LANGE v NEW ZEALAND POLICE [2020] NZHC 1531

LANGE v NEW ZEALAND POLICE [2020] NZHC 1531 [1 July 2020]IN THE HIGH COURT OF NEW ZEALANDINVERCARGILL REGISTRYI TE KŌTI MATUA O AOTEAROAWAIHŌPAI ROHECRI-2020-425-000011[2020] NZHC 1531BETWEEN GARETH BYRON LANGEAppellantAND NEW ZEALAND POLICERespondentHearing: 29 July 2020Appearances: K P Allan for AppellantR W Donnelly for CrownJudgment: 1 July 2020JUDGMENT OF DUNNINGHAM JThis judgment was delivered by me on 1 July 2020 at 4.00 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate 1 July 2020Introduction[1] The appellant, Mr Lange, pleaded guilty and was sentenced to 14 months'imprisonment on the following charges:(a) driving with excess breath alcohol (third or subsequent);(b) careless driving;(c) unlawful taking of a motor vehicle;(d) driving while suspended;(e) reckless driving;(f) threatening to kill; and(g) refusing to provide a blood specimen (third or subsequent).[2] Mr Lange does not appeal the length of his sentence; the appeal solely concernsthe period of disqualification from holding or obtaining a driver licence.Facts[3] All of the offending occurred on 17 December 2019. At about 3.30 pm thatday Mr Lange was the driver of a vehicle that crashed on State Highway 6, nearWanaka. A police breath test recorded a breath alcohol level of 990 micrograms ofalcohol per litre of breath. As a result, he was suspended from driving a motor vehiclefor 28 days. He was released from police custody around 4.45 pm.[4] At about 5 pm Mr Lange, without authority, entered a parked vehicle that hadkeys in it. The vehicle was valued at around $5,000. Mr Lange took the vehicle anddrove approximately 30 kilometres to where he had crashed his own vehicle earlier.He then attempted to tow his vehicle out of a ditch.[5] Mr Lange then drove a further 37 kilometres to Camp Hill Road at Lake Haweawhere he drove off the road, hit a tree and went through a farm fence. The repairs tothe fence amount to $200.[6] Mr Lange continued about seven kilometres to Riverbank Road, where hereversed into a letterbox while performing a U-turn. He then continued his travelsthrough Wanaka township and on to the Albert Town campground, somenine kilometres from Wanaka.[7] Within the campground Mr Lange did doughnuts, twice losing control anddriving through a standard fence. The cost of the repairs were estimated at $500.[8] Further within the campground Mr Lange drove the vehicle approximately60 – 80 centimetres into a tent, damaging it. When the victim came out of the tent,she recognised Mr Lange as the same person she had made a complaint about inOctober 2019. She heard Mr Lange yelling out "Die bitch, I will fuckin kill you". Hethen drove off.[9] From the campground Mr Lange drove north on State Highway 6 aboutfive kilometres before he crashed and rolled the stolen vehicle. He was arrested bypolice at the scene and taken by ambulance to Dunstan Hospital. Police staff requesteda blood sample, via the attending doctor. Mr Lange refused and is recorded as stating"I'm not giving those blue and yellow cunts nothing. They can all go and get fucked."[10] This series of incidents resulted in the seven charges for which Mr Lange hasbeen convicted and sentenced.District Court decision[11] Judge Farnan, in a decision of 20 April 2020, considered Mr Lange'sculpability to be high.1 This assessment took into consideration Mr Lange's highbreath alcohol level, poor driving, the damage caused by a three hour period of poordriving, unlawful taking of a motor vehicle and driving while suspended. Her Honourcanvassed authority and comparable cases before setting a global starting point for allthe driving offending at 20 months' imprisonment.[12] The Judge applied a one month uplift for the unlawful taking, and a furtherone month uplift for the threatening to kill. A global discount of 35 per cent wasapplied for mental health challenges, remorse and guilty pleas. This brought the endsentence to 14 months' imprisonment.[13] The Judge imposed special conditions relating to drugs and alcohol for a periodof six months beyond the expiry of Mr Lange's sentence. On the careless drivingcharge Mr Lange was convicted and discharged. Reparation in the sum of $6,236 wasordered.1 Police v Lange [2020] NZDC 6594.