BECK v NEW ZEALAND POLICE [2021] NZHC 2221

BECK v NEW ZEALAND POLICE [2021] NZHC 2221 [31 August 2021]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2021-409-000058[2021] NZHC 2221BETWEEN GRANT JOHN BECKPlaintiffAND NEW ZEALAND POLICEDefendantHearing: 27 August 2021Appearances: K E Booker for AppellantJ H Whitcombe for RespondentJudgment: 31 August 2021JUDGMENT OF DOOGUE JThis judgment was delivered by me on 31 August 2021 at 2.30 pm.Registrar/Deputy RegistrarDate:Introduction[1] The appellant, Mr Grant Beck, was sentenced1 by Judge Garland to 18 months'imprisonment on two charges of driving with excess breath alcohol third orsubsequent2 and one charge of driving at a speed dangerous to the public.3 The Judgedisqualified Mr Beck from driving for a year and a day and imposed an alcoholinterlock sentence.[2] Mr Beck appeals that sentence on the basis that the Judge erred by adopting astarting point that was too high, failing to provide appropriate discounts to reflectMr Beck's personal mitigating factors and declining to commute the end sentence toone of home detention.Background facts[3] Mr Beck was stopped at a police checkpoint on 2 July 2020 and subjected toan evidential breath test. He gave a positive result of 736 micrograms of alcohol perlitre of breath. He stated he had drunk five to six stubbies of beer.[4] Mr Beck pleaded guilty to a charge of driving with excess breath alcohol thirdor subsequent and was remanded on bail pending sentencing on 15 January 2021.[5] On 6 February 2021 at 4.30 pm, while on bail, Mr Beck drove his late modelJaguar vehicle down State Highway 75 between Gold Links Drive and Tancreds Roadat a steady 200 km/hr. Road conditions were dry with clear visibility and there werea number of other road users.[6] State Highway 75 between Gold Links Drive and Tancreds Road is a straighttwo lane stretch of road governed by a 100 km/hr speed limit that bisects a semi-rural/residential area. There are numerous driveways, the majority of which are eitherobscured or made invisible by overhanging trees and plant growth, that provide access1 Police v Beck [2021] NZDC 5727.2 Land Transport Act 1998, ss 56(1) and 56(4); maximum penalty two years' imprisonment.3 Land Transport Act, s 35(1)(b); maximum penalty three months' imprisonment.to the stretch of road for residential property and business owners in the area. Advisorysigns alerting traffic to side roads giving access to sports clubs are also present.[7] As Mr Beck sped down the road he was detected by a police officer in astationary highway patrol vehicle. Police indicated Mr Beck should stop with lightsand siren and after a distance he complied. He underwent roadside breath testingwhich produced a result of 747 micrograms of alcohol per litre of breath.District Court decision[8] Judge Garland considered the leading authorities on drink-driving4 and themore recent High Court decision of Samson v Police.5 As aggravating factors inrelation to the first charge, the Judge considered the fact Mr Beck was tested at nearlythree times the legal limit and that it was his seventh conviction for drink-driving. TheJudge did, however, note there was a gap of 13 years since his last previous similaroffence.[9] In relation to the second incident, the Judge considered the fact Mr Beck wasagain tested at three times the legal limit, the seven-month gap between this and thelast charge, the fact this was Mr Beck's eighth conviction for drink-driving and that hewas driving at an extremely high speed. The Judge found there was an extremely highrisk to the public. The Judge summarised this incident as nothing short of a recipe fordisaster. He also found Mr Beck had an underlying alcohol problem.[10] The Judge considered the fact fines, periodic detention, disqualification,community work, supervision, home detention and imprisonment have all beenimposed on Mr Beck in the past. He concluded that the Court has tried a wide rangeof sentencing options to change Mr Beck's behaviour without success.[11] The Judge noted that the Court had a maximum penalty of 48 months'imprisonment available to it for the two drink-driving offences and, placing Mr Beck's4 Clotworthy v Police (2003) 20 CRNZ 439 (HC); R v McQuillian CA129/04, 12 August 2004; andR v Stoves CA264/06, 7 November 2006.5 Samson v Police [2015] NZHC 748.offending into the fourth category in Samson, he adopted a starting point of 24 months'imprisonment.[12] In terms of mitigating factors, the Judge gave a six-month (25 per cent)discount for Mr Beck's guilty plea. That resulted in an indicative sentence of18 months' imprisonment.