POULSON v NZ POLICE [2016] NZHC 2166

POULSON v NZ POLICE [2016] NZHC 2166 [13 September 2016]IN THE HIGH COURT OF NEW ZEALANDNELSON REGISTRYCRI 2016-442-13[2016] NZHC 2166BETWEEN CORI MARTIN POULSONAppellantAND NEW ZEALAND POLICERespondentHearing: 13 September 2016Counsel: T H A Spear for AppellantS J Revell for RespondentJudgment: 13 September 2016JUDGMENT OF SIMON FRANCE J[1] Mr Poulson appeals a sentence of nine months' imprisonment imposed inrelation to one charge of driving with a zero alcohol licence, whilst having a breath alcohol level of 295 mg. The other charge was dangerous driving reflecting the fact that while over the alcohol limit Mr Poulson was driving at 176 kph. His 14 year old son was a passenger.1[2] Mr Poulson is 36 years old. He has four previous drink driving offences – in 2000 (breath, 627 mg); in 2003 (breath, 941 mg); in 2010 (breath, 869 mg); and in 2012 (blood, 203 ml). On the occasion of the 2012 offence he was sentenced tothree months' community detention, one year intensive supervision and disqualifiedindefinitely. He subsequently obtained a licence but with a zero alcohol condition. Mr Poulson was in employment but lost his work as a result of this offending.1 NZ Police v Poulson [2016] NZDC 12395.[3] The penalty for alcohol related driving while on a zero alcohol licence varies with level of alcohol:2(a) up to 250 mg, maximum of three months' imprisonment and $2,250fine;(b) over 250 mg, maximum of two years' imprisonment and a $6,000 fine.[4] A reading of 250 mg is the level at which offending now starts for those with a full licence. It is punishable by a fine. The much higher maximum penalty for the same level for zero rated licences no doubt reflects the circumstances that have led a driver to have a zero alcohol licence – namely, similar past offending.[5] The sentencing Judge took a starting point of 12 months' imprisonment for allthe offending. The aggravating factors in addition to the drink driving were identified as:(a) the speed;(b) the risk created to his son, and other road users; and(c) the previous drink driving offending.[6] Credit was given for Mr Poulson's guilty plea leaving a final sentence of ninemonths' imprisonment. The Judge declined home detention. It was noted Mr Poulson had previously been sentenced to community detention and supervision. The purposes of sentencing, in particular deterrence and protection of the community, would not be met by a sentence less than imprisonment.[7] On appeal it is submitted the starting point is excessive and pays insufficient regard to the particular drink driving offence. It is said the Court has sentenced Mr Poulson as if he had committed a fifth serious drink driving offence akin to the2 Land Transport Act 1998, s 57AA.previous four. However, the level was barely above that permissible for ordinary licences and would attract only an administrative fine in such circumstances. Accepting that Mr Poulson is within the more serious of the two zero alcohol licence offences, it is nevertheless submitted that regard had to be had to the low level. The offending should therefore be seen as much less serious than Mr Poulson's previous offences, rather than be treated as a next instalment (my term) of a pattern of offending.[8] The submission in my view overstates the difference in the various offences. The maximum penalty for a zero alcohol licence when the alcohol level is over 250 mg is the same penalty as applies to a third and subsequent drink driving offences on a full licence. As the Judge said, this penalty structure indicates the seriousness with which the present offence is viewed.[9] I agree, however, that the dramatic change in maximum penalty at the 250 mg level suggests a sentencing spectrum reflecting the actual level of alcohol will emerge over time. Consistent with that, I accept that the 294 mg reading comes towards the bottom of the offence, and this should be recognised in the starting point. Mr Poulson's history of drinking driving offending, and the dangerous driving charge would both still need to be factored in. As regards the former, for sentencing purposes a zero alcohol licence and offending against this provision does not draw a curtain over the past offending history in terms of its relevance to the penalty: an uplift may still be appropriate.[10] The dangerous driving charge carries a maximum of three months'imprisonment. Here the dangerous driving involved only speed, but also included the specific danger to his son as well as the wider driving community. Given the maximum penalty, an uplift of four weeks was the most available. That would mean the Judge must have taken an aggravated starting point of 11 months' for the drinkdriving offence. From a maximum penalty of two years' imprisonment and given the very low reading, I accept that was an excessive starting point.[11] Taking a stern approach but bearing in mind it is a first jail sentence, I consider six months was the appropriate starting point. To that must be added a penalty for dangerous driving and some uplift for his previous offending history. I consider the final starting point should be eight months with a two month reduction for the guilty plea. The final sentence will therefore be six months. Given the time Mr Poulson has already served, he will be eligible for release soon. Accordingly, the issue of home detention does not require consideration.Conclusion[12] The appeal is allowed. The sentence of nine months is quashed and in its place I substitute a sentence of six months' imprisonment. The balance of the original sentence is otherwise unchanged._________________________Simon France J