SKUDDER v NEW ZEALAND POLICE [2018] NZHC 1448

SKUDDER v NEW ZEALAND POLICE [2018] NZHC 1448 [15 June 2018]IN THE HIGH COURT OF NEW ZEALANDTAURANGA REGISTRYI TE KŌTI MATUA O AOTEAROATAURANGA MOANA ROHECRI-2018-463-000035[2018] NZHC 1448BETWEEN CHRISTOPHER BASIL SKUDDERAppellantAND NEW ZEALAND POLICERespondentHearing: 12 June 2018Appearances: S Whitehead for AppellantE F Collis and S J P Davison for RespondentJudgment: 15 June 2018JUDGMENT OF WYLIE JThis judgment was delivered by Justice WylieOn 15 June 2018 at 4.00pmPursuant to r 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Solicitors/counsel:Crown Solicitor, TaurangaS Whitehead, TaurangaIntroduction[1] The appellant, Christopher Skudder, pleaded guilty to the following charges:(a) Refusing to provide a blood specimen (third or subsequent offence);1(b) Driving while disqualified (third or subsequent offence);2 and(c) Careless driving.3[2] On 6 March 2018, Judge Bidois, in the District Court at Tauranga, sentencedMr Skudder to 21 months' imprisonment, and disqualified him from driving, pursuantto s 65(2) of the Land Transport Act 1998.4[3] Mr Skudder appeals his sentence, arguing that it was manifestly excessive. TheCrown opposes the appeal.Relevant facts[4] On 29 March 2017, Mr Skudder was disqualified from driving for a period ofone year, commencing on that day.[5] Notwithstanding this disqualification, on Wednesday 6 December 2017 at10.35 pm, Mr Skudder was driving a motor vehicle on Wilson Road North, Maketu.He failed to negotiate a sharp bend and crashed his vehicle. It rolled several times,landing on its roof. Mr Skudder managed to free himself, and emergency serviceswere called. Mr Skudder was transported to Tauranga Hospital, where he was requiredto permit a sample of blood to be taken. He refused to do so. When he was asked foran explanation, he declined to comment.1 Land Transport Act 1998, s 60(1)(c). As per s 60(3), the maximum penalty is imprisonment for aterm not exceeding two years or a fine not exceeding $6,000. The court must also order the personto be disqualified from holding or obtaining a driver licence for one year or more.2 Land Transport Act, s 32(1)(a). As per s 32(4), the maximum penalty is imprisonment for a termnot exceeding two years or a fine not exceeding $6,000. The court must also order the person tobe disqualified from holding or obtaining a driver licence for one year or more.3 Land Transport Act, s 37(1). As per s 37(2), the maximum penalty is a fine not exceeding $3,000.The court may also order the person to be disqualified from holding or obtaining a driver licencefor such period as the court thinks fit.4 Police v Skudder [2018] NZDC 4360 at [10]-[12].District Court decision[6] After setting out the relevant facts and noting Mr Skudder's personalcircumstances, Judge Bidois observed that the sentencing principles and purposesrelevant to this offending:5[4] include holding you accountable for your offending and promotinga sense of responsibility in you. There is a need for deterrence anddenunciation when dealing with offenders who are repetitive drink-drivers [7] The Judge then commented on the aggravating and mitigating features of theoffending, and on Mr Skudder's personal circumstances:[6] The aggravating features that I see are the fact that you are on threecharges, there is the combination of not only drinking and driving, but drivingwhile disqualified. There are your previous convictions [7] Mitigating factors are your pleas of guilty and some acceptance ofresponsibility.[8] I have to assess the overall seriousness of your offending. In relationto this matter these represent your sixth conviction for drink-driving,therefore, a sentence of imprisonment is inevitable. Road safety wascompromised because you crashed.[8] Judge Bidois adopted the charge of refusing to provide a blood specimen asthe lead charge.6 He adopted a starting point of 18 months' imprisonment,commenting:[9] People who refuse blood, the Court treats their reading at the higherend which would in my view, with your history, justify a starting point on therefusing which is the lead charge at 18 months [9] Judge Bidois then increased this starting point by 10 months' imprisonment toreflect the driving while disqualified charge.7 He gave Mr Skudder what he termed "aone-third" discount of seven months on that starting point, reducing the sentence to 21months' imprisonment.8 The Judge convicted and sentenced Mr Skudder to 21months' imprisonment, declining him leave to apply for substitution of sentence.95 Police v Skudder, above n 4.6 At [9].7 At [9].8 At [9].9 At [10].