MARTIN v NEW ZEALAND POLICE [2019] NZHC 353

MARTIN v NEW ZEALAND POLICE [2019] NZHC 353 [6 March 2019]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI-2018-485-76[2019] NZHC 353BETWEEN DAVID KEITH MARTINAppellantAND NEW ZEALAND POLICERespondentHearing: 26 February 2019Counsel: P H Surridge for AppellantE M Light and F A M Manning for RespondentJudgment: 6 March 2019JUDGMENT OF THOMAS J[1] At 68 years old, and with five prior convictions for driving with excessbreath/blood alcohol incurred between 1981 and 1996, in October 2018 David Martinappeared for sentence on charges of driving with excess breath alcohol (third orsubsequent)1 (the EBA charge) and careless driving.2 He was sentenced in theWellington District Court to four months' community detention, six months'supervision and an alcohol interlock sentence on the EBA charge, and convicted anddischarged on the careless driving charge.3 Mr Martin appeals the sentence on theEBA charge on the ground it was manifestly excessive in the circumstances.1 Land Transport Act 1998, ss 56(1) and 56(4); maximum penalty of two years' imprisonment, afine of $6000 and a mandatory disqualification from holding a driver licence for more than oneyear.2 Section 37(1); maximum penalty of a $3000 fine and a period of disqualification from holding adriver licence.3 Police v Martin [2018] NZDC 23771.Factual backgroundSummary of facts[2] On 16 May 2018, Mr Martin had been drinking at a bar in Brooklyn,Wellington.[3] At about 10.41 pm, Mr Martin drove his car along Mills Road where roadworkswere being undertaken. One lane only was operating on a section of the road and theflow of traffic was being controlled by stop/go traffic staff. The road was wet fromearlier rain but well lit.[4] The summary of facts, to which Mr Martin pleaded guilty but now disputes,says he was "travelling at speed and swerving all over the road". Mr Martin nearedthe stop/go operator, who was holding a sign signalling that Mr Martin was requiredto stop. Mr Martin failed to stop, forcing the stop/go operator to "[jump] out of theway to avoid being struck by [Mr Martin's] vehicle". Mr Martin then ran over someroad cones, drove into the road works site, clipped one vehicle and crashed into theside of another. The stop/go operator called police.[5] The two cars were "moderately" damaged but no-one was injured. Mr Martin'sevidential breath test gave a result of 846 micrograms of alcohol per litre of breath.[6] Mr Martin told the police that a car coming towards him on the opposite sideof the road meant he was forced to move over to the left, where he hit the parked car.Mr Martin's contention[7] In his submissions, Mr Martin characterised the events differently. He said itwas "a wet raining night". He did not consider he was unfit to drive and, had he doneso, he would have taken a less obvious route than the main street back throughBrooklyn.[8] Mr Martin said that, because of the weather, the lack of signs and "occultinglights", it was hard to see any workers or their signs. When he did see the stop/gooperator, it was with little warning and he "effectively ran out of road room". He hita parked car at low speed and damaged the wheel assembly of his own car. He said,after getting out to inspect the damage, a "road worker acted aggressively" to him andhe was "detained against his will". Mr Martin maintained he weaved over the roadonly when he saw the roadworkers in the rain and gloom and he was surprised theywere working. He did not "flip" his car, as the Judge maintained. It was not a seriousevent but a combination of matters, not completely his fault.District Court decision[9] In sentencing Mr Martin, the Judge traversed the facts as outlined in thesummary of facts, describing them as "pretty shocking". The Judge's signedsentencing notes say Mr Martin "flipped the vehicle".4 This was not so. The summaryof facts says he "clipped a vehicle".[10] The Judge noted Mr Martin's high breath alcohol level, 846 micrograms perlitre of breath. He characterised Mr Martin as being drunk. He referred to Mr Martin'sfive prior EBA convictions, noting they were from a long time ago, between 1980 and1995. Were it not for that fact, the Judge said, Mr Martin would be facing a prisonsentence.[11] The pre-sentence report recommended community detention and supervision.The Judge agreed. He rejected Mr Martin's submission that community work shouldbe imposed instead, saying the seriousness of the offending required a greaterpunishment and community detention would keep Mr Martin away from the pub orother drinking environment at night. Supervision was imposed as a rehabilitativesentence to support Mr Martin in ensuring the offending did not happen again.[12] As Mr Martin was over twice the alcohol level for a criminal offence (asopposed to the infringement level), the Judge was required to impose an alcoholinterlock sentence. Mr Martin does not appeal this aspect of his sentence.4 Police v Martin, above n 3, at [2].