[13] The Judge referred to the fact that Mr Beck was granted leave for homedetention on the only previous occasion that imprisonment had been imposed. TheJudge opined that leave was granted to Mr Beck to serve that sentence by way of homedetention to enable rehabilitative options to be facilitated.[14] Next, the Judge considered whether to impose home detention but found itwould be insufficient to meet the purposes and principles of sentencing in this case.He expressed the view that had the offending stopped with the first incident he wouldhave been minded to impose home detention, but because of the second incident homedetention was not an appropriate sentence. The Judge found rehabilitative interventionwould be best delivered as part of release conditions after Mr Beck had served a termof imprisonment. Although he did not expressly state why it is reasonable to do so, Iinfer that Mr Beck's failure to rehabilitate when given a sentence of home detentionfor that specific purpose previously alongside the seriousness and propinquity of themost recent set of offending required increased deterrence as part of the hierarchy ofsentencing. In addition, that rehabilitation be part of post-release conditions to ensuresignificant oversight by authorities of Mr Beck's compliance.[15] Mr Beck's end sentence was 18 months' imprisonment, an alcohol interlockand disqualification from driving for a year and a day.Principles on appeal[16] 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 there hasbeen an error in the imposition of the sentence and that a different sentence should beimposed.6 As the Court of Appeal mentioned in Tutakangahau v R, quoting the lowerCourt's decision, a "court will not intervene where the sentence is within the rangethat can properly be justified by accepted sentencing principles".7 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.8SubmissionsAppellant's submissions[17] Mr Booker, on behalf of Mr Beck, submitted the Judge erred in three respects:(a) adopting a starting point that was too high;(b) failing to provide appropriate discounts to reflect Mr Beck's personalmitigating factors; and(c) not commuting the end sentence to home detention.[18] Mr Booker acknowledged there is no tariff decision governing excess breathalcohol offending but submitted Clotworthy v Police,9 as affirmed by Whata J inSamsom v Police,10 outlines several potentially aggravating and mitigating factors ofsuch offending. He submitted the aggravating factors here are the multiple charges,Mr Beck's high breath alcohol level and his recidivism.[19] Mr Booker referred to Whata J's comments in Samson that starting pointsbeyond 12 to 18 months' imprisonment are typically reserved for cases involving"multiple offences with seriously aggravating factors" or "multiple offences and veryserious aggravating factors". Mr Booker submitted this was not one of those cases.6 Criminal Procedure Act 2011, ss 250(2) and 250(3).7 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].8 Ripia v R [2011] NZCA 101 at [15].9 Clotworthy v Police, above n 4.10 Samson v Police, above n 5.He accepted the fact that there are two charges is a serious aggravating factor, butsubmitted the other identified factors are moderate only.[20] Mr Booker referred to Deadman v Police,11 Ching-Joyce v Police12 and Wilsonv Police13 and submitted the appropriate starting point was in the range of 12 to 18months' imprisonment.[21] Turning to mitigating factors, Mr Booker argued the Judge should have granteda discount for Mr Beck's remorse and capacity for rehabilitation. Mr Booker referredto the pre-sentence report writer noting Mr Beck had expressed regret andembarrassment regarding the offending. Mr Beck has also engaged with drug andalcohol rehabilitation. Mr Booker submitted these factors warranted a discount in therange of 10 per cent.[22] Mr Booker also submitted the Judge ought to have commuted the sentence ofimprisonment to home detention. He referred to the mitigating factors outlined byWhata J in Samsom14 and argued the following were present here:(a) high level of remorse;(b) genuine attempts to address the underlying causes of the offending;(c) lack of prior sentences of imprisonment; and(d) lengthy gaps between current and prior offending.[23] Mr Booker identified the Judge's focus was on imposing a deterrent sentencebut submitted that was inappropriate in light of Mr Beck's previous good response tocommunity-based sentences and his personal circumstances. Mr Booker did concedethat there was no evidence of Mr Beck having done anything to address his alcohol11 Deadman v Police [2021] NZHC 1406.12 Ching-Joyce v Police [2016] NZHC 1019.13 Wilson v Police [2019] NZHC 2066.14 Samson v Police, above n 5.dependence, either when previously given a sentence of home detention to allow himto do so nor immediately after the first of the two most recent offences.Respondent's submissions[24] Mr Whitcombe, for the Crown, submitted that in isolation the second chargewould have fallen within the top band of Samson, attracting a starting point of 20 to24 months' imprisonment. He suggested a higher starting point could possibly havebeen justified and identified the following aggravating factors:(a) high breath alcohol reading;(b) multiple offences in close succession; and(c) dangerous driving.