CORBETT v NZ POLICE [2016] NZHC 2012

CORBETT v NZ POLICE [2016] NZHC 2012 [29 August 2016]IN THE HIGH COURT OF NEW ZEALANDINVERCARGILL REGISTRYCRI-2016-425-21[2016] NZHC 2012BETWEEN JIMMY KARL CORBETTAppellantAND NEW ZEALAND POLICERespondentHearing: 22 August 2016Appearances: H Cuthill for the AppellantR W Donnelly for the RespondentJudgment: 29 August 2016JUDGMENT OF NICHOLAS DAVIDSON JIntroduction[1] On 21 February 2016, the appellant was driving on State Highway 95 when he was stopped by the police. His breath alcohol reading was 666 micrograms of alcohol per litre of breath. He was at that time disqualified from driving.[2] Mr Corbett appeals against the sentence of 13 months imprisonment imposed in relation to the charge of driving while disqualified, third or subsequent (his fifth), and of driving with excess breath alcohol, third or subsequent (his sixth).District Court[3] The Judge referred to the provisions of s 8(a), (e) and (g) of the Sentencing Act 2002, emphasising the need to impose the least restrictive sentenceoutcome, and in particular the need to take into account the desirability of keeping offenders in the community.1[4] The Judge rejected the submission that the starting point should be between 12 and 18 months imprisonment, based on the authorities put to him and reached the conclusion that the purposes of sentencing were to hold Mr Corbett accountable, to denounce his conduct and to deter others from repeat drink driving.2[5] He was influenced by the fact that the appellant's offending is a "complete disregard of the transport legislation".3 The seriousness of the offending was increased by the fact that on this occasion Mr Corbett was the designated "sober driver".[6] The Judge adopted a starting point of 18 months imprisonment. His Honour discounted 25 per cent for the early guilty pleas, which by his calculation came to 15 months imprisonment.[7] Having refused home detention given the history of repeated offending and a previous home detention sentence, his Honour deducted two months for the"substantial period" the appellant had been subject to restrictive bail conditions. This resulted in an end sentence of 13 months.Jurisdiction[8] Mr Corbett is able to appeal the sentence imposed as of right.4 This Court will only disturb the sentence appealed from if the appellant can establish that there was an error in the sentence imposed, and that a different sentence should be imposed.5 The Court of Appeal has confirmed that the sentence appeal regime in the Criminal Procedure Act 2011 (the CPA) was not intended to signify departure from1 Police v Corbett [2016] NZDC 11836 at [5].2 At [8].3 At [9].4 Criminal Procedure Act 2011, s 244.5 Section 250.the position under the predecessor regimes in the Crimes Act 1961, s 385(3) and the Summary Proceedings Act 1957, s 121(3).6Submissions for the appellant[9] The end sentence imposed was 13 months imprisonment. Ms Cuthill submits this was manifestly excessive.[10] First, it is submitted that the starting point of 18 months imprisonment was too high, having regard to all the circumstances, and to the sentencing framework set out in Samson v Police.7[11] Secondly, the end sentence is submitted to be too high having regard to all the circumstances, including the appellant's immediate guilty pleas and the time spent on bail under 24 hour curfew.[12] Thirdly, in light of his personal circumstances, it is submitted that the Court should have commuted the sentence to one of home detention.[13] These three factors combine to produce the submission that the sentence is manifestly excessive in all the circumstances.Starting point[14] Ms Cuthill says that Samson involved a fifth drink driving conviction and a tenth conviction for driving while disqualified. The High Court held on appeal that a starting point of 12 months imprisonment was appropriate for driving while disqualified, and 12 - 18 months for the drink driving. A cumulative sentence would have a starting point, subject to further discount for pleas of guilty, of 24-30 months and with discounts a 19-25 month sentence range.[15] The totality of the offending was considered and a cumulative starting point of 20 months was adopted. With discounts for personal circumstances, the end sentence was 16 months imprisonment. Home detention was declined despite6 Tutakangahau v R [2014] NZCA 279,[2014] 3 NZLR 482.7 Samson v Police [2015] NZHC 748.Mr Samson being the father of three young children. He had been sentenced to home detention for driving offences on three occasions.