SPEMANN v DEPARTMENT OF CORRECTIONS [2018] NZHC 2576

SPEMANN v DEPARTMENT OF CORRECTIONS [2018] NZHC 2576 [1 October 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2018-404-259[2018] NZHC 2576BETWEEN GINO SPEMANNAppellantAND DEPARTMENT OF CORRECTIONSRespondentHearing: 1 October 2018Appearances: T J Darby (on behalf of A Hart) for AppellantS A Wilson for RespondentJudgment: 1 October 2018(ORAL) JUDGMENT OF LANG J[on appeal against sentence][1] On 28 November 2017, Mr Spemann was sentenced to five monthsimprisonment on a charge of driving with excess breath alcohol (third or subsequent).Mr Spemann was released from prison on 20 December 2017. Two days earlier, on18 December 2017, he was inducted into the conditions on which he would bereleased. One of these was a condition prohibiting him from consuming alcohol.[2] On 3 May 2018, Mr Spemann was directed to undergo a random alcohol anddrug test administered by the Department of Corrections. This returned a negativeresult for drugs, but a positive result for alcohol. This led to the Department ofCorrections laying a charge of breaching prison release conditions.[3] Mr Spemann pleaded guilty to the charge, and on 12 July 2018Judge Tremewan sentenced him to 12 months supervision.1 The conditions of thesupervision were to be the same as those contained in the release conditions. As aresult, Mr Spemann became subject to a condition not to consume alcohol for a furtherperiod of 12 months from 12 July 2018. Mr Spemann appeals against sentence on thebasis that the sentence of supervision was wrong in principle and/or manifestlyexcessive.The appeal[4] Mr Spemann's first argument is that the Judge erred in imposing a sentence ofsupervision because she failed to have proper regard to the requirements contained ins 46 of the Sentencing Act 2002 (the Act). Section 46 prohibits a court from imposinga sentence of supervision unless it is satisfied that such a sentence would reduce thelikelihood of further offending by the offender through his or her rehabilitation andreintegration into the community. Mr Darby points out that the Judge's sentencingremarks make no reference to s 46. As a result, he submits the Judge failed to takeinto account a mandatory requirement and the sentence she imposed is accordinglyflawed as a result.[5] I do not accept this submission. Judge Tremewan is an extremely experiencedJudge who sits regularly in the Alcohol and Other Drug Treatment (AODT) Court. It1 New Zealand Police v Spemann [2018] NZDC 19113.is clear from her sentencing remarks that she knew Mr Spemann well, having dealtwith him previously in the AODT Court. Her contact with Mr Spemann evidentlytook place prior to the point at which he was sentenced on the charge of driving withexcess breath alcohol on 28 November 2017. I have no doubt that the Judge knew ofthe restriction contained in s 46, and that she believed a sentence of supervision wouldreduce the likelihood of further offending by Mr Spemann.[6] Mr Spemann has now been convicted of driving with excess breath alcohol onno fewer than seven occasions. These form by far the greatest proportion of hisprevious convictions. It is clear that he has a problem with drink driving and that, asthe Judge found, he will continue to pose a risk to the community if he continues todrink and drive.[7] The Judge was obviously anxious to select a sentence that addressed the riskthat he poses to the community. A fine or conviction and discharge, the sentencingalternatives advanced by Mr Spemann's counsel before the Judge, would obviouslynot meet this risk. Given that Mr Spemann has now been prepared to drink and driveon no fewer than seven separate occasions, it is clear that convictions alone are notsufficient to deter him from future offending. I have little doubt that a fine orconviction and discharge would have no appreciable effect on him. Indeed, he is likelyto regard such sentences as being a lenient outcome.[8] In those circumstances it seems to me that a sentence of supervision was awholly suitable outcome because it enables the Corrections authorities to monitorMr Spemann closely in the future. In particular, it will permit them to test himregularly for the consumption of alcohol. That is the circumstance in which he willpresent as a risk to the community because he may well revert to driving whilstaffected by alcohol. Given that background I consider the Judge chose an apt sentenceand the only real issue is whether the sentence was too long.[9] Mr Spemann's release conditions were to expire on 9 September 2018. TheJudge therefore needed to select a sentence of supervision sufficient to ensure he wasmonitored for a reasonable period from the date of sentencing.[10] Section 45(2) of the Act requires a sentence of supervision to be not less thansix months in duration and not more than one year. Mr Darby submits that if a sentenceof supervision was to be imposed, it should have been for a term of around six monthsrather than the maximum of 12 months. In the present case, however, a sentence ofsix months supervision would be of limited practical effect because it would result inMr Spemann being subject to oversight for a little over four months after the expirationof his prison release conditions. In my view that would be insufficient to ensure he isabiding by the prohibition on consumption of alcohol.[11] The sentence imposed by the Judge means that Mr Spemann will now besubject to oversight until 12 July 2019. That is a little over nine months after the prisonrelease conditions expired. I consider that to be an appropriate period for which MrSpemann should continue to be subject to oversight so that his risk of offending againby drinking and driving will be minimised.[12] I therefore accept Ms Wilson's submission for the respondent that themaximum sentence of 12 months supervision was appropriate in the circumstances ofthe present case. It cannot be described as manifestly excessive so as to justify thisCourt intervening on appeal.Result[13] The appeal against sentence is accordingly dismissed.Lang JSolicitors:Hart & Associates, AucklandCrown Solicitor, Auckland