JENNER v NEW ZEALAND POLICE [2017] NZHC 3031

JENNER v NEW ZEALAND POLICE [2017] NZHC 3031 [7 December 2017]IN THE HIGH COURT OF NEW ZEALANDTIMARU REGISTRYI TE KŌTI MATUA O AOTEAROATE TIHI-Ō-MARU ROHECRI-2017-476-10[2017] NZHC 3031BETWEEN CRAIG RUSSELL JENNERAppellantAND NEW ZEALAND POLICERespondentHearing: 7 December 2017Appearances: S A Saunderson-Warner for the AppellantA R McRae for the RespondentJudgment: 7 December 2017ORAL JUDGMENT OF DUNNINGHAM J[1] Mr Jenner pleaded guilty to driving a motor vehicle with an excess bloodalcohol (EBA) concentration on a third or subsequent occasion. He pleaded guilty andwas sentenced in the District Court to 16 months' imprisonment and was disqualifiedfrom driving for two years.[2] He now appeals against the length of imprisonment on the basis that the Judgemade an error in taking the maximum penalty of two years' imprisonment as thestarting point.Jurisdiction on appeal[3] The appeal is brought under s 250 of the Criminal Procedure Act 2011.Pursuant to that Act, I may allow an appeal against sentence if I find that there was anerror in sentencing and that a different sentence should be imposed.Facts[4] Shortly after midnight on 27 May 2017, Mr Jenner was stopped by police whendriving on Kakanui Road in the Waitaki District. When police spoke to him headmitted he had consumed alcohol before driving and breath and blood alcohol testprocedures were carried out. A subsequent analysis of the defendant's blood showedit contained a proportion of 268 milligrams of alcohol per 100 millilitres of blood.1[5] Mr Jenner has 10 previous convictions for EBA. The most recent convictionwas in July 2011, some six years before the present conviction. In the last 10 years hehas had two EBA convictions with the remaining EBA convictions being incurred ina period spanning from 1985 to 2007.[6] The appellant explains that he had made arrangements for a sober driver todrive him on the night in question and that person drove him from the boat where hadbeen drinking to a residence where he was planning to sleep in a car until morning.However, he woke up around midnight and made the decision to drive himself backto his flat in Kakanui.District Court sentencing[7] The District Court Judge recited Mr Jenner's previous conviction history andthe recommendation in the pre-sentence report for home detention. However, despitethe mitigating factors referred to in the pre-sentence report, she noted he had alreadyhad served a sentence of imprisonment when convicted of EBA in 2011 but hadoffended again. In light of those factors she concluded:Given your sheer number of previous convictions and the reading on thisoccasion, the only possible starting point has to be the maximum two years'imprisonment. Nothing else will meet the aims and principles of sentencing.It takes into account your previous history. It is plain that despite everything,you continue to drink very very heavily knowing it has the impact of loweringyour inhibitions about whether to drive or not.[8] She then acknowledged that there needed to be a reduction for the guilty pleaand for the steps he had taken to engage in counselling. In all, she allowed a reduction1 The current adult legal limit is 80 milligrams of alcohol per 100 millilitres of blood.of one-third, or eight months' imprisonment. Although home detention was apossibility, she concluded that the "sheer recidivism" he exhibited meant that "nothingshort of a custodial sentence is called for".Analysis[9] The ambit of this appeal is confined. Counsel for the appellant acknowledgesthat s 8(c) of the Sentencing Act 2002 requires the Court to impose the maximumpenalty for the offence if the offending is within the most serious of cases for whichthe penalty is prescribed, unless the circumstances relating to the offender make thatinappropriate. Her submission is simple. Notwithstanding his recidivism, the case isnot within the bracket of worst cases. Taking into account leading judgments onmultiple EBA convictions, including Clotworthy v Police, a starting point of 12 to18 months could have been considered, but in any event, should have been no morethan 18 to 20 months' imprisonment.2[10] Specifically, in Clotworthy, various aggravating and mitigating factors wereidentified for the purpose of sentencing EBA charges (third or subsequent offending).Those are:(a) the breath or blood alcohol level;(b) the length of time that has elapsed since the last drink drivingconviction;(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;(e) whether the offender was disqualified or forbidden from driving at thetime;2 Clotworthy v Police (2003) 20CRNZ 439 (HC) and Samson v Police [2015] NZHC 748.(f) the plea and, if guilty, whether that plea was entered at an early stageor only belatedly;(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 of offending;(i) any genuine remorse shown and/or willingness on the part of theoffender to confront his/her contributing alcohol and/or personalproblems; and(j) any mitigating personal or family circumstances contributing to theoffending.[11] In Samson v Police, Whata J considered Clotworthy and noted that factors (a)-(e) above, were important for the purpose of assessing the starting point. In that case,he reviewed a number of authorities and identified some general trends in startingpoints. These were:(a) no serious or only moderately aggravating factors 9-12 months;(b) one or more seriously aggravating factor 12-18 months;(c) multiple offences with seriously aggravating factors 18-20 months;(d) multiple offences and very serious aggravating factors (i.e. offendingof the worst kind), 20-24 months.[12] Seriously aggravating factors for setting the starting point included:(a) a high level of intoxication;(b) dangerous driving;(c) very close proximity in previous EBA offending; and(d) a prolonged and continuous history of driving related offending.