Rota v New Zealand Police [2019] NZHC 2812

Rota v New Zealand Police [2019] NZHC 2812 [31 October 2019]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECRI-2019-463-90[2019] NZHC 2812IN THE MATTER of an appeal against sentenceBETWEEN DAVID ROTAAppellantAND NEW ZEALAND POLICERespondentHearing: 31 October 2019Counsel: PT Birks for appellantG Banuelos for respondentJudgment: 31 October 2019(ORAL) JUDGMENT OF FITZGERALD JSolicitors: Gordon Pilditch, RotoruaTo: P Birks, Rotorua[1] Mr Rota pleaded guilty to one charge of driving with excess blood alcohol(third or subsequent).1 He was sentenced to 90 hours of community work and wasdisqualified from driving for one year and one day.2 He now appeals this sentence.Offending[2] Mr Rota was stopped at approximately 12.30 am on 29 August 2019 forcompulsory alcohol and licence checks. Breath testing procedures were commenced,and a subsequent evidential breath test gave a reading of 557 micrograms of alcoholper litre of breath, over the statutory maximum of 400 micrograms as set out in s 56(1)of the Land Transport Act.[3] The summary of facts records that Mr Rota told Police he was driving a familymember back to his house to stop an argument.District Court decision[4] Judge Hollister-Jones described the offending, and noted it had apparentlyoccurred because Mr Rota was driving his friend's son and grandson because he wasconcerned about some tension where they had been. The Judge recorded this wasMr Rota's fifth excess breath alcohol incident but acknowledged he had not offendedin this way for 18 years. He described Mr Rota's breath alcohol level as "in themedium range".3[5] The Judge took a starting point of 120 hours community work, and reduced itby 25 per cent, or 30 hours, for a guilty plea. Accordingly, Mr Rota was sentenced to90 hours community work and disqualified for one year and one day.[6] Mr Rota appeared in person at the sentencing hearing, without the assistanceof legal counsel.1 Land Transport Act 1998, s 56(1), s 56(4). Maximum penalty two years' imprisonment or $6,000fine, and the Court must order the person to be disqualified from driving for more than one year.2 Police v Rota [2019] NZDC 20048.3 At [1].Criminal history[7] Mr Rota is 69 years of age. He has over 40 previous convictions, but almostall are historic. His only conviction since 2001 is for assault on a Police officer in2010, for which he received a $300 fine, so it can be inferred it was minor offending.Indeed, given Mr Rota has only ever received sentences of fines, suspended sentences,and non-residential periodic detention, it can be inferred that all his previous offenceshave been relatively minor.[8] As the District Court Judge acknowledged, this is Mr Rota's fifth convictionfor driving with excess breath alcohol, but he has not offended in this manner since2001.Submissions for Mr Rota[9] Mr Birks for Mr Rota submits the Judge erred by not accepting submissionsmade by Mr Rota on his own behalf at the sentencing hearing. If the Judge hadaccepted Mr Rota's submissions, he would have given more weight to the mitigatingcircumstances, in particular that Mr Rota had not anticipated driving that night andonly did so to remove a young person, I am told aged around 4, from a harmfulsituation. Mr Birks also emphasised the absence of any suggestion of erratic drivingby Mr Rota on this occasion and the very lengthy time since his earlier offending ofthis type.[10] Given the mitigating circumstances, Mr Birks further submits that there maybe grounds in this case to impose a lesser period of disqualification from driving thanthe mandatory period of one year or more. He notes s 81 of the Land Transport Act1998 enables the Court to impose the mandatory disqualification period "unless forspecial reasons relating to the offence it thinks fit to order otherwise". He suggeststhe situation Mr Rota found himself in was an unexpected emergency which justifiesa lesser period. Ultimately, Mr Birks urges that the sentence be quashed, and thematter be remitted to the District Court for Mr Rota to be resentenced on a fullerfactual basis.Submissions for the Police[11] Ms Banuelos for the Crown responds that the District Court Judge was entitledto reject Mr Rota's submission he was trying to protect a young person from a fightbetween family friends. She says if Mr Rota wanted to go beyond the summary offacts to which he pleaded guilty, he should have adduced further evidence prior tosentencing or sought a disputed facts hearing under s 24 of the Sentencing Act 2002.