[25] Mr Whitcombe submitted that it was appropriate for the Judge not to give creditfor Mr Beck's remorse or capacity for rehabilitation. He referred to R v Ngamo, wherethe Court of Appeal indicated it would be open to a Judge to place little weight onremorse in the context of an extensive criminal history.15 Mr Whitcombe submittedthe Judge was correct to prioritise the purposes of deterrence, denunciation and publicprotection, having regard to Mr Beck's history and the gravity of the offending.Finally, he submitted it was open to the Judge to impose a short term of imprisonmentas the least restrictive outcome.DiscussionStarting Point[26] Whata J did not purport to provide a tariff decision for driving with excessbreath alcohol offending.16 His summary of aggravating and mitigating factors inSamson is, however, substantially helpful.15 R v Ngamo [2009] NZCA 512 at [9].16 Samson v Police, above n 5, at [17].[27] Here, in relation to the second and more serious incident, the followingseriously aggravating factors are present:(a) high level of intoxication;(b) dangerous driving;(c) very close proximity to previous driving with excess breath alcoholoffending (the first charge); and(d) a prolonged history of drink driving offending.[28] Whata J in Samson regarded all these aggravating factors as serious.17 So do I.In the present case all the aggravating factors Whata J listed as "seriously aggravating"are present.18[29] The dangerous driving in this case is a very serious aggravating factor.Mr Beck's grossly excessive speed of 200 km/hr, in a populated area on a road in useby others while highly intoxicated, was clearly dangerous. I agree with the Judge'scharacterisation of the second incident as a recipe for disaster. It was fortune, notbehaviour, that shaped the outcome of the incident on 6 February.[30] The second incident is further aggravated by the fact it occurred while Mr Beckwas on bail and awaiting sentence.[31] Having regard to those facts, the Judge was right to place the offending in the20 to 24-month category in Samson.[32] There are no mitigating factors of the offending. I do note the fact Mr Beck'sfive previous convictions for driving with excess blood alcohol (and one for refusingan officer's request for a blood specimen) are dated, with the most recent (before thesetwo) occurring in 2007. Notwithstanding the length of time between the current and17 Samson v Police, above n 5, at [16].18 At [16].previous convictions, the previous convictions still amount to a prolonged history ofdrink-driving offending[33] I consider the Judge was correct when he said the maximum penalty availableto the Court was 48 months' imprisonment on the two driving with excess breathalcohol charges. In fact, the maximum penalty available was 51 months'imprisonment, taking into account the third charge of driving at a speed dangerous tothe public.[34] When a global starting point is set for all of the offending, as was done here,as opposed a starting point for one charge followed by uplifts for other charges, theCourt ought to have regard to the maximum penalty available rather than the maximumpenalty of one charge amongst multiple.[35] The global starting point approach is preferable in my view as it amelioratesthe risk of double counting multiple charges as an aggravating factor and thenadditionally imposing an uplift for charges that have already been considered as anaggravating factor. However, if such an approach is adopted, it will be vital to considerthe totality of the offending and how it compares to other cases. With that in mind, Inow consider the comparable cases.[36] In Deadman v Police, the offender drove with excess breath alcohol twicewithin approximately two months. His breath alcohol was 781 and 840 respectively.He had 15 previous convictions for drink driving or refusing blood. He was alsodisqualified from driving. Cull J held the offending fell within the third category inSamson and adopted a starting point of 20 months' imprisonment.19[37] Mr Booker rightly identified that the offender's breath alcohol was slightlyhigher and that he had more previous convictions. However, I regard the presentoffending as more serious than that in Deadman because of Mr Beck's grosslyexcessive speed and the manifest danger he posed to public safety. That very seriousaggravating factor is what takes this case into the fourth category in Samson.19 Deadman v Police, above n 11.