision R v Barrett, which considered a similar issue.10 In that case, the offender had been sentenced totwo years' imprisonment for indecently assaulting a young girl. The offending was not reported to the Police until some time later and, in the intervening period, the offender committed, was convicted, and was sentenced in respect of a second indecent assault. When sentencing the offender on the earlier indecent assault, the Judge referred to the second offence, noting that there "may be a tendency to a pattern that should be corrected."11 The offender appealed against this on the grounds that the Judge was in error to do so.[23] Thomas J for the Court of Appeal held that the sentencing Judge was not in error in referencing the second offence given its proximity of time to the first offence (less than 12 months). The relevance of the subsequent offending was explained as follows: 129 Ripia v R [2011] NZCA 101 at [15].10 R v Barrett [1999] 1 NZLR 146 (CA).11 At 148.12 At 150.The latter offending tends to convert the nature of the earlier offence from an isolated incident and make it part of a trend or pattern of offending. Thus, it would not be open to the offender to advance the plea that it was a single or isolated incident, or that he enjoyed an impeccable and untarnished character, or that the offence was an aberration and unlikely to happen again. It would seem certain that the offender cannot obtain credit for a number of the pleas which are usually advanced or the assumptions which are generally made in respect of first offenders.[24] Thomas J also said it was inappropriate to disregard subsequent offences in cases where the delay in detecting or prosecuting the first offence was caused orcontributed to by the offender's own deliberate actions.13 The Court accordingly upheld the sentence on appeal.[25] In Allen v Police, the High Court considered R v Barrett in the context of theTaueki "staged approach" to sentencing.14 In a sentence appeal involving drink- driving-related offending, Venning J accepted that the general principles fromBarrett continued to apply, but went on to observe:[27] When the Judge referred to aggravating features he referred to the drunk driving before and after the event. On the authorities, while the Judge could properly have regard to the offending after the event as part of an ongoing course of action by the appellant, the Judge should not have taken that offending into account as a specificaggravating feature [26] Despite this, Venning J held that the end sentence was "unimpeachable" andso dismissed the appeal.15[27] In the present case, the Judge did not rely on the subsequent EBA infringement to negate a plea of good character or a plea that the offending wasisolated. Nor was prosecution or detection of Mr Mason's initial offending precluded by a denial of any sort by Mr Mason. It seems there were some delays in sentencing, which the Judge refers to at [2] to [5], though not of the type contemplated in R v Barrett and referred to at [24] above.13 At 151.14 Allen v Police HC Hamilton CRI-2006-419-105, 6 September 2006; R v Taueki [2005] 3 NZLR 372 (CA).15 At [27]-[28].[28] In view of this and Venning J's approach in Allen (with which I agree), Iaccept Mr Dooney's submission that the Judge was wrong to impose a two-month uplift specifically in respect of the subsequent EBA infringement. The uplift comprised one third of the starting point for the index offending (i.e. before thediscount for Mr Mason's guilty plea was taken into account), in respect of an offencecarried that carried a $200 fine as its prescribed penalty.16[29] I therefore consider that the uplift was made under an error of principle.Should a different sentence be imposed?[30] I now turn to consider whether a different sentence should be imposed. In doing so, I have considered the aggravating and mitigating factors for EBA offending set out by Wild J in Clotworthy v Police.17[31] In this case:(a) Mr Mason's breath level was moderate;(b) It had been more than seven years since Mr Mason's previous conviction for EBA offending;(c) Mr Mason pleaded guilty at an early stage;(d) Mr Mason had not previously received a sentence of imprisonment for EBA offending;(e) Mr Mason shows some remorse, but it seems more in relation to the circumstances in which he now finds himself, rather than the real risk he poses to other drivers when he drinks and drives; and16 Land Transport (Offences and Penalties) Regulations 1999, sch 1.17 Clotworthy v Police (2003) 20 CRNZ 439 (HC) at [20].(f) Mr Mason has a reasonably significant number of prior convictions, though no sentences of imprisonment since the late 1990s (when he was under 20 years old).[32] I also note that Judge Hunt remitted Mr Mason's outstanding fines of$3775.69 (which included the $200 EBA infringement fine).[33] When considered overall, I consider that the Clotworthy factors indicate thatMr Mason's offending was moderately serious.[34] I have considered a number of authorities involving sentences for similar EBA (third or subsequent) offending:(a) In Samson v Police, Whata J reviewed a range of EBA decisions.18He concluded that starting points of between nine and 12 months' imprisonment are generally imposed in cases involving "no seriously or only moderately aggravating factors" in terms of Clotworthy.19(b) In Rangitonga v Police, Dobson J upheld a starting point of eightmonths' imprisonment.20 It was the defendant's fourth drink-driving conviction, the reading was 613 mcg/L of breath, and the offendingoccurred shortly after the defendant's third conviction.(c) In Fonoti v Police, the District Court Judge had adopted a startingpoint of nine months' imprisonment.21 It was the offender's sixthEBA conviction, with the most recent having occurred around six years prior. The reading was 778 mcg/L of breath. On appeal, Muir J accepted the starting point was acceptable, albeit at the upper end of the available range.18 Samson v Police [2015] NZHC 748.19 At [20].20 Rangitonga v Police [2014] NZHC 2323.21 Fonoti v Police [2015] NZHC 200.(d) In Pitman v Police, the offender's breath alcohol reading, on hisfourth drink-driving conviction, was 625 mcg/L.22 The District Court Judge had adopted a starting point of nine months' imprisonment,reduced to seven months in light of his guilty plea. On appeal, Fogarty J held that the length of the sentence could not be justified having regard to Clotworthy and previous High Court decisions. The end sentence was reduced to four months' imprisonment, although thealternative starting point was not expressly stated.(e) Mokotupu v Police involved an offender who was sentenced to 6 months' imprisonment after pleading guilty to her fifth EBAconviction.23 Her reading was 775 mcg/L of breath. Chisholm J refused to interfere with the sentence on appeal, noting that theoffender's alcohol level was nearly twice the legal limit, that she had reoffended a relatively short time after her fourth conviction, and that her grandchildren were in the car.(f) In Ngatikai v Police, the sentencing judge adopted a starting point ofeight to nine months' imprisonment on a fourth EBA conviction.24The EBA conviction was the offender's fourth in four years, herreading was 899 mcg/L, and her driving on the night involved swerving in lanes. On appeal, Wylie J considered the starting point to be within range and available on accepted sentencing principles.[35] Standing back and looking at the aggravating and mitigating factors of Mr Mason's offending and the comparable cases, an appropriate starting point wouldappear to be somewhere between six and seven months' imprisonment. When this is reduced in light of a full discount for Mr Mason's guilty plea (which the Judge gave,despite, as noted, being unconvinced that Mr Mason's plea was entered at the firstavailable instance), it results in an end-sentence range of around four-and-a-halfmonths to just over five months' imprisonment.22 Pitman v Police [2015] NZHC 205.23 Mokotupu v Police HC Christchurch CRI-2009-409-19, 19 February 2009.24 Ngatikai v Police [2014] NZHC 3294.[36] When this is compared with Mr Mason's actual sentence of six months'imprisonment, it appears that Mr Mason's case is at the upper end of the availablerange. However, I am not persuaded that the sentence is manifestly excessive. Tointerfere would involve "tinkering" with the sentence. At the conclusion of the hearing, Mr Dooney also responsibly accepted that the sentence was within the range available to the Judge.[37] For these reasons the appeal is dismissed.____________________Fitzgerald J