PRASAD v NEW ZEALAND POLICE [2018] NZHC 537

PRASAD v NEW ZEALAND POLICE [2018] NZHC 537 [26 March 2018]IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYI TE KŌTI MATUA O AOTEAROAŌTEPOTI ROHECRI-2017-412-57[2018] NZHC 537BETWEEN BIJAY JAGDISH PRASADAppellantAND NEW ZEALAND POLICERespondentHearing: 23 March 2018Appearances: D L Henderson for AppellantR D Smith for RespondentJudgment: 26 March 2018JUDGMENT OF MANDER J[1] The appellant, Mr Bijay Prasad, was sentenced to 22 months' imprisonment oncharges of driving with excess breath alcohol (EBA), being his third or subsequentoffence, driving whilst disqualified, reckless driving, and failing to stop.1 He appealsthe sentence on the grounds the starting point adopted by the sentencing Judge wastoo high and that his offending history was double-counted.Background[2] On 12 November 2017, an unmarked police car sought to stop Mr Prasad'svehicle by activating its siren. Mr Prasad did not stop. He accelerated away, reachingspeeds of around 80 kilometres per hour in a 50 kilometre per hour area. He continuedto drive at speed through some of the main streets of South Dunedin, including throughan intersection where other vehicles were waiting in front of him. He drove througha red light at around 10-20 kilometres per hour and reached a speed of 100 kilometres1 Police v Prasad [2017] NZDC 26526.per hour in a 60 kilometres per hour area. At one point, he drove the wrong way up aone-way street at an estimated speed of 60 kilometres per hour.[3] Mr Prasad managed to temporarily evade the police by stopping his vehicle ina driveway of an unknown house before using a taxi to get to his house. There, he waslocated by the police hiding in a bedroom. Evidential breath testing proceduresrevealed an excess breath alcohol level of 795 micrograms of alcohol per litre ofbreath.District Court decision[4] In sentencing Mr Prasad, Judge Strettell noted his extensive history of similaroffending, which included seven convictions for excess breath/blood alcohol between2008 and 2017, with his most recent convictions being in May 2017. The Judge alsoobserved that Mr Prasad had 11 other driving-related offences, including recklessdriving, careless driving, failing to stop and refusing to provide blood samples, inaddition to previous convictions for breaches of sentences and release conditions.[5] Because of Mr Prasad's recidivism and his failure to respond to previousopportunities provided to him to address his alcohol issues, Judge Strettell consideredthe key sentencing principles were deterrence, denunciation, and protection of thepublic. The Judge observed there were a number of serious aggravating features: thehigh level of intoxication; the driving conduct; the close proximity of previous EBAoffending; and what Judge Strettell described as Mr Prasad's "prolonged andcontinuous history of similar offending".[6] Judge Strettell considered the combination of Mr Prasad's consistentreoffending and the nature of the aggravating features placed his present offendinginto the category of the worst kind. At Mr Prasad's most recent previous appearance,he was sentenced to 17 months' imprisonment on two EBA charges based on a startingpoint of 20 months' imprisonment.[7] Judge Strettell took as a starting point the maximum sentence of two years'imprisonment. He applied an uplift of three months in recognition of the other charges,and a further three months for Mr Prasad's "previous history of like offending". A fulldiscount was afforded for Mr Prasad's guilty pleas, which resulted in a final sentenceof 22 months' imprisonment. Periods of disqualification, in respect of which there isno complaint, were also imposed.The appeal[8] Mr Prasad brings his appeal on the basis the starting point of two years'imprisonment adopted by Judge Strettell was too high, and that the Judge double-counted his criminal history.Starting point[9] Mrs Henderson, on behalf of Mr Prasad, submitted that Judge Strettell, intaking the maximum starting point of two years' imprisonment, erroneously concludedthat the offending was of the most serious kind and this resulted in a manifestlyexcessive sentence.[10] Section 8(c) of the Sentencing Act 2002 (the Act) requires a sentencing Courtto impose the maximum penalty if the offending is "within the most serious of cases"for which the penalty is prescribed, unless the circumstances relating to the offendermake that inappropriate. Similarly, and subject to that caveat, the Court is required toimpose a penalty near to the maximum prescribed for the offence if the offending isnear to the most serious of cases for which the penalty is prescribed.2[11] Counsel accepted that when assessing the seriousness of the offending it isappropriate to consider the aggravating factors set out in Clotworthy v Police andSamson v Police, as Judge Strettell did in the present case.3 Mrs Henderson submittedthat while there were multiple aggravating factors present, they did not cumulativelyresult in Mr Prasad's offending falling into the most serious category of offending ofits kind. In Mrs Henderson's submission, based on the Samson analysis, a startingpoint of between 18-20 months only would have been justified.2 Sentencing Act 2002, s 8(d).3 Clotworthy v Police (2003) 20 CRNZ 439 (HC); Samson v Police [2015] NZHC 748.[12] In Samson, Whata J, after reviewing a number of authorities, made somegeneralisations about starting points, observing that for multiple offences with seriousaggravating factors starting points of between 18-20 months were appropriate. Wherevery serious aggravating factors constituting offending of the worst kind were presentstarting points between 20-24 months could be expected.