[13] In this case, in terms of the Clotworthy factors, the high blood alcohol level isclearly relevant, but the appellant submits that no other factor is applicable. Theappellant's last EBA conviction was over five years ago, there was no driving fault,nor was he subject to disqualification at the time of driving. In terms of the Samsonfactors, the appellant again suggests that the high level of intoxification is the only onewhich is seriously aggravating. While he does have a prolonged history of drivingrelated offending, there have been significant gaps in that history: an eight year gapafter 1988, a seven year gap after 1999 and a six year gap after 2011. The appellanttherefore submits that he does not have an unbroken chain of driving related offendingand that factor should be considered only moderately aggravating, rather than aseriously aggravating factor.[14] There are, also in this case, a number of mitigating factors, including the earlyentry of the guilty plea, the completion of restorative justice drink-driver intervention,a self-referral to Community Alcohol and Drug Services with commencement ofweekly counselling sessions, and expressed remorse. In comparison, the appellantnotes that in Samson, the appellant was almost double the legal limit, he wasindefinitely disqualified at the time of the offending and he had an almost unbrokenchain of prior driving related offending since 2006. However, in that case, Whata Jfelt that whilst the offending was serious, it was not as serious as the offending foundin the 20 month starting point cases and the starting point in that case was set between12 and 18 months.[15] Some other comparative cases that counsel have referred me to include:(a) Kucenko v New Zealand Police where a starting point of 20 months wasadopted for a person with 10 EBA convictions over 40 years, a readingof 252 milligrams of alcohol per 100 millilitres of blood, and"concerning driving".33 Kucenko v Police [2012] NZHC 3398.(b) Tutahi v New Zealand Police, where a 12 months starting point wasadopted where the appellant had a reading of 1126 micrograms ofalcohol per litre of breath and seven previous EBA convictions, withthe last a year before, and where she was unlicensed at the time ofdriving.4(c) Dick v New Zealand Police, where a starting point of 18 months'imprisonment was adopted where the appellant had 662 micrograms ofalcohol per litre of breath, and seven previous EBA convictions, albeitthey occurred in clusters, with significant gaps in his offending history;5and(d) Toetoe v New Zealand Police, where a starting point of 16 months'imprisonment was adopted where the appellant had seven previousconvictions for EBA, a breath alcohol level of 692 micrograms ofalcohol per litre of breath and where there were significant gaps in theoffending history.6[16] Having regard to these comparable cases Ms Sauderson-Warner submits thatthe appellant's case is not within the worst of its kind and should not have received themaximum sentence as a starting point, particularly given that most of his previousoffending was historic and there was no associated driving fault. Instead a startingpoint of 18 to 20 months is appropriate with reference to the authorities. The discountapplied for the guilty plea and mitigating factors of one-third is, she says appropriate,and so the end sentence should be somewhere between 12 and 13 months'imprisonment.[17] Helpfully, in this case, the respondent generally agrees that the factualcircumstances of this case do not place the offending within the most serious categoryof its type, and cases such as Dick and Toetoe suggest a starting point of 18 to 20months' imprisonment was more appropriate in the circumstances. To that it was4 Tutahi v Police [2014] NZHC 3354.5 Dick v New Zealand Police [2014] NZHC 434.6 Toetoe v New Zealand Police [2013] NZHC 2686.suggested that a small uplift to the starting point might be warranted, albeit noting theneed to avoid double-counting. From that the discount of one-third applied by theJudge for the guilty plea and other mitigating factors was appropriate.Outcome[18] I am satisfied that, as counsel have pointed out, by reference to comparablecases, a starting point at the maximum cannot be justified. While Mr Jenner mustinevitably be categorised as a recidivist offender, with a high level of blood alcohol onthis occasion, there have been significant gaps in his recent offending history and therewas no associated driving fault. I do not accept that it is appropriate to uplift for thenumber of previous convictions when this is a matter that is factored into the startingpoint adopted.[19] I would adopt a starting point of 19 months imprisonment. From this I woulddeduct two and a half months for remorse, personal factors and the efforts taken onthis occasion to rehabilitate himself.7 From this, I would deduct a further 25 per centfor the early guilty plea.8 This results in a sentence of 12 months and one weekimprisonment if rounded down to the nearest week.[20] The appeal is therefore allowed. The sentence of 16 months' imprisonment isquashed and a sentence of 12 months, one week imprisonment is substituted. In allother respects, the District Court Judge's decision is upheld. Accordingly, the periodof disqualification she imposed and the conditions of release, remain intact.Solicitors:S A Saunderson-Warner, Barrister, DunedinGresson Dorman & Co., Timaru7 Noting that in Hessell v R [2010] NZSC 135; [2011] 1 NZLR 607 at [73] the Supreme Courtendorsed the Court of Appeal's position that a credit for guilty plea is best applied after all othermatters have been evaluated as this promoted transparency in the sentencing process.8 Being the maximum deduction endorsed in Hessell v R.