[14] The Judge also disqualified Mr Lange from holding or obtaining a driverlicence for a total period of 27 months. The structure of the sentence ofdisqualification was: 13 months on the excess breath alcohol charge; eight months onthe reckless driving charge (cumulative); six months on the refusing to give a bloodsample (cumulative) and six months on the driving while suspended (concurrent). Inaddition, the Judge imposed a zero alcohol licence requirement on the drink drivingand refusing to give a blood sample convictions.Principles on appeal[15] Appeals against sentence are allowed as of right by s 244 of the CriminalProcedure Act 2011, and must be determined in accordance with s 250 of that Act. Anappeal against sentence may only be allowed by this Court if it is satisfied that therehas been an error in the imposition of the sentence and that a different sentence shouldbe imposed.2 As the Court of Appeal mentioned in Tutakangahau v R quoting thelower court's decision, a "court will not intervene where the sentence is within therange that can properly be justified by accepted sentencing principles".3 It is onlyappropriate for this Court to intervene and substitute its own views if the sentencebeing appealed is "manifestly excessive" and not justified by the relevant sentencingprinciples.4 "The focus is on the end sentence, rather than the process by which it isreached."5SubmissionsAppellant's submissions[16] Miss Allan, on behalf of Mr Lange, submits the period of disqualification wasmanifestly excessive and the periods of disqualification should have been imposedconcurrently and not cumulatively.[17] Miss Allan states Mr Lange's offending took place across a period ofapproximately three and a half hours. The offending all related to the same period of2 Criminal Procedure Act 2011, ss 250(2) and 250(3).3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].4 Ripia v R [2011] NZCA 101 at [15].5 Islam v R [2020] NZCA 140 at [32].intoxication. The offending was thus a continuing course of conduct and concurrentsentences were appropriate.6[18] Miss Allan refers to a number of cases to support her submission that it ispreferable to impose concurrent disqualification periods and that by not doing that, thetotal period of disqualification was excessive.7(a) In Robarts v Police a disqualification period of 21 months was quashedon appeal and in its place a total disqualification period of 16 monthswas imposed.8 That offending involved two separate tranches of, interalia, dangerous driving, excess breath alcohol, and failing tostop/remain stopped. The appellant also deliberately reversed into apolice car.(b) In Tawa v Police a total disqualification period of 18 months was notdisturbed on appeal.9 The first incident involved the appellant crashinginto a motorcycle. The charges were driving while disqualified (sixth),driving with excess blood alcohol (third or subsequent) and carelessdriving. Two months later the appellant was apprehended while drivingand charged with driving while disqualified.(c) In Stott v Police the total disqualification period of 18 months was notdisturbed on appeal.10 Again, there were two separate incidents, thefirst involved the appellant driving with excess blood alcohol, crossingthe centre line and rolling the vehicle. The second incident was five andhalf months later, the appellant drove to a farm yard and used the fuelpump before driving away at speed.[19] Miss Allan submits that, having regard to these cases, which involve discreteincidents of offending across a timeframe of some months, Mr Lange's period of6 Under the Sentencing Act 2002, s 84(2).7 Robarts v Police [2014] NZHC 666; Dixon v Police HC Christchurch CRI -2006-406-244,19 March 2007.8 Robarts v Police, above n 7, at [26].9 Tawa v Police [2016] NZHC 696.10 Stott v Police [2018] NZHC 1591.disqualification was manifestly excessive. Miss Allan submits a concurrent approachis appropriate and the end period of disqualification ought to have been 18 months.Respondent's submissions[20] Mr Donnelly, for the respondent, submits the end period of disqualificationwas appropriate to reflect the overall scale of the offending. He refers to Hughes vPolice where the appellant drove a public bus dangerously, in heavy rain, whilethree and half times the legal blood alcohol limit.11 The appellant received a totaldisqualification period of three years, which reflected the greater seriousness of thatoffending when compared with the present offending.