LETHAM v NEW ZEALAND POLICE [2022] NZHC 1514

LETHAM v NEW ZEALAND POLICE [2022] NZHC 1514 [28 June 2022]IN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYI TE KŌTI MATUA O AOTEAROAAHURIRI ROHECRI-2022-441-09[2022] NZHC 1514BETWEEN BRODIE JAMES LETHAMAppellantAND NEW ZEALAND POLICERespondentHearing: 28 June 2022Appearances: J R Te Puke-Cowperthwaite for the AppellamtB L McKenzie for the RespondentJudgment: 28 June 2022ORAL JUDGMENT OF PALMER JSolicitorsPublic Defence Service, NapierElvidge & Partners, NapierWhat happened?[1] Around 6.50 pm on 14 January 2022, Mr Brodie Letham, aged 36, was foundasleep in the driver's seat of his car on a road in Flaxmere, with the engine running.When Police managed to wake him, he admitted to having had a few drinks. Hisevidential breath test (EBT) gave a reading of 1,146 micrograms of alcohol per litreof breath, almost three times the legal limit of 400 micrograms. Around 2.45 pm on19 February 2022, following up on complaints of erratic driving at excessive speeds,the Police administered another EBT to Mr Letham which gave a reading of 1,313micrograms of alcohol per litre of breath. Mr Letham has three previous convictionsfor drink-driving, in 2004, 2008 and 2017. The 2017 offending involved a reading of1,314 micrograms.[2] On 29 March 2022, Judge P W Cooper in the District Court at Hastingssentenced Mr Letham for two charges of driving with excess breath alcohol for a thirdor subsequent offence.1 That is punishable by up to two years' imprisonment or a$6,000 fine. The Judge took 20 months' imprisonment as the starting point, gave a25 per cent discount for Mr Letham's guilty plea and a further five per cent discountfor a head injury Mr Letham had previously suffered that inhibits impulse control.2On the basis of Mr Letham's high alcohol readings, lack of insight, offending whileon remand, and his previous history, the Judge did not think home detention wasappropriate.3 So he sentenced Mr Letham to 14 months' imprisonment, required himto undertake treatment for his alcohol issues, to undertake any counselling orprogrammes required by the probation officer and disqualified him from drivingindefinitely. Mr Letham appeals.Submissions[3] Counsel for Mr Letham and the Crown both rely on Whata J's judgment inSamson v Police, which set out a schedule of starting points for such cases.41 Police v Leatham [2022] NZDC 5394.2 At [7]–[8].3 At [9].4 Samson v Police [2015] NZHC 748.[4] Ms Te Puke-Cowperthwaite, for Mr Letham, submits the Judge erred by settingthe starting point too high, not providing sufficient discounts for rehabilitation,remorse and personal circumstances, not commuting the sentence to home detentionand disqualifying Mr Letham indefinitely rather than imposing an alcohol interlockorder. She submits a starting point of 12 months would have been appropriate, adiscount of 10 per cent for voluntary engagement in rehabilitation programmes and afurther 10 per cent for remorse was justified. She submits that the pre-sentence reportbefore the District Court did not properly capture Mr Letham's rehabilitationwillingness or remorse. She provides medical notes that were not before the DistrictCourt, from 2002, which demonstrates, she says, he has a lack of insight which goesto home detention being an appropriate sentence. He is struggling in prison. Shesuggests a discount, for the brain injury materially contributing to the offending, of 20to 30 per cent. Ms Te Puke-Cowperthwaite submits the sentence of 14 months'imprisonment was manifestly excessive.[5] The pre-sentence report noted Mr Letham had not engaged in drug and alcoholcounselling and did not seem to understand the impact of his offending on others. Itrecommended a sentence of intensive supervision, whether combined with communitydetention or not, or of home detention, before imprisonment.[6] Ms McKenzie, for the Crown, submits the starting point was appropriate. Shesubmits there was an absence of evidence to support a discount for rehabilitation orremorse or connecting Mr Letham's injury with his offending, and that his historyshows he has been unresponsive to previous opportunities for rehabilitation. She saysthe medical information takes the matter no further. She submits the end sentence wasnot manifestly excessive and the Judge was not wrong to decline home detention interms of the purposes and principles of sentencing, to bring home the seriousness ofthe offending to Mr Letham. Ms McKenzie accepts the Judge erred by disqualifyingMr Letham from driving indefinitely, rather than imposing an alcohol interlocksentence.Should the appeal be upheld?[7] Under s 250 of the Criminal Procedure Act 2011, the Court must allow theappeal if satisfied there is a material error in the sentence and a different sentenceshould be imposed. The focus is on whether the end sentence is within the availablerange.5 The Court will only intervene if the sentence being appealed is "manifestlyexcessive" and is not justified by the relevant sentencing principles.6[8] I consider the starting point of 20 months was within the range available to theJudge for offending with the seriously aggravating factors present here, of multipleoffences, with two in close succession, high levels of intoxication, the public risk inhis erratic driving, and offending while on remand. I consider that that is consistentwith the pattern of cases surveyed by Whata J in Samson. As to discounts, the medicalevidence now made available dates from 2002 and is not particularly informativeabout ongoing effects. Without more recent information that speaks to Mr Letham'scurrent medical condition, I do not consider it provides a justification for a furtherdiscount. Based on the information before him, particularly from the pre-sentencereport, the five per cent discount applied by the Judge was within the range availableto him. I am not persuaded there was an error in that regard.[9] However, I do consider it was wrong not to convert the sentence ofimprisonment to a sentence of home detention. Imprisonment is likely to hinder ratherthan help Mr Letham's rehabilitation. He has not been sentenced to home detentionbefore. He has an available address for home detention. He took steps to self-referand enrol in Te Poutama Tautoko alcohol and drug counselling services. Homedetention can satisfy the principles and purposes of sentencing under the SentencingAct 2002 and, in particular, s 8(g) which requires imposition of the least restrictiveoutcome that is appropriate in the circumstances. The length of home detention willneed to be adjusted to reflect the lack of possibility of parole.[10] I also accept the Judge erred in not ordering an alcohol interlock sentence asan alternative to indefinite disqualification. As both counsel accept, s 65AC of the5 Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [36].6 Ripia v R [2011] NZCA 101 at [15].Land Transport Act 1998 (LTA) requires the Court to impose an alcohol interlock.This is an alternative to disqualification under s 56. It may not have been drawn to theJudge's attention. The period of Mr Letham's disqualification for this purpose is theperiod he has served already in prison.Result[11] I quash the sentence imposed by the District Court and substitute a sentenceof:(a) seven months' home detention at [redacted], with three months' creditfor his imprisonment to date, so four months' home detention fromtoday, with all the detention conditions imposed by s 80C of theSentencing Act and a requirement to travel directly to that address onrelease from prison;(b) a requirement on Mr Letham to undertake treatment for his alcoholissues and to undertake any counselling or programmes required by theProbation Officer;(c) a requirement under s 80D to:(i) attend an assessment for alcohol and drug counselling asdirected by a Probation Officer; and(ii) attend and complete any counselling, treatment or programmeas recommended by that assessment, as directed by and to thesatisfaction of a Probation Officer;(d) a period of disqualification from driving that began when he wasimprisoned and ends on his release; and(e) an alcohol interlock sentence under s 65AC of the LTA which, providedhe complies with the requirements of s 65AG (which Ms Te Puke-Cowperthwaite will need to explain to him), he is authorised eventuallyto apply to substitute with a zero-alcohol licence under s 100A.Palmer J