BURGESS v NEW ZEALAND POLICE [2021] NZHC 1370

BURGESS v NEW ZEALAND POLICE [2021] NZHC 1370 [10 June 2021]IN THE HIGH COURT OF NEW ZEALANDPALMERSTON NORTH REGISTRYI TE KŌTI MATUA O AOTEAROATE PAPAIOEA ROHECRI-2021-454-16[2021] NZHC 1370BETWEEN DAVID SHAUN BURGESSAppellantAND NEW ZEALAND POLICERespondentHearing: 10 June 2021Appearances: M B Ryan for the AppellantE R Pairman for the RespondentJudgment: 10 June 2021ORAL JUDGMENT OF PALMER JSolicitors:M B Ryan, Palmerston NorthBVA The Practice, Palmerston NorthWhat happened?[1] Just before midnight on Friday 31 July 2020, Police alleged they witnessed avehicle speeding on Main Street, Palmerston North and attempting to evade them.Mr David Burgess was located walking away from the vehicle with the keys in hispocket. He was arrested and refused to undergo breath and alcohol procedures. Justpast midnight on Sunday 11 October 2020 in Palmerston North, the Police stoppedMr Burgess and conducted a breath test. There were two passengers in the back of hisute. The reading was 654 micrograms of alcohol per litre of breath. Mr Burgess hasbeen convicted twice before for driving with excess breath alcohol, in January 2017(at 597 micrograms) and March 2018 (at 472 micrograms).[2] Mr Burgess was charged with refusing to provide a blood specimen and drivingwith excess blood alcohol, having been convicted at least twice previously of relevantspecified offences. These offences each carry a maximum penalty of two yearsimprisonment or a $6,000 fine and a mandatory minimum disqualification fromdriving for 12 months. Mr Burgess pleaded guilty. His guilty plea to the refusal toprovide a blood specimen was on the basis that he was not the driver but a passengerin the car. The summary of facts, which was the basis on which he pleaded guilty, didnot state he was the driver. He was originally charged with dangerous driving on31 July 2020 as well, but no evidence was offered when the guilty plea was entered tothe other charge.[3] On 23 April 2021, in the Palmerston North District Court, Judge C D Sygrovesentenced Mr Burgess to home detention for six months and two weeks.1 He identifiedthe following as aggravating factors: these two blood alcohol offences being in quicksuccession; there being two previous breath or blood alcohol offences in the last fiveyears; and a very poor standard of driving on 11 October 2020 with passengers beingin the back of the ute.2 The Judge set a starting point of 18 months' imprisonment,relying on a range of 12 to 18 months identified by the High Court in Samson v Police.3He gave a 25 per cent discount for an early guilty plea.4 The sentence of six months1 Police v Burgess [2021] NZDC 8804.2 At [3].3 At [4], citing Samson v Police [2015] NZHC 748.4 At [4].and two weeks was for each offence, to be served concurrently. He noted the pre-sentence report recommended community detention and supervision but consideredthat was not an adequate sentence to reflect the seriousness of the offending.5[4] Mr Burgess has now spent 47 days on home detention. He appeals on the basisthe sentence was manifestly excessive.Submissions[5] Mr Ryan, for Mr Burgess, submits the starting point of 18 months was too high,having regard to relevant case law with similarities to Mr Burgess' offending.He submits a starting point of less than nine months imprisonment is appropriate. Hesubmits the offence of refusing the blood specimen did not involve driving andMr Burgess has not previously been sentenced to an electronically monitored sentenceor a sentence with a rehabilitative focus.6 He submits the sentence should have beensix months' community detention and nine months' supervision.[6] Ms Pairman, for the Police, acknowledges the starting point was too high andsubmits it should have been between nine and 12 months' imprisonment. She submitsthe Judge was right to have regard to the length of time since the last conviction andthe dangerous driving as aggravating factors. She also submits Mr Burgess' breathalcohol level was relevant. She relies on Mason v Police where the Court concludeda starting point of six to seven months was available.7 She submits it is appropriate tocommute the sentence to a community-based sentence and that six months communitydetention and nine months' supervision would address Mr Burgess' emerging patternof drink driving.Was the sentence manifestly excessive?[7] Under s 250 of the Criminal Procedure Act 2011, I must allow the appeal ifsatisfied there is a material error in the sentence and a different sentence should beimposed. The focus is on whether the end sentence is within the available range.85 At [6].6 Bechan v Police [2015] NZHC 747.7 Mason v Police [2017] NZHC 126.8 Ripia v R [2011] NZCA 101 at [15].[8] As Ms Pairman responsibly conceded, the end sentence here was not withinthe available range and was manifestly excessive. The length of time since theprevious drink driving convictions was an aggravating factor here, as was the mannerof driving, as Mr Ryan concedes.9 But only one of these convictions involved driving,which the Judge did not appear to appreciate. And he did not take into account thelack of Mr Burgess' previous experience of electronic monitoring. A starting point ofno more than 12 months' imprisonment for both offences was appropriate. I wouldhave started at nine months. No one takes any issue with the 25 per cent discount forthe guilty pleas.[9] Commuting the sentence to a community-based sentence is appropriate givenMr Burgess' history, his drink-driving problem, and that he had not previously beensubject to electronic monitoring. Six months' community detention and nine months'supervision would have been appropriate. I adjust that for the 47 days he has been onhome detention. I uphold the appeal, quash the sentence and instead sentence MrBurgess to four months' community detention and nine months' supervision from now,subject to the conditions proposed in the original Provision of Advice to Court report.Palmer J9 Clotworthy v Police (2003) 20 CRNZ 439 (HC).