[13] Mrs Henderson submitted that Mr Prasad's level of 795 micrograms could notbe considered a high level, being more of a moderate reading which did not qualify asa seriously aggravating factor. It was acknowledged that Mr Prasad's driving wasdangerous and that his offending came in close proximity to his previous EBAoffending, which was set against a history of driving-related offences accumulatedsince his first EBA conviction in 2008. However, Mrs Henderson submitted that theseaggravating factors did not fall into the "seriously aggravating category".[14] In regard to the breath alcohol level which was contended for as beingmoderate, the observation of Heath J in Wilson v Police is apposite.4The worst cases of their kind do not necessarily involve individual cases ofhigh proportions of alcohol to blood or to breath. The concept is equally aptto deal with an offender who is a recidivist and often comes before the Courtwith high blood alcohol or breath alcohol levels. At some point, the issue ofdeterrence must take centre stage...In McKinlay v Police, Panckhurst J similarly observed that the worst cases of theirkind need not necessarily involve extreme readings: "... there may come a point atwhich recidivism and a moderate to high alcohol level is sufficient to place a casewithin the most serious of its kind".5[15] Mrs Henderson took me to a number of cases which, in her submission,supported a lower starting point. In Kucenko v Police, a starting point of 20 monthswas applied when the appellant had accumulated 10 drink-driving convictions over 40years.6 In that case, the appellant had a blood alcohol level of 252 millilitres of alcoholper 100 millilitres of blood, and his driving was described as "concerning". However,there had been a six year' gap since his last conviction.4 Wilson v Police HC Rotorua CRI-2005-463-81, 2 December 2005 at [52].5 McKinlay v Police HC Christchurch CRI-2006-409-116, 7 August 2006 at [18].6 Kucenko v Police [2012] NZHC 3398.[16] Mrs Henderson also referred to Tutahi v Police where a starting point of 12months' imprisonment was applied.7 The appellant had a reading of 1,126 microgramsof alcohol per litre of breath and seven previous EBA convictions, the most recentbeing a year before. She was unlicensed at the time of the offending. Mrs Hendersonemphasised the comparable number of previous EBA convictions, the presence of arecent conviction, and unlicensed/disqualified driving. A distinguishing feature,however, is the absence of dangerous or reckless driving which accompaniedMr Prasad's offending.[17] Mr Smith, on behalf of the Police, drew my attention to Hokianga v Police,which he submitted was very similar to the circumstance of the present offending.8 Inthat case, the appellant was sentenced on the same four charges that Mr Prasad faced.The appellant was signalled to stop by police, but instead accelerated and drove atgrossly excessive speeds through a township before abandoning his vehicle in thegrounds of a primary school. When apprehended, he returned a breath alcohol readingof 753 micrograms of alcohol per litre of breath. He had six previous convictions fordriving whilst disqualified and three previous convictions for alcohol-related offences.It is not clear from the judgment what starting point was taken by the appellate Court,however, a full discount for guilty pleas resulted in a total end sentence of 21 months.[18] In Wilson v Police, a two year starting point was upheld on appeal.9 Theoffender had a reading of 258 micrograms of alcohol per 100 millilitres of blood. Hehad 10 previous EBA convictions, although the most recent was some five yearsprevious. Wilson is a case of similar seriousness to the present. While the appellanthad a higher alcohol reading, there was a much larger gap between the offending forwhich he was before the Court and his earlier most recent conviction. Furthermore,the present incident involves reckless driving.[19] In an effort to distinguish Wilson, Mrs Henderson submitted that Mr Prasad'scase is less serious because he co-operated with police, expressed remorse, and pledguilty early. Those factors relied upon to distinguish the case are not persuasive. I do7 Tutahi v Police [2014] NZHC 3354.8 Hokianga v Police [2013] NZHC 1355.9 Wilson v Police, above n 4.not consider Mr Prasad has shown any real remorse for his offending which wouldwarrant a specific deduction, and there was no complaint of any failure by the Judgeto provide a discrete credit for such a personal mitigating circumstance. WhileMr Prasad may have ultimately admitted his offending, that pales when regard is hadto his concerted and reckless efforts to avoid apprehension. Mr Prasad's guilty pleawas taken into account at a later stage of the sentencing exercise.[20] Finally, in Jenner v Police, Dunningham J allowed an appeal against a twoyear' starting point.10 The appellant had a reading of 268 micrograms of alcohol perlitre of blood and 10 previous EBA convictions. However, the most recent convictionwas six years prior and he had only one other EBA conviction within the previous 10years. The Crown accepted the factual circumstances of the case did not place theoffending within the most serious category of its type. Dunningham J considered astarting point of 19 months was sufficient because of the significant gaps in theappellant's offending history and the lack of any associated driving fault.