HART v NZ POLICE [2019] NZHC 1190

HART v NZ POLICE [2019] NZHC 1190 [28 May 2019]IN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYI TE KŌTI MATUA O AOTEAROAAHURIRI ROHECRI 2019-441-19[2019] NZHC 1190BETWEEN BRIAN MITCHELL HARTAppellantAND NEW ZEALAND POLICERespondentHearing: 28 May 2019Counsel: S J Fraser for AppellantC R Stuart for RespondentJudgment: 28 May 2019JUDGMENT OF ELLIS J[1] On 7 March 2019 Mr Hart was sentenced to 12 months' imprisonment on onecharge of doing an indecent act in public1 and one charge of refusing to give a bloodspecimen2 by Judge Mackintosh in the Hastings District Court.3 He was alsodisqualified from driving for 12 months.[2] Mr Hart sought to appeal his sentence on the grounds it was manifestlyexcessive because the Judge erred by:(a) failing to consider an alcohol interlock sentence; and1 Crimes Act 1961, s 125(1) [maximum penalty of two years' imprisonment].2 Land Transport Act 1998, ss 60(1)(a) and 60(3) [maximum penalty of two years' imprisonment ora fine not exceeding $6,000].3 Police v Hart [2019] NZDC 4114.(b) relying on an erroneous assertion in the pre-sentence report thatMr Hart had previously received, and had failed to engage with,rehabilitative sentences.[3] At the hearing of the appeal, the former ground was abandoned by Mr Fraser.In my view he was right to do so. Mr Hart does not qualify for such a sentence becausehe last drink driving conviction was (a little) over five years ago and because he cannotbe shown to have the requisite blood alcohol reading (because he refused to give aspecimen). Moreover, the making of an alcohol interlock order does not preclude asentence of imprisonment.4[4] I also record at the outset that the appeal was filed late. Mr Fraser advises thatthis was because Mr Hart could not find a lawyer willing to represent him on theappeal. The Crown did not indicate opposition to an extension of time and I grant itaccordingly.BackgroundThe driving charge[5] At 10:45 pm on 11 October 2018 Mr Hart was driving his car in Napier. Heparked on a road near an intersection. He was standing by his car when the policearrived. He admitted to having driven the car. The police report records that Mr Hartsmelled of alcohol and the officers could see a cask of wine in his car. The policeasked him to "undergo alcohol/blood procedures" but he refused. He agreed toaccompany the police to the station to give a breath or blood test. However, at thestation he refused all officer requests for a blood or breath sample.[6] When asked to explain his offending Mr Hart said he had not been drivingwhen the police attended. But at the first case review hearing he pleaded guilty to thecharge.4 Land Transport Act, s 65AH(1).The indecency charge[7] At around 11 am on 9 February 2019, Mr Hart and his partner were inside theporch of a church in Hastings. It was a Saturday. They had entirely removed thebottom half of their clothing and were having sexual intercourse.[8] The porch was visible from the road and from a school across the road fromthe Church. It seems that the principal of the school saw them and called the police.He confronted the couple and asked them to leave. He became angry and verballyabusive. The pair left.[9] The police found Mr Hart a short time later. He was having sexual intercoursewith his partner in the public toilets at a park. Mr Hart admitted the facts as outlined.His explanation was that he was from Wellington and had nowhere else to have sexwith his partner.5[10] Mr Hart pleaded guilty at the earliest opportunity to this charge.The sentencing[11] Mr Hart came up for sentence on 7 March 2019. The drunk driving was treatedas the lead charge. Mr Hart has 21 similar previous convictions spanning the last35 years, although none since 2013. He has a raft of other low level convictions aswell.[12] After referring to Mr Hart's relevant conviction history, the Judge noted thatMr Hart had what was described as a "tumultuous upbringing" and lived a transientlife style.6 She indicated that the pre-sentence report before the Court indicated thatMr Hart had "not really engaged in any rehabilitative programmes that have beenoffered in the past" because he simply refused to engage, making them a waste oftime.75 It seems Mr Hart's partner was not charged.6 Police v Hart, above n 3, at [4].7 At [5].[13] The Judge referred to the decision of Skudder v Police in setting the startingpoint for the lead offence of refusing to give a blood specimen.8 In light of the numberof Mr Hart's prior convictions a starting point of 15 months' imprisonment wasadopted. The Judge uplifted the sentence by three months' imprisonment on accountof the indecency charge, giving a combined starting point of 18 months' imprisonment.