AFFLECK v POLICE [2023] NZHC 2643

AFFLECK v POLICE [2023] NZHC 2643 [21 September 2023]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2023-409-143[2023] NZHC 2643BETWEEN DYLAN WILLIAM AFFLECKAppellantAND NEW ZEALAND POLICERespondentHearing: 20 September 2023Appearances: A J Greaves for AppellantC E Martyn for RespondentJudgment: 21 September 2023JUDGMENT OF MANDER JThis judgment was delivered by me on 21 September 2023 at 3 pmpursuant to Rule 11.5 of the High Court Rules 2016Registrar/Deputy RegistrarDate: .Introduction[1] Dylan Affleck pleaded guilty in the Christchurch District Court to two chargesof driving with excess breath alcohol (third or subsequent),1 and charges of dangerousdriving,2 failing to stop (third or subsequent)3 and driving while suspended (third orsubsequent).4 Mr Affleck was sentenced to two years' imprisonment by JudgeGilbert.5 He appeals that sentence.FactsDriving with excess breath alcohol (third or subsequent)[2] In the early hours of 12 April 2022, Mr Affleck was apprehended travelling 32kph over the speed limit. An evidential breath test returned a result of 473 mcg ofalcohol per litre of breath.Failing to stop (third or subsequent) and driving in a dangerous manner[3] On the evening of 23 February the next year, Mr Affleck was the driver of acar on Ferry Road. Police signalled for the car to stop using red and blue flashinglights and their siren. Mr Affleck accelerated heavily and drove on the wrong side ofthe road at an estimated speed of 120 kph. The speed limit was 50 kph. The road wasbusy with commuters and pedestrians. Mr Affleck continued to drive until he becametrapped in a cul-de-sac blocked by police. Mr Affleck responded by driving onto thefootpath for approximately 20 m in order to evade police.[4] Mr Affleck was located a short time later. He was again driving at a high speed.He swerved towards a police patrol car and pulled the finger at its occupants as hedrove past. Mr Affleck's speed was recorded at 136 kph in a 60 kph zone. Police wentto the vehicle's registered address to conduct enquiries. While they were there,1 Land Transport Act 1998, s 56 — maximum penalty two years' imprisonment or a $6,000 fine,and a minimum mandatory one-year disqualification from holding or obtaining a driver licence.2 Section 35(1)(b) — maximum penalty three months' imprisonment or a $4,500 fine, and aminimum mandatory six-month disqualification from holding or obtaining a driver licence.3 Section 52A(1)(a)(ii) — maximum penalty three months' imprisonment and a mandatory two-year disqualification from holding or obtaining a driver licence.4 Section 32(1)(c) — maximum penalty two years' imprisonment or a $6,000 fine, and a minimummandatory one-year disqualification from holding or obtaining a driver licence.5 New Zealand Police v Affleck [2023] NZDC 14259.Mr Affleck arrived in the vehicle. On seeing police, he reversed out of the drivewayand drove away at high speed.[5] Mr Affleck has two previous convictions for failing to stop for red and blueflashing lights.Driving with excess breath alcohol (third or subsequent)[6] On the night of 22 April 2023, Mr Affleck's driving came to the attention ofpolice because he was swerving across both lanes of the road. He was stopped andevidential breath test procedures were carried out. The test returned a result of 708mcg of alcohol per litre of breath.Driving while licence suspended/revoked (third or subsequent)[7] Mr Affleck was suspended from driving for 28 days from 22 April 2023 as aresult of returning a positive evidential breath test exceeding 650 mcg of alcohol perlitre of breath. He was also subject to bail conditions not to drive any vehicle at thattime.[8] On 11 May 2023 at 12.35 am, Mr Affleck was again observed driving. Hisvehicle was spiked by police and he came to a stop. Mr Affleck ran from the vehicleand was tracked by a police dog before he surrendered himself to police.District Court sentencing[9] Mr Affleck received a sentence indication from Judge Gilbert on 23 May 2023in respect of all charges.6 The Judge indicated a starting point for the first driving withexcess breath alcohol charge that represented his fifth conviction of 10 months'imprisonment with an uplift of two months for the dangerous driving and failing tostop charges from 23 February 2023. He then indicated an uplift of 12 months foreach of the disqualified driving charge, being his fifteenth conviction, from 11 May,and the driving with excess breath alcohol charge on 22 April 2023 that was his sixthconviction. The resulting starting point of three years' imprisonment was then reduced6 New Zealand Police v Affleck DC Christchurch CRI-2022-009-2693, 23 May 2023.to an indicated starting point of two years and six months' imprisonment to take intoaccount totality.[10] At sentencing, the Judge recorded this starting point took into accountMr Affleck's driving history, which includes over a dozen convictions for drivingwhile disqualified and four previous convictions for driving with excess blood/breathalcohol, as well as multiple convictions for failing to stop, dangerous driving and otherdriving offences.