[12] However, even if the Court accepts that there was a fight, Ms Banuelos submitsthat this does not constitute a good reason for driving, citing authority that imminentor life-threatening danger is needed before the Court will accept there were specialcircumstances that might justify a lower sentence or a lesser period ofdisqualification.4 While she accepts Mr Rota may have found himself in an unpleasantsituation, there is no indication it was life-threatening, or involving imminent and realdanger. Further, should Mr Rota have considered there was a real emergency, shesubmits he should have called the Police rather than driving intoxicated. Alternatively,had he wanted to remove persons from the home, he could have left the house on footand could have subsequently called a taxi.Jurisdiction on appeal[13] Appeals against sentence are governed by s 250 of the Criminal Procedure Act2011:250 First appeal court to determine appeal(1) A first appeal court must determine a first appeal under this subpart inaccordance with this section.(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.(3) The first appeal court must dismiss the appeal in any other case.4 Including Dawson v Police [2014] NZHC 2991; Anderson v Police [2016] NZHC 942; Brown vPolice HC Hamilton CRI-419-87-04, 7 October 2004.[14] An appeal will be successful only if the appellant can point to an error, eitherintrinsic to the Judge's reasoning, or because of additional material submitted on theappeal which vitiates the sentencing decision of the Court below.5 Unless there is amaterial error in sentence, for example, leading to a sentence that it is manifestlyexcessive, manifestly inadequate, or wrong in principle, an appellate court will notintervene.6Evaluation[15] As a preliminary point, it is not clear that the District Court Judge did in factdisregard or wholly disregard Mr Rota's submission as to the mitigating factors of theoffending. I note the respondent's submissions indicate that the Judge may haverejected the submission during the course of the hearing. However, the Judgenonetheless acknowledged in his sentencing notes that Mr Rota was apparently drivinghis friend's son and grandson away from an address where there was some tension. Itis unclear whether, or to what extent, this factored in to the Judge's assessment of the120-hour start point of community work.[16] In my view, however, this lack of clarity is not particularly material, becauseMr Rota's submissions at the hearing, and the content of the summary of facts uponwhich the Judge sentenced Mr Rota, is broadly similar. In my view, this is quite adifferent case from Dawson, where the District Court Judge had considered theappellant had outright lied about needing to drive to get medication for his wife.7There, Whata J held that the Judge should have afforded Mr Dawson some opportunityto present evidence supporting his reason for driving if that reason was challenged.8[17] Here, there does not appear to be such a challenge. The gist of both thesummary of facts and Mr Rota's submissions at the sentencing hearing is the neededto drive someone away from an address because there had been an argument or evena fight. There appears to be little difference between what is in the summary of facts(namely, that Mr Rota "was driving a family member back to his house to stop an5 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [29]-[31].6 At [32]-[35].7 Dawson v Police [2014] NZHC 2991.8 At [9].argument") and the slightly more detailed submissions at the hearing that Mr Rota was"driving [his] friend's son and grandson because [he] was concerned about sometension".[18] In any event, I consider it was available to the sentencing Judge to decline toconsider Mr Rota's explanation as a factor that particularly mitigated his offending. Iaccept Mr Birks' submission that Samson v Police provides a useful frame for excessbreath alcohol sentencing, and I note that case considered the length of time since anoffender's previous conviction, as well as any personal or family circumstances whichcontributed to the offending, as relevant to sentence length.9 Nonetheless, I acceptMs Banuelos' submission that even if Mr Rota's submissions as to events as advancedat the hearing are accepted, they are insufficient to justify a lesser sentence, or a periodof disqualification below the statutory mandatory period. In Dawson, despiteconsidering the District Court should have let Mr Dawson adduce evidence on thepoint, Whata J held that Mr Dawson's decision