[21] Mr Donnelly notes that the court is required to order a person to be disqualifiedfrom holding or obtaining a driver licence for more than one year if that person ischarged with driving with excess blood alcohol on a third or subsequent occasion.12[22] Mr Donnelly highlights the following aggravating factors as they relate toMr Lange: he crashed his vehicle; had a breath alcohol level of 990 micrograms;unlawfully took a vehicle immediately after release from police custody; attempted totow his vehicle; drove 37 kilometres before crashing into a tree and fence; crashed intoanother fence and performed doughnuts; and continued to drive to camp site where hethreatened to kill a female.[23] Mr Donnelly contends that although the appellant in Hughes was facing a moresevere charge than that of Mr Lange, and potentially created a greater risk to the public,Mr Lange had a higher alcohol level13 and the damage caused was more severe. Nodamage was caused in Hughes.[24] Further, it is submitted that there are two distinct parts to Mr Lange's driving;that which occurred before he was at the police station and that which occurredafterwards using the stolen vehicle. Mr Donnelly submits that each would have11 Hughes v Police HC Napier, CRI-2010-441-17, 3 August 2010.12 Land Transport Act 1998, s 56(4)(b).13 This appears incorrect. Mr Lange's breath alcohol level was 990 mcg per litre, approximatelytwo and a half times the legal limit whereas Mr Hughes was three and a half times the legal limit.warranted disqualification in excess of the minimum and would have readily justifiedterms of 18 months. Accordingly, the disqualification period imposed was withinrange.Analysis[25] Where a person is convicted of driving with an excess breath or blood alcoholconcentration on a third or subsequent occasion, the court must order the person bedisqualified from holding or obtaining a driver licence for more than one year.14Mr Lange has two previous convictions for driving with excess breath alcohol, one inFebruary 2019 and one in July 2002. Accordingly, the December 2019 charge is histhird offence, and he had to be disqualified from driving for at least a year.[26] In addition, there were three other charges faced by Mr Lange which triggeredmandatory periods of disqualification. Where a person is convicted of refusing topermit a blood specimen to be taken when that person has been convicted at least twicepreviously of certain other offences under the Land Transport Act, including s 56(1)of driving with excess breath or blood alcohol, the court must impose a disqualificationperiod of 12 months or more.15 It appears in this case the Judge did not realise thatMr Lange qualified for a minimum one year disqualification but rather, understoodthis offence only required a six month disqualification. Furthermore, the charges ofreckless driving and driving while suspended both attracted a mandatorydisqualification period of six months.[27] Disqualification from driving is not only a punishment, but also a means ofprotecting the public from further risk.16 There is clearly a need to protect the publicfrom Mr Lange given the following aggravating factors of his driving offending:(a) Mr Lange had a very high level of breath alcohol, nearly two and a halftimes the legal limit.14 Land Transport Act, s 56(4)(b).15 Sections 60(1)(c) and 60(3). This was noted in both the summary of facts and in the defendant'ssubmissions in the District Court.16 McEachen v Police [1995] 2 NZLR 251, (1994) 12 CRNZ 440 (HC).(b) Mr Lange was disqualified from driving at the time of his release fromthe police station. In my view this is a serious aggravating factor.(c) The manner of Mr Lange's driving can be characterised as extremelypoor and continued over a three hour period. I consider this to beanother serious aggravating factor.(d) Mr Lange had two previous drink driving convictions, includingone earlier in 2019.It was fortunate that no one was seriously injured, or killed, through Mr Lange'ssustained reckless driving.[28] The Judge imposed the minimum disqualification period prescribed by statuteon the charges of drink driving, refusing to permit a blood specimen to be taken,driving while suspended and reckless driving, although, as I noted above, sheunderstood the disqualification period for refusing to permit a blood specimen to betaken was six months, rather than 12 months. The only charge which was notprescribed by statute was the charge of reckless driving where, in my view, thedisqualification period imposed of eight months was clearly justified.