[11] In the sentencing indication, the Judge then adopted a 10 per cent uplift for theoffending having occurred whilst on bail and that the first offence for driving withexcess breath alcohol having been committed while subject to a sentence. The Judgeapplied a 20 per cent discount for guilty pleas which had not been entered at the firstopportunity but following a sentence indication.[12] At the time of indicating a 27-month imprisonment starting point, it wasacknowledged there may be personal factors which may warrant a further discount atsentencing. However, the Judge remarked:[11] It may be that any additional mitigating features bring the sentence into the two-year range which would have a different arrangement in terms ofparole or release conditions but given that the last lot of offending involved arecently lengthy period of home detention and that ongoing offending hasresulted, the sentence is going to be a term of imprisonment either way.[12] There is potentially some merit to a Parole Board sentence because itwould give Mr Affleck a better opportunity to get on the drug treatment unitand get some better rehab-based interventions in prison and once he has donethat it may mean that the Parole Board looked more favourably on him for anearly release but as I say I am prepared to have a look at these matters in acouple of months' time.[13] Mr Affleck accepted this sentence indication and pleaded guilty to the charges.He was sentenced by Judge Gilbert on 7 July 2023.7 The Judge was satisfied theindicated 27-month imprisonment sentence was still appropriate but allowed a furtherthree-month reduction for Mr Affleck's background and upbringing. The effective endsentence imposed was thus two years' imprisonment.7 New Zealand Police v Affleck, above n 5.[14] The Judge declined leave to convert the sentence to home detention.Approach to appeal[15] An appeal against sentence may be allowed by this Court only if satisfied therehas been an error in the imposition of the sentence and a different sentence should beimposed.8 As the Court of Appeal noted in Tutakangahau v R when approving theapproach taken by the lower court, a "court will not intervene where the sentence iswithin the range that can properly be justified by accepted sentencing principles".9 Itwill only be appropriate for this Court to intervene and substitute its own views if thesentence being appealed is "manifestly excessive" and cannot be justified upon theapplication of the relevant sentencing principles.10The appealThe appellant's argument[16] On behalf of Mr Affleck, Mr Greaves submitted the starting point adopted bythe sentencing Judge was too high and that home detention ought to have been thesentencing outcome. He argued the starting point of 30 months' imprisonment wasexcessive, although no issue was taken with the 10-month starting point for the firstcharge of aggravated driving with excess breath alcohol, nor with the discountsapplied.[17] Mr Greaves submitted the Judge erred in declining to commute Mr Affleck'ssentence to one of home detention. As the possibility of such a sentence was ruled outat the sentence indication hearing, no potential address where such a sentence couldbe served had been checked. Accordingly, Mr Greaves suggested this Court shouldgrant leave to Mr Affleck to apply for home detention should a suitable addressbecome available.11 He submitted the Judge's primary reason for not consideringhome detention was because of a prior home detention sentence having failed to deterfurther offending by Mr Affleck.8 Criminal Procedure Act 2011, s 250(2) and 250(3).9 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].10 Ripia v R [2011] NZCA 101 at [15].11 Sentencing Act 2002, s 80I.[18] Mr Greaves argued the sentencing Judge had erred in taking that position. Inparticular, he submitted that Mr Affleck's lack of engagement in prior treatment wasnot entirely for reasons within in his control because his ADHD made it difficult, ifnot impossible, for him to engage in rehabilitation and is a condition that drives hisoffending. Mr Greaves argued this meant the sentence, which may have otherwisebeen appropriate, was disproportionately severe. He also submitted that because thefailure of prior interventions was not entirely Mr Affleck's fault, he should be given afurther opportunity to serve a similar sentence which better meets his rehabilitativeneeds, including the imposition of judicial monitoring.The respondent's argument[19] The respondent's position was that the effective sentence of two years'imprisonment was well within the sentencing Judge's discretion.[20] It was submitted the first offence of driving with excess breath alcohol couldhave warranted a 12-month starting point and that a starting point of between 12 and18 months for the second driving with excess breath alcohol would have been justified,in addition to that of 12 months for the driving while suspended charge. It was arguedan uplift of three months would then have been appropriate for the other drivingcharges, including the failure to stop and the dangerous driving. The Crown submittedthe end sentence could be considered generous and one that otherwise would haverendered Mr Affleck ineligible for home detention.Was the starting point too high?