[13] Mr Martin was convicted and discharged on the careless driving charge, theJudge noting he had taken the driving into account in sentencing Mr Martin on theEBA charge.Standard of appeal[14] Mr Martin has appealed under s 250 of the Criminal Procedure Act 2011. Anappeal must be allowed only if the Court is satisfied there has been an intrinsic errorin the sentence and a different sentence should be imposed.5 The focus is on the finalsentence and whether it is within the available range, rather than the exact process bywhich it was reached.6Grounds of appeal[15] Mr Martin appeals his sentence on the ground it was manifestly excessive, asthe Judge erred by failing to:(a) appreciate the facts of the offending; and(b) appropriately recognise the age of Mr Martin's prior EBA convictions.[16] Mr Martin's position altered somewhat at the appeal hearing, for reasons whichare explained below. The focus of his appeal then shifted to a complaint that the termof community detention was manifestly excessive, it should have been shorter, with alonger supervision sentence.Factual discrepancies[17] Section 24 of the Sentencing Act 2002 provides for a procedure beforesentencing when there is a dispute about the alleged facts of offending. Where thereis a guilty plea, the judge must accept as proved facts which are essential to the guiltyplea.7 Any disputed fact should be raised at or before the time a defendant enters aguilty plea. If a fact is disputed, the court must indicate the weight it would likely5 Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482.6 Ripia v R [2011] NZCA 101 at [15].7 Sentencing Act 2002, s 24(1)(b).attach to the disputed fact if it were found to exist, and its significance to the sentence.8Facts which are irrelevant to the sentence will not require a disputed fact hearing.[18] No disputed facts hearing was requested in this case. Mr Martin pleaded guiltyto both charges and was represented by counsel when he did so. On this basis, theJudge was entitled to proceed on the summary of facts before him.[19] At first blush it might appear that Mr Martin has a valid complaint, given theJudge's sentencing notes record the Judge as saying that Mr Martin's vehicle"flipped". This Court, having obtained access to the audio recording of the sentencinghearing, played it at the start of the appeal hearing. It is plain, as counsel agreed, thatthe Judge said Mr Martin "clipped a vehicle". It is unfortunate that the formalsentencing notes contain an error. In the District Court, sentencing notes are generallynot transcribed until some time after sentencing has taken place. Given the heavyworkload of a District Court Judge, it would hardly be a surprise if the Judge did notremember the exact details of this particular case and therefore identify thetranscription error.[20] The Judge viewed the summary of facts as "pretty shocking", no doubt becauseof the danger in which Mr Martin placed a road worker, causing the worker to jumpout of the way to avoid being struck by his car. Notably, Mr Martin does not disputethis allegation. Even with Mr Martin's gloss on the facts, the Judge's conclusion thatthis was a serious event of drink driving was warranted.[21] Mr Martin also pleaded guilty to careless driving. He cannot now dispute thefacts which form the foundation of that charge.Age of Mr Martin's prior convictions[22] The sentencing framework for EBA charges is flexible. There is no tariff case.9Case law has established a non-exhaustive list of aggravating and mitigating factorswhich can assist in determining an appropriate starting point.10 These factors include8 Section 24(2)(a).9 Samson v Police [2015] NZHC 748 at [15].10 Clotworthy v Police (2003) 29 CRBZ 439 (HC) at [20] and Samson v Police, above n 9, at [16].breath alcohol level, the length of time since the defendant was last convicted of anEBA offence, the manner of driving (including charges resulting from suchbehaviour), guilty pleas, the defendants' record, remorse and personalcircumstances.11 In cases involving one or more seriously aggravating factors asentence of 12 to 18 months' imprisonment is appropriate.12 Mitigating factors whichmay suggest a lesser sentence, such as home detention, include where there has beena lengthy gap between the current and prior offending.13[23] Here, Mr Martin was twice the legal limit at 845 micrograms per litre of breath,drove carelessly and has five prior EBA convictions. The only mitigating factor, apartfrom the guilty plea, was the age of his prior convictions. This was expresslyrecognised by the Judge. On the basis of the guidance in Samson v Police, the finalsentence of four months' community detention, six months supervision and an alcoholinterlock licence is within range.14Terms of community detention and supervision[24] Mr Surridge appeared for Mr Martin. In his submission, the Judge erred in theway he assessed the final sentence by failing to focus sufficiently on rehabilitation.Essentially, Mr Surridge submitted that the term of the community detention shouldhave been a maximum of two months and the term of the supervision should havebeen somewhere between nine and twelve months.