COWIE v NEW ZEALAND POLICE [2016] NZHC 2608

COWIE v NEW ZEALAND POLICE [2016] NZHC 2608 [1 November 2016]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCRI-2016-404-000289[2016] NZHC 2608BETWEEN LUKE COWIEAppellantAND NEW ZEALAND POLICERespondentHearing: 31 October 2016Appearances: A Ives for AppellantH Clark for RespondentJudgment: 1 November 2016JUDGMENT OF FOGARTY JThis judgment was delivered by Justice FogartyOn 1 November 2016 at 3.30pmPursuant to r 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Solicitors/counsel:A Ives, AucklandCrown Solicitor, Auckland[1] This is an appeal against a sentence of three months' imprisonment imposedon the appellant in the Auckland District Court on 13 September 2016 (Judge P I Treston). The sentence was after Mr Cowie had entered a guilty plea to a charge of refusing to provide a blood specimen.[2] At 9.45pm on Thursday 12 May 2016, the appellant was driving a motor vehicle on Great North Road, Point Chevalier. He lost control of his car and collided with a tree. He refused an evidential breath test procedure. He exhibited signs of recent alcohol intake. He admitted to drinking five beers before driving.[3] Judge Treston recorded:[4] You have a six-page printout of previous convictions between 1999 and 2014 including driving with excess breath alcohol on five occasions:(a) 2001, a level of 558 when you were given periodic detention.(b) 2008, a level of 464, community work.(c) 2009, a level of 689, community work.(d) Two in 2010 at the same time but arising out of separate incidents on separate dates, 727 and 775, when you were given home detention and community work.[4] Mr Cowie also has numerous convictions on other matters for drugs, burglary, possession of weapons, etc. He is now 35 years of age. He has a partner, with their newborn baby, and is a valued employee of a construction company. There is a very real prospect that he is putting his past criminal activities behind him.[5] He advises that after this crash he resolved to give up alcohol and he is now participating in the eight week Getting Started group co urse. He has an impressive testimonial from his employer who says:I am aware of the charges Luke is facing, hence why I am providing this character reference to acknowledge that Luke is a true asset not only to my team, but this company and the very high demanding industry. I also wish to highlight the progress he has made over recent months to advance himself. I have recently given Luke to take on more responsibilities to up-skill himself as I have seen he has great potential, he assists with the training of younger apprentices on a regular basis which shows me he has got great leadershipskills, and is therefore respected by his peers the industry needs skilledworkers and Luke is exactly that. Over recent months Luke hasdemonstrated an even more committed attitude to working in order to provide for his new family.[6] He also has the strong support from his partner. They have a house and a mortgage together.[7] The Probation Officer in the PAC report comprehensively described MrCowie's numerous previous convictions and background, including a poor compliance record in respect of community based sentences, having accumulated 10 breaches in the past. The report ends:I asked him what has changed in the meantime, and he said, "I have a goodjob, a good woman and a baby on the way. I've gotta keep clean and do thebest for my family".[8] The Probation Officer recommended a sentence of supervision, to complete a rehabilitative drink driving programme and other programmes as directed, and a sentence of community detention to be served at (his home) and some community work.[9] Given his numerous convictions, including particularly blood alcohol convictions, this is a case where imprisonment was clearly an option.[10] Judge Treston concluded:[15] It is the least restrictive outcome which I must adopt but I have got to say that having considered the matter and bearing in mind your very poor response to community-based sentences in the past, a sentence of imprisonment is the only appropriate option today.[16] I understand your personal circumstances, I understand your domestic circumstances, but in my view, a short sharp shock is one that is needed for you to reinforce the steps you have already taken. I consider the appropriate starting point, bearing in mind that the maximum potential sentence is two years' imprisonment, is four months' imprisonment.[17] I give you credit for your plea of guilty and for the other matters thatyou have demonstrated through your lawyer's submissions andsentence you today to imprisonment for three months and disqualifyyou from holding or obtaining a driver's licence for 18 monthsstarting now.[11] Ms Ives, counsel for the appellant, argued that the learned sentencing Judge failed to consider the hierarchy of sentencing and the obligation to impose the least restrictive outcome and the matters set out in s 16(1) and (2) of the Sentencing Actwhen determining that a sentence of imprisonment is warranted, rather than a combination of community-based sentences, or an adjournment for a home detention address. She also submitted furthermore that the learned sentencing Judge, by focussing almost exclusively on deterrence and denunciation, failed to consider the mandatory obligation to take into account any particular circumstance of the offender that meant a sentence otherwise appropriate would be disproportionately severe, found in s 8(h) of the Sentencing Act 2002. She also submitted the Judgefailed to consider the mandatory obligation to take into account the offender'sbackground in imposing a sentence with a partly or wholly rehabilitative purpose (s 8(i) Sentencing Act).[12] Ms Clark, for the Crown, argued to the contrary. She emphasised particularly paragraphs [15] and [16], the concluding paragraphs of the judgment which I have already set out. She also relied on the decision of the Court of Appeal in Doolan v R1 that:The relative weight to be given to the principles and purposes of the Act is left to be determined by the sentencing Judge in all the circumstances of the case.[13] She went on to argue that Judge Treston did in fact consider all relevant, personal mitigating factors. She submitted that it is not appropriate on appeal to re-visit the Judge's exact weighting given to each factor.[14] Having heard high quality arguments, both from Ms Ives for the appellant, and Ms Clark for the Crown, I reached the view that the Judge was very alive to the criteria in the Sentencing Act. His end sentence of three months in prison is intended to be a therapeutic sentence, to drive home the imperative that this young man now should take control of his drinking problem, end his offending, and take advantage of his new found family and the loyal support of his employer, and put his past unhappy history of offending behind him. My judgment is that this was a view that the Judge was entitled to take on the evidence before him and cannot be said to be in error. Section 250 of the Criminal Procedure Act 2011 provides:250 First appeal court to determine appeal1 Doolan v R [2011] NZCA 542 at [38].(1) A first appeal court must determine a first appeal under this subpart in accordance with this section.(2) The first appeal court must allow the appeal if satisfied that—(a) for any reason, there is an error in the sentence imposed on conviction; and(b) a different sentence should be imposed.(3) The first appeal court must dismiss the appeal in any other case.[15] In the absence of error, subsection (3) applies.[16] The appeal is dismissed.___________________________Fogarty J