[21] Mr Affleck contended the starting point for the totality of his offending wasmanifestly excessive. Because the focus of a sentence the subject of an appeal is onwhether the end sentence is manifestly excessive, it is not crucial to examine how thesentencing Court arrived at the final outcome. The focus needs to be on whether theend sentence was manifestly excessive.[22] I consider it clear the starting points the Judge adopted for the particularcharges before him were well within the available range. As noted by Whata J inSamson v New Zealand Police, in the absence of serious or moderate aggravatingfactors, a charge of driving with excess breath alcohol in its aggravated form, in theabsence of any serious or even only moderately aggravating factors, will ordinarilyattract starting points of nine to 12 months' imprisonment.12 Where there are one ormore seriously aggravating factors, 12 to 18 months will be appropriate.[23] For the first offence on 12 April 2022, Mr Affleck's excess breath alcohol wasmeasured at 473 mcg of alcohol per litre of breath. He was travelling 32 kph over thespeed limit and obviously under the influence of alcohol. It represented his fifthconviction. His last conviction for driving with excess blood alcohol was about a yearbeforehand, although his prior offending of this type dated back to September 2012.While there was no sustained pattern of drink-driving at that stage, a starting point of10 months fell well within the range of available sentence.[24] The second offence on 22 April 2023 involved a higher breath alcohol level(708 mcg of alcohol per litre of breath), being about 1.75 times the legal limit for aconviction offence and is a serious aggravating factor. It was Mr Affleck's sixthconviction and involved a level of dangerous or, at least, poor driving, as he wasobserved swerving over multiple lanes. Importantly, this conviction occurred about ayear after the last offending. It means Mr Affleck has now had a conviction for drinkdriving each year for the last three years in a row. This is more serious offending andtherefore comfortably justifies a starting point of 12 months' imprisonment.[25] The Judge then adopted a 12-month starting point for the driving whilesuspended charge, which was Mr Affleck's 15th conviction for driving whiledisqualified or suspended. This was not directly challenged and accords with earlierauthorities.13 The Judge finally adopted a two-month uplift for the remaining chargesof failing to stop in its aggravated form and dangerous driving. These charges eachcarry a maximum sentence of three months' imprisonment. I consider an uplift of twomonths' imprisonment was warranted, particularly having regard to the seriousness ofhis driving on 23 February 2023.12 Samson v New Zealand Police [2015] NZHC 748 at [15].13 See Penney v New Zealand Police [2016] NZHC 816; and Skudder v New Zealand Police [2018]NZHC 1448.[26] A key aspect of Mr Affleck's appeal was whether an appropriate adjustmentwas made for totality. The Judge made an allowance for that factor by reducing thestarting point from 36 months to 30 months' imprisonment. Mr Greaves contended anappropriate overall starting point allowing for totality would have been 24 months'imprisonment, representing a 10-month starting point for the first driving with excessbreath alcohol charge and then a 14-month uplift for the remaining charges.[27] The following cases provide some guidance:(a) Koopu v New Zealand Police — this case involved an eighth convictionfor driving with excess blood/breath alcohol and a seventh convictionfor driving while disqualified.14 The starting point for the driving withexcess breath alcohol was 16 months' imprisonment, and for drivingwhile disqualified, 12 months' imprisonment was added. This resultedin a starting point of 28 months' imprisonment. However, the case onlyinvolved the one incident.(b) Hughes v R — the appellant was a recidivist offender with 18convictions for driving with excess blood/breath alcohol and 24convictions for driving while disqualified.15 The appellant had drivenwhile disqualified and returned an evidential breath test result of 606mcg per litre of breath. However, his last conviction for similaroffending was some seven years previously. The Judge adopted a two-year starting point for each offence, with the sentences to be servedcumulatively. The sentence was upheld both by this Court and theCourt of Appeal.(c) R v Fraser — the appellant pleaded guilty to his 12th conviction fordriving with excess breath/blood alcohol being two and half times thelegal limit, his 18th conviction for driving while disqualified, andsupplying false details during the course of police procedures.16 The14 Koopu v New Zealand Police [2013] NZHC 1356.15 Hughes v R [2012] NZCA 388.16 R v Fraser CA74/06, 12 June 2006.District Court Judge adopted a starting point of 20 months'imprisonment for all charges, which, not unsurprisingly, on appeal washeld to have been open to the Judge.