[25] Mr Surridge observed that there is a wider range of sentencing for EBAconvictions in the District Court than those which this Court sees on appeal. Hereferred to a recent decision in the Porirua District Court, Police v Patel, whereMr Patel, at 56 years old, was sentenced on his seventh EBA conviction to fourmonths' home detention, with standard and special conditions to expire six monthsafter detention end date.15 The point made by Mr Surridge was that Mr Patel wouldbe subject to ten months' oversight by the Community Probation Service. In hissubmission, this approach was appropriate for repeat EBA offenders.11 At [20].12 At [15].13 At [17].14 Samson v Police, above n 9.15 Police v Patel [2018] NZDC 17687.[26] That was particularly so in the case of Mr Martin, in Mr Surridge's submission.Mr Martin referred himself for an alcohol and drug assessment in November 2018.He has been attending the Make a Plan programme for repeat drink-drivers with RogerBrooking's Alcohol Drug Assessment and Counselling Service in Wellington. This isa 20-hour programme run over three Saturdays. Mr Martin has attended two of thethree sessions and, according to Mr Surridge, is finding them very beneficial.Mr Surridge said, however, that six months' supervision was inadequate and, if thefocus is on rehabilitation, which in Mr Surridge's submission it should be, then a ninemonths' supervision sentence would be appropriate for Mr Martin. There should be aconsequential reduction in the length of his community detention sentence to twomonths, he suggested.[27] Ms Light, appearing for the respondent, submitted there was no error in theJudge's approach and the sentence was clearly not manifestly excessive. As Ms Lightsaid, it is not a matter of what was most convenient to Mr Martin, noting hissubmission that community detention caused him problems as he had intended to carryout some building work during the longer daylight hours of the summer months.16 Noris Mr Martin's sentence a matter of negotiation.[28] I can see no fault with the way in which the Judge dealt with Mr Martin'ssentencing. The pre-sentence report described him as continually minimising hisactions. It assessed his offending-related factors to be alcohol related issues andattitudes, his sense of entitlement, poor problem solving and minimisation ofoffending. The pre-sentence report recommended community detention, seven days aweek from 7.00 pm to 6.00 am, together with supervision with a condition to attendan alcohol and drug assessment and thereafter any counselling or programme asrecommended.[29] The Judge was required to give effect to the purposes and principles ofsentencing.17 Sentencing for repeat drink drivers involves holding the offenderaccountable, promoting in him or her a sense of responsibility, denunciation and16 Mr Martin served some four to five weeks of his community detention until, as a result of hisappeal, the sentence was suspended.17 Sentencing Act 2002, ss 7 and 8.deterrence, as well as rehabilitation. The Judge, as he was required to, clearly tookaccount of the gravity of the offending, and the need for consistency and to impose theleast restrictive outcome.[30] The Judge's sentencing notes make it clear that he was mindful of the relevantconsiderations and he came to a conclusion which appropriately balanced theprinciples and purposes of sentencing. A comparison with the Patel decisiondemonstrates that.18 Mr Patel had one more EBA conviction than Mr Martin and hispast convictions were more recent. His breath alcohol reading was similar to that ofMr Martin but his manner of driving was of less concern. The Judge who sentencedMr Patel made it clear that he had seriously considered a sentence of imprisonmentbut decided to give Mr Patel one last chance. He therefore sentenced him to homedetention for four months, equivalent to an eight month sentence of imprisonment.That Mr Martin was sentenced to four months' community detention, appropriately,and arguably generously, reflected the differences between the circumstances ofMr Martin and Mr Patel.[31] Mr Martin continues to minimise his responsibility, saying in his submissionson appeal it was "not completely his fault". Furthermore, he said he assumed he was"fit (and lawfully) able to drive". At over twice the legal limit, that was clearly notthe case. It was therefore appropriate for the Judge to impose a sentence whichincluded rehabilitative needs. Mr Martin's attitude also supports the communitydetention sentence, focused, as it was, on keeping Mr Martin in his home duringperiods of risk. In this way, the community detention is integral to the rehabilitativesupervision sentence.[32] It is indeed commendable that Mr Martin referred himself for an alcohol anddrug assessment and appears to be taking some benefit from the counselling. Thereis, of course, nothing to preclude him from continuing with counselling at his ownbehest.18 Police v Patel, above n 15.Result[33] For the reasons given, the appeal is dismissed. The sentence was notmanifestly excessive.Thomas JSolicitors:Crown Solicitor's Office, Wellington