[14] The Judge then said she would discount that by 20 per cent to account forMr Hart's guilty plea. This would have taken the sentence to near 14 months'imprisonment. It appears there may have been a calculation error benefitting Mr Hart,however, as the final sentence was discounted by 33 per cent. The final sentenceadopted by the Judge was 12 months' imprisonment. He was disqualified from drivingfor one year and one day.[15] This final sentence was, in fact two months' shy of the sentence advocated byMr Hart's own counsel although he had advised the court that he was "stronglyinstructed" by Mr Hart that the appropriate sentence was one of community work.Approach on appeal[16] Mr Hart has brought his appeal under s 250 of the Criminal Procedure Act2011. An appeal against sentence is an appeal against a discretion and must only beallowed if the Court is satisfied that there has been (for any reason) an intrinsic errorin the sentence imposed and that a different sentence should be imposed.9 The focusis on the final sentence and whether that was in the available range, rather than theexact process by which it was reached.10Discussion[17] As noted earlier the "alcohol interlock" aspect of the appeal was abandoned byMr Fraser at the hearing and so I do not consider it further.8 Skudder v Police [2018] NZHC 1448.9 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.10 Ripia v R [2011] NZCA 101 at [15].[18] As far as the pre-sentence report ground of appeal is concerned, the reportwriter recorded that she had interviewed Mr Hart by telephone but he had beendistracted and unable to meaningfully engage.11 She advised:Mr Hart has received a number of community based sentences and eventhough he attended sporadically to his reporting, these meetings were notfruitful with Mr Hart either terminating the report in or relaying to hisProbation Officer that he did not need help. Mr Hart has not previouslyengaged in any rehabilitative programmes as a result of this limitedengagement. As Mr Hart's risk is assessed as high, he will meet the criteriato meet with a departmental Psychologist, should he be given releaseconditions, however given his current history, there is high likelihood that hewill refuse to engage.[19] This passage was plainly the foundation for the passage from the Judge'ssentencing notes to which I have referred at [12] above.[20] Mr Fraser's argument was that this statement was inaccurate and unfair. Moreparticularly, he said that Mr Hart:(a) has received 19 (more than "a number") of community-based sentencesbefore and there is nothing in his criminal history to suggestnon-compliance with those; and(b) has received only three sentences of supervision and has never receiveda "community-based sentence" in any rehabilitative sense.[21] I am not, however, inclined to accept that the report is obviously wrong ormisleading. Even Mr Hart's latest dealings with the authorities suggest complianceproblems. For example, he failed to appear several times on the excess breath alcohol(EBA) charge and warrants for his arrest were issued. Moreover, I accept Mr Stuart'ssubmission that such reports are not solely based on an offender's conviction historybut include a review of Corrections' files, which may well have formed the basis forthe report writer's views. And regrettably, Mr Hart's apparent inability to engage withthe report writer does not assist him.11 Mr Hart was in custody at the time and apparently very focussed on getting married to his newpartner.[22] But Mr Fraser also pointed out that Mr Hart was successful in having anindefinite disqualification imposed in 2014 removed in 2016 after satisfactorilycompleting an Alcohol and Drug assessment. He advised from the bar that suchassessments are rigorous and so Mr Hart's success should be regarded as indicative ofa genuine turn around in his earlier propensity to drive after drinking in the five yearsbetween his last EBA conviction and the present. Mr Fraser's submission derivessome support from the terms of s 100 of the Land Transport Act 1998 (LTA), whichprovides that before an order removing an indefinite disqualification can be made theLand Transport Agency must be satisfied that—(a) the applicant is a fit person to hold a driver licence, having regard to—(i) a report which is from a health practitioner attached to anassessment centre and which is made available to the Agencyby the applicant or the assessment centre; and(ii) any other evidence submitted by the applicant or otherwiseavailable to the Agency relating to the medical condition ofthe applicant.[23] Mr Fraser submitted that this five year period was particularly relevant in termsof the factors identified as relevant to sentencing multiple EBA offenders decisions byWild J in Clotworthy v Police.12 Those factors are:13[a] The breath or blood alcohol level.