(d) Turua v New Zealand Police — the appellant pleaded guilty to twocharges of driving with excess breath alcohol and two charges ofdriving while disqualified.17 The driving while disqualified offenceswere the appellant's seventh and eighth offences. The driving withexcess breath alcohol were both third or subsequent offences whichoccurred one month apart. The first was at a level of 745 mcg of alcoholper litre of breath and the second was 656 mcg of alcohol per litre ofbreath. The Judge adopted a starting point of 18 months' imprisonment,which was upheld on appeal.Decision[28] I consider the overall starting point of 30 months' imprisonment was within theappropriate range available to the sentencing Judge. While in Koopu and Fraser thestarting points were lower than what was adopted in this case, notably there are twoincidents of driving with excess breath alcohol in this case and two other incidents ofrepeat disqualified driving and dangerous driving, respectively. A starting point onlytwo months greater than the 28 months applied in Koopu would indicate it is certainlyin range and could be considered generous. Hughes v R is a more serious case in thesense there were far more previous convictions, but there was not the aggravatingfactor of the breaches being so close together and, again, there was only the oneinstance of offending. The starting point of 48 months in that case tends to indicate a30-month starting point was in range for this case.[29] The case of Turua v New Zealand Police appears to represent a more lenientapproach, as there were four charges that involved an offender with a significantcriminal history and very high alcohol readings. However, in light of the otherauthorities, it is not apparent the starting point in this case was out of range. In thiscase, the District Court Judge prioritised the sentencing principles of deterrence and17 Turua v New Zealand Police [2013] NZHC 2913.protection and appears to have adopted a sterner starting point to reflect the fact thatprevious non-custodial sentences have not in the past deterred Mr Affleck. I do notconsider the starting point was excessive.Should leave have been given to apply to convert the sentence to home detention?[30] Leave must be given to apply for home detention under s 80I of the SentencingAct 2002 where a court has sentenced an offender to a short-term sentence ofimprisonment and, at the time of sentencing, the court would have sentenced theoffender to a sentence of home detention if a suitable residence had been available.Home detention is an alternative to a short-term sentence of imprisonment.18 Thecourt must be satisfied that the purposes for which the sentence is being imposedcannot be achieved by any less restrictive sentence.19[31] The following principles have been identified as relevant when determiningwhether a sentence of home detention is appropriate:20(a) Imprisonment is a measure of last resort.(b) A sentence of home detention is a severe sentence, second only to asentence of imprisonment in the hierarchy of offences in s 10A of theSentencing Act.(c) When considering the imposition of a sentence of imprisonment, theCourt must have regard to the desirability of keeping offenders in thecommunity as far as that is practicable and consonant with the safetyof the community.(d) When a Court is considering sentencing for the purposes ofdeterrence, accountability and denunciation, amongst other purposes,it must not impose a sentence of imprisonment unless it is satisfiedthat those purposes cannot be achieved by a sentence other thanimprisonment and no other sentence would be consistent with theapplication of the principles in s 8 of the Act.(e) A sentence of home detention carries with it in considerable measurethe principles of deterrence and denunciation.(f) It is an error of law if the purpose of deterrence has been givencomplete priority without regard to any of the countervailing purposesof sentencing.18 Sentencing Act, s 15A(1)(b).19 Section 15A(1)(a).20 Brittin v New Zealand Police [2017] NZHC 2410, [2018] 2 NZLR 147 at [55] (footnotes omitted).(g) One of the purposes of sentencing is to assist in the offender'srehabilitation.(h) The judge must make a considered and principled choice between thetwo forms of sentence, recognising that both serve the principles ofdenunciation and deterrence, and identifying which of them betterqualifies as the least restrictive sentence to impose taking into accountall the purposes of sentencing.[32] The District Court Judge did not grant leave to apply for home detention. Inaddition to his remarks at the time of providing the sentence indication, set out at [12]above, the Judge summarised his reasons for not doing so at sentencing in thefollowing way:21Your driving is so bad that you need to realise that the response for continuingto put the members of the public in harms way like this will be a term ofimprisonment because that is one thing really in my power to keep thecommunity safe.