[10] Judge Bidois also indefinitely disqualified Mr Skudder from driving, as he wasrequired to do so under s 65(2) of the Land Transport Act.10[11] As to the careless driving charge, Judge Bidois convicted and discharged MrSkudder.11Submissions[12] Mr Whitehead, appearing for Mr Skudder, submitted that Judge Bidois erredin three respects:(a) in uplifting the sentence by 10 months' imprisonment, after establishinghis starting point;(b) by miscalculating the one-third discount given to Mr Skudder formitigating factors; and(c) by imposing a sentence which was manifestly excessive.[13] Ms Collis, for the Crown, submitted that the sentence imposed was within theavailable range, and that the appeal should be dismissed.Approach to appeal[14] Section 250(2) of the Criminal Procedure Act 2011 provides:(2) The first appeal court must allow the appeal if satisfied that—(a) for any reason, there is an error in the sentence imposed onconviction; and(b) a different sentence should be imposed.In any other case, the court must dismiss the appeal.1210 At [12].11 At [15].12 Criminal Procedure Act 2011, s 250(3).[15] A sentence may be set aside where it is manifestly excessive.13 Whether asentence is manifestly excessive depends on the end sentence, not the process bywhich the sentence was reached. The court will not intervene where the sentence iswithin range. But, if the court determines the sentence is manifestly excessive, it willform its own view of the appropriate sentence.14Analysis[16] Under the Land Transport Act, the offences of driving with excess breath/bloodalcohol and refusing to provide a blood specimen attract the same maximumpenalties.15 The Courts have treated the offences as being interchangeable for thepurposes of assessing starting points when sentencing.16[17] Mr Whitehead accepted that the starting point adopted by Judge Bidois – 18months' imprisonment for the lead offence of refusing to provide a blood specimen –was appropriate. He took issue, however, with the uplift of 10 months' imprisonmentfor the driving while disqualified charge. He argued that the driving while disqualifiedcharge was taken into consideration when determining the appropriate starting pointfor all of Mr Skudder's offending.[18] There has been some divergence of opinion in relation to sentencing in thisarea.[19] Traditionally, sentencing Judges dealing with breath/blood alcohol relatedoffending have referred to the judgment of Wild J in Clotworthy v Police,17 where theJudge set out a table which recorded the starting points adopted in a number of HighCourt and District Court decisions for the offence of excess breath/blood alcohol (thirdor subsequent).18 He also identified a number of aggravating and mitigating factorswhich may be relevant in assessing the starting point in each case, as follows:13 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [33].14 Tutakangahau v R, above n 13, at [30].15 Sections 56(3)-(4) and 60(2)-(3).16 Kumar v R [2015] NZHC 1034 at [18]; Clotworthy v Police (2003) 20 CRNZ 439 (HC) at [1],[24].17 Clotworthy v Police, above n 16.18 At [17]-[18].[20] In relation to multiple [excess breath alcohol] offending, at leastthe following ten factors are relevant:[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 s65(2)(b) of the Land Transport Act 1998 is perhaps ofsignificance).[c] Conviction for two or more drink driving offences in closesuccession.[d] The manner of driving: innocuous or dangerous; accident andinjury resulting or neither? Sometimes this manifests itself inan additional charge(s).[e] Whether the offender was disqualified or forbidden fromdriving at the time (as to the latter, note the mandatory 28 daysuspension period referred to in s 95 Land Transport Act1998).[f] The plea(s) and, if guilty, whether that plea was entered at anyearly stage or only belatedly.[g] The sentences (in particular whether they includedimprisonment) imposed for previous EBA convictions and theresponse (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 ofthe offender to confront his/her contributing alcohol and/orpersonal problems.[j] Any mitigating personal or family circumstances contributingto the offending.