to deliver medicine for his wife "fallswell short of demonstrating relevant necessity that might otherwise be relevant as amitigating factor", so could "see no unfairness arising because of the absence of theevidence".10[19] A term of imprisonment of 15 months was substituted for a term of 12 monthsin Brown, on the grounds the District Court Judge had failed to give adequateconsideration to mitigating factors.11 There, the appellant had stopped drinking some11 hours prior and drove upon hearing news that his mother was critically ill and hada short time to live. Mr Rota's circumstances are in my view far removed from thesituation which confronted the appellant in Brown. He had been drinking that sameevening and as Ms Banuelos notes, there is no indication of imminent danger at theproperty he drove from, only a brewing or, I accept, potentially an actual fight. Therewere also other options should he have felt that the situation had become dangerous,including calling the Police.9 Samson v Police [2015] NZHC 748 at [13].10 Dawson v Police [2014] NZHC 2991 at [11]. I note he allowed the appeal on a different point.11 Brown v Police HC Hamilton CRI-419-87-04, 7 October 2004.[20] Given driving with an intoxicated driver is itself a dangerous activity, there areclearly strong policy reasons why the courts in the cases cited earlier have onlyconsidered situations involving life-threatening or imminent danger to mitigate thistype of offending.[21] Finally, on this aspect of the appeal, even if the Judge had fallen into error inthe manner suggested, I must still consider whether a different sentence ought to havebeen imposed. I do not consider the sentence of 90 hours community work isremarkable. As noted, this is Mr Rota's fifth conviction for excess blood alcohol. Hadthe offending followed on more closely from his last such offending, a term ofimprisonment or home detention could well have been considered. The Judge plainly,however, took into account and gave Mr Rota considerable credit for the substantialtime period since his last conviction for excess blood alcohol. He was right to do so.The sentence of 90 hours community work cannot be described as manifestlyexcessive. At the hearing before me, Mr Birks quite properly and responsibly in myview accepted that this aspect of the sentence was accordingly not the focus of theappeal.[22] Turning to the submission that special reasons existed for the purposes of s 81of the Land Transport Act, Wylie J's comments in Anderson, in the context of whatconstitutes "special reasons" warranting a lesser period of disqualification, are alsoparticularly salient:12[16] A Court will not lightly find that there are special reasons in thealcohol impairment context. Whether reasonable or possible availablealternatives to drink driving have or could have been explored, will often be afactor of considerableimportance. When a sudden onset of illness or someother emergency may require an intoxicated person to drive, the decision todo so must nevertheless be objectively reasonable. Where all reasonable orpossible alternatives are not explored, it is unlikely that special reasons willbe found.[23] For the same reasons discussed above as to why mitigating circumstances didnot exist, the presently explained circumstances of Mr Rota's offending fall short, inmy view, of reaching the threshold of "special reasons". As noted, there are strong12 Anderson v Police [2016] NZHC 942. Citations omitted.policy reasons why Parliament has taken a strict approach to excess breath alcoholoffending and accordingly a high threshold for establishing special reasons.[24] While Mr Rota may potentially have admirable reasons for wanting to removea young boy from a highly unpleasant situation, on the materials before the Court,there is no suggestion of an actual emergency or life-threatening situation, rather thanwhat I accept was likely to have been a very unpleasant or potentially traumaticsituation, particularly for a young child. There is also no suggestion other alternativesto driving were explored, and this is a point of some significance in the authorities Ihave discussed. I was informed at the hearing today that Mr Rota was driving fromand on Ranulf Street in Rotorua, such that both the options of calling the Police orleaving the property and calling a taxi ought to have been available.[25] Given the above, and while I appreciate the difficult situation in which Mr Rotanow finds himself, I am bound to dismiss the appeal.____________________Fitzgerald J