[33] The focus in the Judge's approach was on denunciation, deterrence and publicprotection. There is clear authority that supports recidivist driving offenders beingsentenced to imprisonment. In Swenson v New Zealand Police, Venning J observedthat "[i]mprisonment for recidivist offending is now the usual, if not necessarily, theinevitable consequence."22 Mr Greaves argued that this case is different because ofMr Affleck's ADHD, and that a sentence of imprisonment would be disproportionatelysevere in his circumstances. He suggested a sentence of home detention with acondition providing for judicial monitoring would sufficiently address Mr Affleck'srehabilitative needs as well as provide for the safety of the community.[34] I accept that Mr Affleck's ADHD may lead him to make impulsive decisionsand that he struggles to regulate his behaviour. These factors were acknowledged bythe District Court Judge when reducing Mr Affleck's sentence for circumstancespersonal to him. The question that arises on the appeal is whether his ADHD rendersa sentence of imprisonment, which would have otherwise been appropriate,disproportionately severe.2321 New Zealand Police v Affleck, above n 5, at [11].22 Swenson v New Zealand Police [2016] NZHC 1625 at [5]; and see R v McQuillan CA129/04,12 August 2004 at [20].23 Sentencing Act, s 8(h).[35] Mr Greaves has not articulated why Mr Affleck's ADHD would make a prisonsentence disproportionately severe other than to assert he is not entirely in control ofhis actions, and therefore should be given a more rehabilitative sentence. Thisamounts to a submission to prioritise the sentencing purpose of rehabilitation over thesentencing purposes that support a sentence of imprisonment. It does not suggest thereis anything particular about Mr Affleck's ADHD that would make a sentence ofimprisonment more difficult for him than if he did not have ADHD.[36] Unfortunately, Mr Affleck's condition has impacted on his ability to engage inrehabilitation initiatives. The pre-sentence report writer observed:Mr Affleck has not completed any rehabilitation programme. Mr Affleck wasexited from his SMP (Short Motivational Programme), in 2019 after only 2sessions. His facilitator stated Mr Affleck's ADHD made it impossible for anypositive engagement. This has been a pattern on previous sentences, with MrAffleck's issues proving to be beyond the scope of Community Corrections toaddress, via any meaningful intervention.[37] Another pre-sentence report recorded:Mr Affleck only has two breaches of community-based sentences. In 2019,whilst subject to intensive [s]upervision, Mr Affleck was exited from the ShortMotivational Programme, with the facilitator stating, "it was impossible forany positive engagement with Mr Affleck because of his negative attitudetowards the programme".[38] Although there are likely challenging factors that make Mr Affleck'srehabilitation more difficult, this does not suggest a sentence of home detention, evenwith judicial monitoring, would be particularly effective for Mr Affleck or assist in hisrehabilitation. The prognosis for any positive outcome appears poor. Perhaps, as theDistrict Court Judge and the pre-sentence report writer noted, the best thing for MrAffleck is a structured rehabilitation programme based in prison, where he can beprovided with close support and structure.[39] It is plain that Mr Affleck presents as a risk to the community's safety.Mr Affleck has repeatedly driven with excess breath alcohol and while disqualified.He can accurately be described as a recidivist offender. He has completed a sentenceof home detention for driving with excess breath alcohol with no apparent effect. Infact, he offended shortly after the end of that sentence. The rest of his currentoffending occurred while Mr Affleck was on bail. Given the nature of the charges ofdriving while disqualified, it is apparent he has a propensity to disregard court orders.[40] While his repeated breaches may partially be the product of his ADHD, it isnotable the pre-sentence report writer observed that Mr Affleck displayed a sense ofentitlement in regard to his current and past offending and gives no thought to theconsequences of his actions. He told the pre-sentence report writer that he remains inthe "system" because the police "continue to charge [him] with nothing charges". Itis apparent he has little, if any, insight into his offending or the risk he poses. He alsostated that he did not care about the consequences of his offending as he will "just goto prison and come out more gangster". There is no discernible motivation to changewhich means the community's protection must be prioritised.[41] In the circumstances, I consider the District Court Judge had little otheralternative but to impose a sentence of imprisonment. While Mr Affleck's ADHDcontributes to his conduct, so do the attitudes he holds about his offending. There isno indication the rehabilitative concerns that arise from his offending cannot bemanaged or appropriately addressed in prison or would make that outcome aninappropriate sentence. A key purpose of sentencing here must be the need to holdMr Affleck to account and to protect the public from his illegal driving.Result[42] The appeal against sentence is dismissed.Solicitors:Crown Solicitor, Christchurch