[20] Clotworthy was considered by Whata J in Samson v Police.19 The Judgecommented as follows:[14] I regard items [a]-[e] as aggravating factors for the purpose ofassessing the start point for the offending, while [g] and [h] arerelevant to uplift for aggravating personal circumstances. Items [f]and [i]-[j] are mitigating factors.[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 a19 Samson v Police [2015] NZHC 748.prolonged 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.(Citations omitted)[21] 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, 9-12months;(b) One or more seriously aggravating factors, 12-18 months;(c) Multiple offences with seriously aggravating factors, 18-20months; and(d) Multiple offences and very serious aggravating factors (i.e.offending of the worst kind), 20-24 months.(Citations omitted)[22] I agree with Mr Skudder's counsel, and with counsel for the Crown, that thestarting point adopted by Judge Bidois of 18 months' imprisonment for the offence ofrefusing to provide a blood specimen (third or subsequent) was well within theavailable range. While the Court does not know Mr Skudder's blood alcohol level, itis significant that he told the writer of the pre-sentence report that he had consumedeight 745 millilitre bottles of beer before attempting to drive home. He has sixprevious convictions for drink driving or similar offending, the most recent of whichwas in March 2017. His driving was dangerous. He crashed his vehicle.[23] The issue is whether Judge Bidois' 10-month uplift for the offence of drivingwhile disqualified was double counting, given that it is an aggravating feature referredto in Clotworthy20, and is given as an example of a seriously aggravating feature inSamson.21[24] Neither Clotworthy nor Samson are tariff cases as such. There are a range ofHigh Court decisions, as well as District Court decisions, dealing with these offenceswhere they arise out of the same factual context, and the decisions have taken differentapproaches. Moore J has observed as follows:22[36] The authorities reveal that there are two judicial approaches whichhave been adopted when examining the sentencing levels for driving whilstdisqualified. The first is that adopted by Duffy J in Peterson v Police. Thisinvolves setting a starting point with reference to the instant offending andthen uplifting it for previous offending including previous convictions fordriving while disqualified. The second approach involves setting a startingpoint with reference to the driving while disqualified offences as well as anyprevious disqualified driving convictions. This was the approach favoured andadopted in Drinkwater v Police. This approach appears to have more judicialsupport although I agree with the comments of Dunningham J in Keenan vPolice that in any event the adoption of either approach should lead to thesame result.(Citations omitted)[25] Here, Judge Bidois set a starting point of 18 months' imprisonment for the leadcharge of refusing to give a blood specimen. He did not justify his starting point onthe basis that Mr Skudder was driving while disqualified. Rather, he uplifted thestarting point for that offence by 10 months' imprisonment. While the Judge did notrefer to the divergence of judicial opinion, he was not required to do so.20 Clotworthy v Police, above n 16, at [20](e).21 Samson v Police, above n 19, at [16].22 Opetaia v Police [2015] NZHC 2532.[26] The approach taken by Judge Bidois has been followed by a number of otherJudges. I note the following examples:(a) In Koopu v Police,23 the District Court Judge had adopted a startingpoint of 16 months' imprisonment for the drink driving offence and 12months' imprisonment for the driving while disqualified offence.Woodhouse J on appeal upheld a cumulative sentence of 21 months'imprisonment.24 It was the appellant's eighth drink driving offence andseventh driving while disqualified offence.(b) In Hemara v Police,25 the District Court Judge had adopted a startingpoint of 24 months' imprisonment in respect of both drink driving andthe driving while disqualified charges. Thomas J commented asfollows:[11] In this case the Judge adopted a starting point of 24months' imprisonment in respect of both charges.Even accepting Mr Forster's submission that thedriving with excess breath alcohol offending was notat the most serious end of the spectrum, it would stillattract a starting point of around 18 months'imprisonment. The starting point would then requirean increase of at least six months to take account ofthe driving while disqualified offending. This couldhardly be considered out of range and would result inan overall starting point of 24 months' imprisonment.With the 25 per cent discount for the guilty plea, theend sentence would still be 18 months' imprisonment.She upheld an end sentence of 18 months' imprisonment.26 It was theappellant's ninth drink driving offence and ninth driving whiledisqualified offence.