[b] The length of time that had elapsed since the last drink drivingconviction (in this respect the five year period referred to in s 65(2)(b)of the Land Transport Act 1998 is perhaps of significance).[c] Conviction for two or more drink driving offences in close succession.[d] The manner of driving: innocuous or dangerous; accident and injuryresulting or neither? Sometimes this manifests itself in an additionalcharge(s).[e] Whether the offender was disqualified or forbidden from driving atthe time (as to the latter, note the mandatory 28 day suspension periodreferred to in s 95 Land Transport Act 1998).[f] The plea(s) and, if guilty, whether that plea was entered at any earlystage or only belatedly.12 Clotworthy v Police (2003) 20 CRNZ 439 (HC).13 At [20].[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 ofoffending.[i] Any genuine remorse shown and/or willingness on the part of theoffender to confront his/her contributing alcohol and/or personalproblems.[j] Any mitigating personal or family circumstances contributing to theoffending.[24] It will be observed that the length of time since Mr Hart's last EBA convictionis potentially relevant to factors [b], [c] and [g].[25] While Clotworthy was not referred to by Judge Mackintosh, the decision inSkudder v R was. And in that decision, after noting that Clotworthy remained theorthodox starting point and listing the 10 factors, Wylie J said:14[20] Clotworthy was considered by Whata J in Samson v Police. The Judgecommented as follows:[14] I regard items [a] – [e] as aggravating factors for the purposeof assessing the start point for the offending, while [g] and [h]are relevant to uplift for aggravating personal circumstances.Items [f] and [i] – [j] are mitigating factors.[16] Seriously aggravating factors that appeared to resonatestrongly in the sentencing process included a high level ofintoxication, dangerous driving, very close proximity inprevious EBA offending, and/or a prolonged and continuoushistory of driving-related offending. Conversely, thefollowing mitigating factors appeared significant in terms ofthe 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 ofthe offending;(d) No previous sentence of imprisonment;14 Skudder v Police, above n 8, at [20] citing Samson v Police [2015] NZHC 748 at [14] – [16].(e) No previous sentence with a rehabilitative focus;and/or(f) Lengthy gaps between the current and prioroffending.(Citations omitted)[21] Whata J also made some general observations about starting points asfollows:[15] Unsurprisingly, sentencing for this type of offending is notamenable to tariff-like categorisation. But the resolution of[excess breath alcohol] (third and subsequent) appeals hasbecome encumbered by numerous and diverse responses towhat, at first gloss, appear to be similar fact offending. Inorder to make some sense of the jurisprudence, and with theassistance of counsel in this appeal and in Bechan v Police, Ihave reviewed a number of authorities for the purpose ofidentifying where the current offending might sit in thespectrum of cases that have come before this Court. As aresult, I think some broad generalisations about starting pointsare 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 aggravatingfactors (i.e. offending of the worst kind),20-24 months.(Citations omitted)[26] Applying that analysis to Mr Hart's case (as I suspect the Judge herself did) itmay be observed that:(a) Mr Hart's level of intoxication is not known because he refused to givea blood sample;(b) there was no evidence of dangerous driving;(c) Mr Hart was not disqualified at the time;(d) there is a gap of (just) over five years since his previous EBA offending;and(e) Mr Hart nonetheless has a prolonged (if not wholly continuous) historyof driving-related offending.[27] It is this last factor that puts Mr Hart squarely within the second of Whata J'scategories. Accordingly, the starting point was plainly well within range. As notedearlier, the guilty plea discount was generous. As Mr Hart's counsel in the DistrictCourt recognised, a community-based sentence would not have been in line with othercases of this kind.[28] Although I am not unsympathetic to Mr Hart and his circumstances, which areclearly difficult, I am unable to discern any error in the Judge's approach. The endsentence was, if anything, generous given the error in the guilty plea discount and theadditional and separate indecency charge. There is no scope for appealing thedisqualification or its length, which was mandatory under s 56(4) of the LTA.Conclusion[29] The appeal is dismissed.____________________________Rebecca Ellis J