MOORE v POLICE [2019] NZHC 2408

MOORE v POLICE [2019] NZHC 2408 [23 September 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-404-000338[2019] NZHC 2408BETWEEN GARETH WILLIAM MOOREAppellantAND NEW ZEALAND POLICERespondentHearing: 3 September 2019Appearances: S B E Guest and G Harvey for the AppellantT Stuart for the RespondentJudgment: 23 September 2019JUDGMENT OF HINTON JThis judgment was delivered by me on 23 September 2019 at 4.30 pmRegistrar/Deputy RegistrarSolicitors:Public Defence Service, North ShoreMeredith Connell, Auckland[1] Gareth Moore pleaded guilty to the following charges:(a) driving with excess breath alcohol (third or subsequent);1(b) failing to stop;2(c) dangerous driving;3 and(d) assaulting a police officer.4[2] On 2 August 2019, Judge Orchard in the District Court at North Shoresentenced him to six months' imprisonment, with both standard and special releaseconditions.5 The Judge also disqualified Mr Moore from holding or obtaining adriver's licence for 28 days after his release date. On the dangerous driving charge, hewas sentenced to one month's imprisonment (concurrent) and six months'disqualification, and on the assaulting a police officer charge, he was also sentencedto one month's imprisonment (concurrent).[3] Mr Moore submits the sentence imposed was manifestly excessive. He seeksthat the sentence of imprisonment be cancelled and replaced with an electronicallymonitored sentence by way of community detention.Background[4] On 24 January 2019, Mr Moore was driving on Whangaparaoa Road,Gulf Harbour, Auckland on the wrong side of the road, and overtaking other vehicles.[5] A marked Police patrol car attempted to stop him. Mr Moore refused to stopand continued to drive at 80 kilometres per hour in a 50-kilometre per hour zone.Although his speeds fluctuated from that point, Mr Moore continued to evade thepatrol car.1 Land Transport Act 1998, s 56(1).2 Section 52A(1)(a)(ii).3 Section 35(1)(b).4 Summary Offences Act 1981, s 10.5 New Zealand Police v Moore [2019] NZDC 15291 at [16].[6] Mr Moore eventually pulled into a driveway. He exited the vehicle and beganto walk towards the patrol car. He was acting aggressively, screaming and swearingat the police officers.[7] During the process of his arrest, Mr Moore kicked one of the arresting officersmultiple times in the legs while he was trying to get back up.[8] Evidential breath test procedures were carried out. A reading of768 micrograms of alcohol per litre of breath was obtained.[9] This is Mr Moore's third drink-driving conviction. The earlier convictionsresulted from offending on 20 November 2016 (833 mg) and 12 January 2001(523 mg). He also resisted Police, was threatening in his behaviour and drovecarelessly in 2018.District Court sentencing decision[10] Judge Orchard took the charge of driving with excess breath alcohol, third orsubsequent, as the lead charge.[11] The Judge identified the following aggravating features of the offending:[9] It was driving and general behaviour which took place over aprotracted distance, so a period of time, and it put on at least two occasionsinnocent members of the public at serious risk of injury or death in my view.[10] The only thing between you and your driving and tragedy was the factthat first of all the police car avoided having a head-on collision with you andsecond, in relation to the blind corner, happily no-one was coming in the otherdirection, but that was through sheer good luck and not good management.You were driving with 768 aboard, which is a very high level.[12] Given those factors, and the fact it was Mr Moore's third conviction for drivingwith excess breath alcohol, the Judge stated, " a starting point of imprisonment isappropriate". The Judge adopted a starting point of nine months' imprisonment.[13] The Judge then discounted the sentence for "any mitigating factors", includingthe fact that Mr Moore has been employed and "other positive aspects put forward inthe pre-sentence report". Lastly, the Judge applied a discount of 25 per cent forMr Moore's guilty pleas. This was a total discount of three months' imprisonment andequated to a discount of 11 per cent for mitigating factors and then 25 per cent for theguilty pleas.[14] However, the Judge was "not prepared to step back from a sentence ofimprisonment". She stated:[15] In my view, Mr Moore, the time has well and truly come where youneed to be held accountable for your offending. Where you need to understandthat if there is further offending of this nature it will be met with a sentencewhich is more directed at denunciation and deterrence than rehabilitation, andin those circumstances the sentence is going to be imprisonment.[15] Therefore, the Judge sentenced Mr Moore to six months' imprisonment on thelead charge of driving with excess breath alcohol, third or subsequent. The Judge alsostated:[26] You are not granted leave to apply for home detention and the standardrelease conditions to sentence expiry date and special release conditions as perpre-sentence report also. And you are also disqualified from holding orobtaining a driver's licence for 28 days commencing 28 days after your releasedate. Thereafter you will be eligible to apply for an alcohol interlockdisqualification and after one year you will be eligible to apply for azero-alcohol licence.[16] I have already set out the other concurrent sentences. On the charge of failingto stop, Mr Moore was convicted and discharged.Legal principles[17] Section 250(2) of the Criminal Procedure Act 2011 provides that the Courtmust allow an appeal against sentence if it is satisfied that:(a) for any reason, there is an error in the sentence imposed on conviction;and(b) a different sentence should be imposed.