(c) In Hughes v R,27 the appellant pleaded guilty to one charge of drivingwith excess breath alcohol and one charge of driving while disqualified.Both charges arose out of the same driving incident. The District Court23 Koopu v Police [2013] NZHC 1356.24 At [9].25 Hemara v Police [2017] NZHC 1671.26 At [12].27 Hughes v R [2012] NZCA 388.Judge sentenced the appellant to cumulative terms of 18 months'imprisonment on each charge. The Court of Appeal upheld the sentenceon the cumulative basis.28 It observed as follows:[22] Again, we accept Mr Marshall's submission that s84(1) applies in the circumstances of the appellant'soffending. We are satisfied that the two offencesinvolved in this case are different in kind. As theDistrict Court Judge said, the offence of driving withexcess breath alcohol is concerned with road safety.While the offence of driving while disqualified alsobears upon road safety, it is primarily concerned withthe enforcement of court orders. Those who flout theorders of the court challenge the authority of thecourt and must be dealt with accordingly as part ofthe administration of justice. In those circumstances,cumulative sentences of imprisonment are generallyappropriate in terms of s 84(1) whether or not theyrelate to a connected series of offences.[27] It was open to Judge Bidois to adopt a starting point for the lead charge, andthen uplift that starting point to reflect the remaining offending. The uplift was wellwithin the available range – arguably it was modest.29 It was Mr Skudder's 12thconviction for driving whilst disqualified.[28] I now turn to the issue of discounts. Judge Bidois stated that he was giving MrSkudder a one third discount to his overall starting point of 28 months' imprisonment.However, he reduced his starting point by only seven months. This equated not to aone third discount, but rather to a discount of 25 per cent.[29] Mr Skudder entered guilty pleas promptly. He was entitled to a reduction inhis sentence to allow for those guilty pleas, but such reduction would not normallyexceed 25 per cent.3028 At [22].29 Keenan v Police [2014] NZHC 1894 – a starting point of 20 months' imprisonment was adoptedfor the appellant's eleventh conviction of driving while disqualified; Affleck v Police [2017]NZHC 3220 – a starting point of 20 months' imprisonment was adopted for the appellant's tenthconviction for driving while disqualified; Morrell v Police [2014] NZHC 856 – a starting point of18 months' imprisonment was adopted for the appellant's tenth conviction for driving whiledisqualified.30 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [75].[30] The Judge did refer to Mr Skudder accepting "some responsibility" for hisoffending. It is not clear from his sentencing notes whether or not he was giving anadditional discount for this factor.[31] I do not consider that any additional discount was appropriate. I note thecomments in the pre-sentence report. He is assessed as high risk of reoffending and high risk of harm based onhis well established pattern of recidivist driving related matters beginning in1989. He has an inability to clearly understand the impact his driving whilstunder the influence of alcohol has on others Mr Skudder appears to down-play the serious nature of his offending and doesnot present as remorseful.[32] In my view, Judge Bidois made a simple error when he stated that he wasgiving Mr Skudder a 33 per cent discount. Mr Skudder was only entitled to a 25 percent discount, and that is what he got.[33] No issue was taken with the indefinite disqualification imposed by the Judge.Nor was any issue taken with the Judge's refusal to allow Mr Skudder to apply for asubstituted community based sentence. Indeed, I note that the pre-sentence reportadvises that Mr Skudder did not consent to an electronically monitored sentence. Hestated that he preferred a sentence of imprisonment.[34] It follows that, in my view, Judge Bidois did not err in the sentence imposed.[35] The appeal is dismissed.______________________________Wylie J