[16] Ms Cuthill says Samson was more serious than this case. The breath alcohol level in that case was slightly higher, and Mr Samson had more convictions for driving while disqualified and excess breath alcohol (fifth and tenth convictions respectively) over about the same period Mr Corbett acquired his fifth and sixth convictions.[17] The discount in Samson was for personal circumstances and brought to account his family situation and his attempts to address alcohol abuse issues. The end point in Samson of 16 months imprisonment was used by Ms Cuthill to leverage the submission that this case is less serious. She submitted an appropriate starting point would be in the range of 10 – 11 months, so that meant the 13 months end sentence under appeal is manifestly excessive, particularly when discounts are applied for guilty pleas and the time spent under 24 hour curfew.[18] The appellant's last conviction was in June 2014, and counsel submits there is a gap in his offending which should lead to a more lenient sentence. A gap of two years should be given very limited recognition, but it is submitted that there was no evidence of poor driving and the appellant pleaded at the earliest opportunity. The fact there was no careless or wayward driving is not, in my view, a mitigating factor. Had there been, it would have been aggravating.Home Detention[19] The case for home detention was that the appellant lived with his partner and their two young children, with a third child due in November 2016. That, together with two months spent on a 24 hour curfew on bail, was said to point in favour of commuting the sentence to home detention.[20] The sentencing Judge brought to account that a prior sentence of home detention in January 2014 had failed to deter the appellant from reoffending.8 As8 Police v Corbett, above n 1, at [11].home detention was declined, his release date is January 2017, so he will not be with his family for the first few months of his child's life.[21] In Tawa v Police, Mr Tawa's appeal against sentence on a fourth excess blood alcohol charge, a sixth and seventh charge of driving whilst disqualified, and a careless driving charge, was based in part of his supportive and stable family life, his having three daughters, and the availability of employment.9 The end sentence on appeal was 16 and a half months imprisonment. Mr Tawa met, but only just, the standard for strong personal circumstances justifying a community-based sentence. He was sentenced to six months community detention, and 12 months intensive supervision. A community-based sentence is thus submitted to be appropriate in this case.Submissions for the respondent[22] For the respondent, New Zealand Police, Mr Donnelly submits that the end sentence was within range and the repetitive offending means a stern response from the Court was appropriate, and home detention was rightly refused.[23] Mr Donnelly submits that the appellant has a significant number of previous convictions, all within a short timeframe. The appellant is now convicted of his sixth drink driving offence and has been twice sentenced to imprisonment, and once to home detention. His breath alcohol reading of 666 micrograms of alcohol per litre of breath, stands against the legal limit of 400 micrograms. The appellant was, incredibly, the designated sober driver that evening, despite the fact that he was disqualified from driving. In Mr Donnelly's submission, this in itself shows a contemptuous disregard for the law.[24] Mr Donnelly referred to the judgments in Samson v Police,10 andBechan v Police.11 The Judge in both cases, Whata J, said decisions did not purport to be tariffs, but they are submitted to provide guidance when sentencing for driving with excess breath or blood alcohol. Bands of offending were set by the Judge.9 Tawa v Police [2016] NZHC 696.10 Samson v Police, above n 7.11 Bechan v Police [2015] NZHC 747.In this case, the significant number of convictions in a short timeframe is submitted to be seriously aggravating (this being the appellant's sixth drink driving conviction in 10 years), so that the offending should be placed above the bottom band set by Whata J, particularly as the appellant has twice been sentenced to imprisonment and once to home detention for the same type of offending.[25] Adding in the associated driving while disqualified charge, the relatively high level of breath alcohol (666 micrograms of alcohol per litre of breath), and the fact that the appellant was supposed to be the sober driver when he was not only disqualified but had been drinking, Mr Donnelly says the offending should be put at the top of band two, while stern, this is a necessary response.