[38] In Ching-Joyce v Police the offender drove with excess blood alcohol twice ineight days, accruing his seventh and eight convictions. His breath alcohol was 675and 898 respectively. There had been a five-year hiatus since his last conviction. Aglobal starting point of 21 months' imprisonment was upheld, despite it being regardedas stern.20[39] Again, the offender's breath alcohol was slightly higher in one instance,although he had the same number of previous convictions. However, the currentoffending is similarly more serious because of Mr Beck's excessive speed. This samereason distinguishes the third case referred to by Mr Booker, Wilson v Police.21 I notealso that the appeal in that case was summarily dispensed with and the sentence in theDistrict Court could be categorised as merciful.[40] In summary, I conclude the Judge's starting point of 24 months' imprisonmentwas stern but within the available range. This case warranted a starting point between20 to 24 months' imprisonment.DiscountsGuilty Pleas[41] No issue was taken with the 25 per cent guilty plea discount.Personal circumstances[42] Mr Booker submitted the Judge erred in failing to give Mr Beck credit to reflecthis level of remorse and his capacity for rehabilitation.[43] The scant pre-sentence report prepared for the sentencing records that:Mr Beck expresses he is embarrassed and very regretful regarding theoffending.[44] The Judge explicitly referred at [13] to Mr Beck's level of regret and remorse.20 Ching-Joyce v Police, above n 12.21 Wilson v Police, above n 13.[45] The Judge also recognised at [15] that Mr Beck indicated to the pre-sentencereport writer that he would be willing to undertake alcohol and drug treatment. Thepresentence report recorded that Mr Beck had self-referred and been waitlisted toattend the Hapori Ora drug and alcohol programme operated by Odyssey House.There was also a letter of support from his sponsor at Alcoholics Anonymous beforethe Court, which showed that Mr Beck had support in the community that was willingand able to assist him in his rehabilitation.[46] The Judge did not give any discount for these steps taken by Mr Beck. Itappears that he chose not to for the following reasons:(a) Mr Beck's relationship with alcohol and driving is a very lengthy one,commencing in 1983.(b) Mr Beck obviously did not successfully rehabilitate when given anearlier opportunity to do so when sentenced to home detention.(c) Mr Beck committed a second offence only seven months after findinghimself in difficulties again, and the earlier offence did not trigger anyproactive steps on Mr Beck's part in relation to his drinking and thedanger his drinking and driving posed to the community.(d) Any remorse expressed had to be assessed in light of the extensivecriminal history.[47] I consider the Judge did not err in not providing a discount for Mr Beck'spersonal circumstances. Mr Beck's articulations, when viewed together, areambiguous and could be viewed as self-serving. The proof of the genuineness ofMr Becks' articulated intentions will be in his engaging fully on release andmaintaining an improved approach to drinking and driving.Should the sentence have been commuted to home detention?[48] When considering whether to allow an appeal against a refusal to commute asentence to home detention, an appeal court must focus on the identification of errorhaving regard to the discretionary nature of the decision.22 Home detention is analternative to a short-term sentence of imprisonment.23 The Court must be satisfiedthe purposes for which the sentence is being imposed cannot be achieved by any lessrestrictive sentence.24[49] It is evident from Mr Beck's history that his behaviour needs to be denouncedand deterred.[50] Given the recency of the two current convictions and the time lapse betweenthem, it is evident that Mr Beck remains a serious danger to the public.[51] Given these factors, I consider the short period of imprisonment was in thecircumstances the least restrictive outcome in Mr Beck's case. That said, I do not findthe Judge to have been in error in declining to commute the sentence of imprisonmentto one of home detention.Conclusion[52] The starting point was within the range available to the Judge.[53] The Judge did not err in not giving Mr Beck credit for his personalcircumstances.[54] The Judge did not err in declining to commute the short sentence ofimprisonment to home detention.22 Doolan v R [2011] NZCA 542 at [39].23 Sentencing Act 2002, s 15A(1)(b).24 Section 15A(1)(a).Result[55] The appeal is dismissed.Doogue JSolicitors:Crown Solicitor, ChristchurchCC:K Booker, Christchurch