[21] Inevitably, there will be variations in the approaches taken by sentencingCourts depending upon the individual circumstances of the particular case. Thedifficulty for Mr Prasad in arguing the starting point was too high is that, realistically,all the seriously aggravating factors referred to in Clotworthy and Samson are present.He had a high level of intoxication, being almost twice the legal limit. Although thisis not as high as in some other cases, that must be set against his recidivism.Mr Prasad's present offending was accompanied by an extended period of recklessdriving which involved excessive speed and the running of a red light in order to eludechasing police. His driving endangered the safety of the public. Mr Prasad was adisqualified driver. His offending came within six months of his most recent EBAconvictions and he has a prolonged and continuous history of poor driving-relatedoffending marked by the consumption of alcohol.[22] As was stressed by Mr Smith, Mr Prasad has now, since 2010, been involvedin four alcohol-affected police pursuits when his driving has been either been culpablycareless, dangerous, or reckless. The repetition of excess alcohol offending marked10 Jenner v Police [2017] NZHC 3031.by the presence of serious aggravating features unavoidably places Mr Prasad'sconduct into the most serious of its kind. The maximum penalty prescribed for theoffence, at least as a starting point, was therefore available to the sentencing Court.Double-counting for previous convictions[23] Mrs Henderson submitted that Judge Strettell took into account Mr Prasad'scriminal history when arriving at his starting point of 24 months' imprisonment. Byapplying an uplift of three months' imprisonment as a personal aggravating factor forMr Prasad's "previous history of like offending", it was submitted the Judge had"double-counted" this factor.[24] Mr Smith submitted the three month' uplift was available to the sentencingJudge in order to take into account the other offences that made up Mr Prasad'scriminal history, over and above the excess breath alcohol offences which reflected hispast poor driving behaviour. Mr Prasad's history of being involved in alcohol-affectedpolice pursuits on previous occasions was emphasised. However, that background hadalready been taken into account as part of the assessment of the seriousness ofMr Prasad's recidivism when determining the appropriate starting point.[25] I consider the sentencing Judge did fall into error in applying a discrete upliftwhich was tagged to Mr Prasad's previous history of "like offending". Taking intoaccount an offender's relevant previous history as a personal aggravating factor isordinarily an orthodox adjustment made after determining the original starting point.However, in alcohol-related driving cases of this kind, where an offender's previousrecord is one of the primary factors to be taken into account in establishing theseriousness of the particular offence for the purpose of fixing a starting point, there isa risk of double-counting. In the present case, the sentencing Judge did not link theuplift to any other different type of offending which may have been thought relevantto determine the overall sentence.[26] The focus on a sentence appeal must be on the ultimate sentence imposedrather than how it is achieved. Even where an error in the sentence imposed has beenidentified, the appeal Court must be satisfied that a different sentence should beimposed in order to disturb the original sentence.11 If the sentence imposed is withinthe range that can properly be justified by accepted sentencing principles, the appealCourt will not intervene.12 The key issue is whether the overall sentence imposed wasmanifestly excessive.[27] Mr Smith, relying on Hokianga, to which I have earlier referred, submitted theoverall sentence of one year and 10 months' imprisonment imposed in the present casealigns with the effective sentence of one year and nine months' imprisonment imposedin that case for offending committed in similar circumstances as the present, andimposed on a defendant with a similar history of offending. In further support of thesubmission that the sentence fell within the available range, he noted Mr Prasad'soffending was committed whilst he was on release conditions in respect of the sentenceof one year and five months' imprisonment imposed in May last year. Mr Smithsubmitted that factor by itself could have justified a higher sentence. No discrete upliftwas applied to take into account that aggravating feature.[28] While acknowledging that an error was made by the sentencing Judge inuplifting the sentence by three months, I do not consider the ultimate sentence arrivedat of 22 months' imprisonment falls outside the range of sentence which this type ofserious recidivist offending can be expected to attract. After allowance for the guiltyplea credit, the sentence imposed by the District Court would be adjusted by twomonths. Had that modification been required to ensure the sentence was notmanifestly excessive, it would have been made, but in the event, it arguably amountsto tinkering.Result[29] Having concluded the 22 month sentence of imprisonment imposed by JudgeStrettell was within the range available to him, the appeal is dismissed.Solicitors:Deborah Henderson, Barrister, Dunedin11 Criminal Procedure Act 2011, s 250(2).12 Tutakangahau v R [2014] NZCA 279.RPB Law, Dunedin