WILKINS v POLICE [2023] NZHC 313

WILKINS v POLICE [2023] NZHC 313 [28 February 2023]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI-2022-419-000073[2023] NZHC 313BETWEEN GEOFFREY DENE WILKINSAppellantAND NEW ZEALAND POLICERespondentHearing: 23 February 2023Counsel: SD Taylor for AppellantBB Harris for RespondentJudgment: 28 February 2023JUDGMENT OF DOWNS JThis judgment was delivered by me on Tuesday, 28 February 2023 at 9 am.Registrar/Deputy RegistrarSolicitors/Counsel:Crown Solicitor, Hamilton.SD Taylor, Hamilton.The appeal[1] Geoffrey Wilkins drove with excess breath alcohol, that being a third orsubsequent offence.1 He received a sentence of 12 months' imprisonment.2Mr Wilkins appeals sentence.[2] An appeal in this context must be allowed if there is an error in the sentenceand a different one should be imposed.3 Or, in short, if the sentence is manifestlyexcessive.4Background[3] The offending occurred 28 March 2022, at 8.35 pm.[4] Mr Wilkins was driving on a residential street in Hamilton. He crossed thecentre line and drove on the wrong side of the road. He almost caused a collision,presumably with an oncoming vehicle.5 Police attended. Mr Wilkins blew776 micrograms of alcohol per litre of breath. Mr Wilkins had six previousconvictions for like offending:Date of offence Offence Reading11 December 2015 Breath alcohol over 400 (3+) 6146 September 2003 Breath alcohol over 400 (3+) 79515 February 2000 Breath alcohol over 400 (3+) 5344 December 1999 Breath alcohol over 400 (3+) 9156 June 1992 Unlicenced driver – breath alcohol over 400 4764 May 1991 Breath alcohol over 400 8001 Land Transport Act 1998, s 56(1) and (4).2 Police v Wilkins [2022] NZDC 19401.3 Criminal Procedure Act 2011, s 250.4 Tutukangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.5 The summary of facts is silent on the nature of the possible collision.[5] Judge D J McDonald adopted a starting point of 14 months' imprisonment andadded two months for Mr Wilkins' history. The Judge deducted 25 percent forMr Wilkins' guilty plea. He declined to commute the sentence to home detention.A précis of Mr Wilkins' case[6] Mr Wilkins contends the starting point was too high and the upliftinappropriate. He argues the Judge should have discounted the sentence in recognitionof alcohol dependency and commuted the sentence to home detention.Analysis[7] Mr Wilkins' contention the starting point was too high presupposes theoffending falls within the first category identified by Whata J in Samson v Police.6It and more serious categories are below:7(a) No seriously or only moderately aggravating factors, 9-12 months;(b) One or more seriously aggravating factors, 12–18 months;(c) Multiple offences with seriously aggravating factors, 18-20 months; and(d) Multiple offences and very serious aggravating factors (ie offending ofthe worst kind), 20–24 months.[8] On behalf of Mr Wilkins, Mr Taylor contends the first category was appropriatebecause many of Mr Wilkins' previous convictions are dated and his breath alcohollevel was not that high.[9] Mr Taylor is correct many of the convictions are dated. However, thesubmission overlooks the obvious: Mr Wilkins has a pattern of driving while underthe influence of alcohol; and his behaviour has not changed despite the passage of timeor sanction. Furthermore, Mr Wilkins' reading was high, an expression rightly usedby Judge McDonald. Indeed, Mr Wilkins was almost twice the legal limit.8 Anotheraspect meant the offending was not in the first category: Mr Wilkins' driving. As willbe recalled, Mr Wilkins crossed the centre line and almost caused a collision. For all6 Samson v Police [2015] NZHC 748.7 At [15(a)–(d)] (footnotes omitted).8 Land Transport Act, s 56(1).of these reasons, the offending sat within the second Samson category and toward orat its upper end.[10] This observation pre-empts Mr Taylors' next submission, which is that theJudge erred by adding two months to the starting point for Mr Wilkins' history. I agreethis approach risked double-counting because Mr Wilkins' history was one of thefactors warranting placement in the second category. However, even with the uplift,the global starting point was 16 months' imprisonment. As observed, the offendingsat within the second category and toward or at its upper end.[11] Mr Taylor contends the Judge should have discounted the starting point byfive percent because Mr Wilkins is dependent on alcohol. On behalf of the respondent,Mr Harris contends the alleged dependency is self-reported, hence not established.I disagree. The commission of this offence, Mr Wilkins' record, and the observationsof his probation officer elide to confirm Mr Wilkins has a problem with alcohol.[12] It is not obvious a discount for alcohol dependency is appropriate in thiscontext. Drink-driving is criminal because of the risk of harm inherent to the activity.It is therefore not clear alcohol dependency is truly mitigatory. In response, Mr Taylorinvokes dependency in a drugs context, which may mitigate drug-dealing if theoffender has committed the offence to feed a habit.9[13] One response to this is to invoke another analogy: intellectual or mentalimpairment can mitigate a sentence, but does not always do so for the reason identifiedby the Court of Appeal in R v Wright:10. It may suggest a more or a less risk of a repetition of offending, so as todirect particular attention to issues of personal deterrence or public protection.And these considerations must be synthesised with the sentencing elements ofdenouncing the fact of violence in our society and acknowledging grievouseffects on victims.Put directly, if dependency on alcohol is a feature of a defendant's recidivist drink-driving, it is not clear the factor is necessarily mitigatory. However, even if it were,9 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.10 R v Wright [2001] 3 NZLR 22 at [22].the starting point of 16 months' imprisonment was readily available to the Judge forreasons explained earlier.[14] This leaves the contention the Judge should have commuted the sentence tohome detention. Mr Taylor did not press this argument because the passage of timesince sentencing has largely overtaken the point. For completeness, I address thesubmission, which is that home detention should have been imposed given Mr Wilkinshad not been imprisoned before, had pleaded guilty, and was responsible forsupporting his 81-year-old mother.[15] These factors provided support for a sentence of home detention. As againstthem, the offending was serious; could well have resulted in serious injury or worse;Mr Wilkins has a record of driving while drunk; and his reading was high. Thepre-sentence report also provided support for the Judge's approach. It said Mr Wilkinshad: little insight into the dangers posed by his offending or the implications ofexcessive alcohol consumption. Mr Wilkins appeared to believe that he wasable to ascertain the level of impairment that would still allow him to safelydrive.The report added Mr Wilkins' thinking: implies a cognitive dissonance in relation to his alcohol consumption anddriving, and shows a clear attitude of self-entitlement, poor decision makingand lack of consequential thinking.[16] The combination meant it was open to the Judge to prefer imprisonment tohome detention and by so doing, to focus on the imperatives of denunciation,deterrence, and community protection.Result[17] The appeal is dismissed.Downs J