[29] The sum of the disqualification periods imposed by the judge was 33 months.However, by imposing the driving while suspended sentence concurrently, the periodof disqualification was only 27 months. In my view, that is proportionate to thecombined statutory minimum periods of disqualification of 36 months on the chargesMr Lange faced.[30] Miss Allan submits that the sentences ought to have been imposedconcurrently. A concurrent sentence may be appropriate where the offences are of a"similar kind and are a connected series of offences."17 However, where offences arisefrom the same poor driving incident, the court is not precluded from imposingcumulative sentences.1817 Sentencing Act, s 84(2).18 Hughes v R [2012] NZCA 388 at [22].[31] In my view, while the offences occurred within the same time period, they aredistinct in nature, and the combination of concurrent and cumulative sentences whichthe Judge adopted was clearly open to her. The driving with excess breath alcoholcharge was laid after Mr Lange crashed his vehicle and was taken into police custody.The reckless driving charge was laid as a result of a sustained period of very poordriving after he had been suspended from driving, involving numerous incidents ofdamaging property. The refusal of a blood specimen occurred once Mr Lange had,again, crashed a vehicle and was taken to hospital. On each occasion Mr Lange madea deliberate choice to embark on further offending despite an intervening event whichshould have stopped him. The Judge then sentenced concurrently on the driving whilesuspended charge which was connected to and resulted directly from the charge ofdriving with excess breath alcohol and, again, that was clearly appropriate.[32] However, the real issue is whether the total period of disqualification wasdisproportionate to the offending regardless of how the sentence was structured. Inmy view, even if the periods of disqualification were to be imposed concurrently, thesentence would need to have been significantly uplifted to reflect the totality of theoffending. I do not consider uplifts to reach a total of 27 months disqualification aredisproportionate to the culpability of the offending in this case, particularly given thestatutory mandatory minimum periods of disqualification specified.[33] In reaching this conclusion, I have had regard to the cases Ms Allan referredme to. In the case of Robarts, the offences were Mr Robart's first driving relatedconvictions and his breath alcohol limit was "over the legal limit for someone who isunder 20 but under the limit for an adult".19 The period of disqualification wasadjusted to take into account Mr Robart's "age and circumstances and the othersentences imposed upon him".20 I consider Mr Lange is in a different category, beinga repeat drink drive offender. I note in the cases of Stott21 and Tawa,22 the period ofdisqualification was not challenged on appeal and, therefore, is not the subject ofdiscussion. However, I note that neither of those cases involved as many charges as19 Robarts v Police, above n 7, at [11].20 At [26].21 Stott v Police, above n 10.22 Tawa v Police, above n 9.Mr Lange faces with mandatory minimum periods of disqualification. Thus, in myview, none of these cases demonstrate the period of disqualification is out of range.[34] Finally, while I accept that lengthy periods of disqualification can becounterproductive, such cases usually involve repeated periods of disqualificationover several years.23 This is not such a case.Conclusion[35] In my view the only error made in sentencing was to Mr Lange's advantage24and the total disqualification period imposed was justified, whether the sentence wasimposed largely consecutively, as the Judge did, or entirely concurrently as proposedby the appellant.[36] The appeal is dismissed.Solicitors:Todd & Walker, QueenstownPreston Russell, Invercargill23 As discussed in cases such as Maeva v Police HC Auckland CRI-2010-404-402, 11 March 2011,in addressing the purpose of s 94, Land Transport Act 1998.24 Being the assumption that a six month, rather than a 12 month disqualification period applied tothe charge of refusing to give a blood sample.