[18] A sentence may be set aside where it is manifestly excessive. Whether asentence is manifestly excessive depends on the end sentence, not the process bywhich the sentence was reached. The Court will not intervene where the sentence iswithin range. But, if the Court determines that the sentence imposed is manifestlyexcessive, it will form its own view of the appropriate sentence.[19] The Court of Appeal in Fraser v R said:6[20] There is nothing in the Sentencing Act suggesting a presumption foror against imposing home detention rather than imprisonment, only thesentencing principle that the Court must impose the least restrictive outcomeappropriate in the circumstances. Further, this Court has made it clear that anappeal against a refusal to grant home detention is not an opportunity to reviewor revisit the merits. What the appellant must do is demonstrate an error bythe Judge in exercising his sentencing discretion.(citations omitted)Grounds of appeal[20] Mr Moore submits the sentence was manifestly excessive for three reasons:(a) Judge Orchard relied on an inaccurate pre-sentence report;(b) she failed to appropriately account for his personal mitigatingcircumstances; and(c) she erred by failing to consider the imposition of anelectronically-monitored sentence.[21] However, in oral submissions, Mr Moore advances only the last of these. Heaccepts little turns on the first point and while one could quibble over the discount of11 per cent allowed by the Judge, it is not too short of the potential mark.Failure to impose electronically-monitored sentence[22] I have decided that the Judge did err in failing to impose anelectronically-monitored sentence, which I consider should have been home detention,not community detention as proposed.6 Fraser v R [2013] NZCA 250.[23] I am conscious that this is not the first time that Mr Moore is before the Courtsin relation to drink-driving, careless driving, and altercations with Police. I havealready referred to his drink-driving convictions on 20 November 2016 (833 mg) and12 January 2001 (523 mg). He also resisted Police while driving carelessly in 2018.I accept that the present charges demonstrated a complete disregard for the safety ofothers, and I note the Judge's comments in that regard.[24] I also agree with the Judge that the end sentence imposed should reflect theneed to denounce this conduct and deter Mr Moore and others from committing similaroffences going forward.[25] However, I agree with Mr Moore that those purposes have overwhelmed orpre-empted the decision. Further, I consider those purposes can be served just asreadily in this case by a sentence of home detention. At the same time, home detentionwill better serve the other principles of the Act of supporting rehabilitation andreintegration, and imposing the least restrictive sentence possible.[26] I note:(a) Mr Moore has not previously received a sentence of home detention,let alone imprisonment.(b) Mr Moore has longstanding mental health issues – not well-suited toprison.(c) The pre-sentence report-writer recommends a sentence of intensivesupervision and community detention (which seems too light).(d) Mr Moore's parents' home at Papamoa is an available address. He alsohas ongoing support in the community.(e) I do not agree with the report-writer or the Judge, that Mr Moore hasfailed to address his rehabilitation needs or that it could be said that hisoffending is escalating simpliciter. It is true that his record hasdeteriorated over the last three years, but that may be explained partlyby the break-up of his relationship in 2016. Also, he did at leastcomplete a CADS Getting Started programme in May 2018. It is highlyrelevant that for 15 years prior to 2016, Mr Moore had only two minordishonesty convictions. He should not be written-off.(f) I consider it also relevant that Mr Moore is genuinely remorseful.Conclusion[27] Weighing up all of these points, I consider the Judge was in error and the endsentence of six months' imprisonment imposed by her was manifestly excessive. TheJudge should have exercised her discretion to convert Mr Moore's sentence to homedetention.[28] The appeal is therefore allowed and the prison sentence of six months on thedriving with excess breath alcohol charge is commuted to home detention ofthree months. I indicated I might allow less of a deduction, but I have decided giventhe prison time served, I should halve the period in the usual way.[29] Mr Moore has already served over seven weeks in prison.[30] I therefore order that the sentence of home detention is three months. Thenumber of days Mr Moore has served in prison is to be subtracted from that sentence.The sentence is to be effective from today, on the terms and conditions set out in thepre-sentence report and on the additional condition that Mr Moore is not to drive whileon home detention.7 All other penalties imposed by the Judge, remain undisturbed.As I understand it, the alcohol interlock order will automatically take effect once theperiod of home detention has ended.7 As noted earlier, Mr Moore seems to have been disqualified for six months anyway, but as counselseemed uncertain, I add this condition.[31] Hopefully, Mr Moore will be able to attend a further alcohol prevention course.AA seems to be the most effective. He needs to work hard on rehabilitation and heneeds serious help.----------------------------------------------------Hinton J