[26] From the starting point of 18 months imprisonment, the appellant received a three month discount for his guilty plea and a further two month discount for the two months spent on restricted bail conditions. Mr Donnelly submitted that those discounts were properly made and no other discounts could be justified. The end sentence was thus said to be within range.Analysis[27] The District Court Judge adopted a global starting point of 18 months, takinginto account both convictions and the defendant's previous criminal history.Clotworthy v Police provides a framework for sentencing third and subsequent excess breath alcohol offending in terms of aggravating and mitigating factors.12In Clotworthy, Wild J considered the following factors to be relevant:13(a) the breath alcohol level;(b) the length of time that had elapsed since the last drink driving conviction;(c) conviction for two or more drink driving offences in close succession;12 Clotworthy v Police (2003) 20 CRNZ 439 (HC).13 At [20].(d) the manner of driving;(e) whether the offender was disqualified or forbidden from driving at the time;(f) the time of guilty plea;(g) sentences imposed for previous excess breath or blood alcohol convictions;(h) the offender's record;(i) any genuine remorse; and(j) any mitigating personal or family circumstances.[28] Mr Donnelly submits there are numerous authorities to support the submission for the respondent that the Judge was well within the range of the sentence available in his discretion. In Dick v Police¸ the defendant was sentenced following an eighth conviction for driving with excess breath or blood alcohol, and seventh conviction for driving while disqualified.14 Lang J considered that a starting point of 18 months imprisonment was appropriate for the excess breath alcohol offending. However, an uplift of six months was adopted to take into account the driving while disqualified.[29] The starting point of 18 months here adopted by the District Court Judge, with a further deduction of five months is submitted to be more lenient than the approach taken by Lang J in Dick v Police.[30] In Phillipson v Police, the defendant was sentenced to 15 months imprisonment for his fifth excess breath alcohol offence.15 He was caught with a breath alcohol reading of 647 micrograms of alcohol per litre of breath. On appeal, Hansen J found the sentence manifestly excessive and imposed 12 months14 Dick v Police [2014] NZHC 434.15 Phillipson v Police HC Invercargill CRI-2004-425-32, 10 September 2004.imprisonment. However, on the present facts in this appeal, the offending was aggravated by the fact that the defendant was driving while disqualified.[31] The starting point adopted by Judge Callaghan was, I consider, well withinthe range of sentence available in the Judge's discretion.[32] That still leaves the way in which the discount for the guilty pleas and the time spent under 24 hour curfew should be addressed, and his personal circumstances having regard to the impending birth of his child.[33] The Judge intended to discount for the guilty plea and the two months spent under 24 hour curfew. There is a calculation error as a 25 per cent discount for guilty pleas reduces 18 months imprisonment to 13 and one half months. After deducting a further two months, the end sentence should have been 11 and one half months.[34] If the end sentence had been calculated by the usual method adopted, namely discounting for guilty pleas at the end, then the 18 months starting point becomes 16 months, and after a 25 per cent discount becomes 12 months.[35] There is no other basis on which the sentence should be disturbed, but to this extent the appeal is allowed. The sentence of thirteen months imprisonment is quashed and a sentence of 12 months imprisonment imposed as this is what the Judge intended. I consider this the correct approach.[36] I am conscious of the child to be born. This is not a case where I consider what is undoubtedly a significant family occasion should influence a sentence of home detention or of such length that it accommodates the birth. The offending is simply too serious. The sentence imposed on this appeal will result in a release date which should correspond close to the expected date of birth.Home Detention[37] I have said that a sentence of home detention is inappropriate in these circumstances, considering the appellant's continued disregard for the law. The Judge's decision to refuse home detention cannot be criticised.Disposition[38] The appeal is allowed and a sentence of 12 months imprisonment is imposed..Nicholas Davidson JSolicitors:John K Fraser Law Ltd, InvercargillPreston Russell Law (Crown Solicitors), Invercargill