EVANS v POLICE [2016] NZHC 2495

EVANS v POLICE [2016] NZHC 2495 [19 October 2016]IN THE HIGH COURT OF NEW ZEALANDINVERCARGILL REGISTRYCRI-2016-425-000027[2016] NZHC 2495BETWEEN MARRIETTA LILLIAN EVANSAppellantAND NEW ZEALAND POLICERespondentHearing: 17 October 2016Appearances: No appearance for the AppellantR Donnelly for the RespondentJudgment: 19 October 2016JUDGMENT OF NATION J[1] On 26 April 2016, Marrietta Evans was disqualified from driving for 10 months on a drink driving charge. On 1 May 2016 at about 12.40 am, she was driving a vehicle in Invercargill. She drove for some 800 metres after Police following closely behind her had activated red and blue flashing lights. After initial discussions an evidential breath test was administered and gave a reading of 1024 mcgm of alcohol per litre of breath. She admitted being a disqualified driver.[2] On 11 August 2016, she was sentenced on what was her fourth drink driving charge and for driving while disqualified.[3] The District Court Judge noted the purposes of sentencing were to hold the appellant accountable, to denounce and deter both her and others from this type of offending and also to protect the community from her as a recidivist drink driver. He noted her issues with alcohol, that she had two pre-school children, the offending within such a short time of her previous sentence and the extremely high level of alcohol in her system when she was apprehended.[4] The Judge adopted a starting point of 16 months' imprisonment including a one month uplift because of the proximity of the earlier sentencing and disqualification. He gave her a credit for her early guilty plea of 25 per cent, leading to an end starting point sentence of 12 months' imprisonment. He decided it wasappropriate to sentence her to home detention but only because she had two pre-school children. The ultimate sentence he imposed was thus six months' homedetention with various conditions, including addressing her need to deal with her alcohol problem. The Judge also ordered special conditions and standard conditions to apply for six months from the end of the sentence and disqualified her from driving for a period of 18 months. Orders were made under s 65 of the Land Transport Act (1998), again dealing with alcohol issues. He also made an order for the surrender of the car she was driving and cancelled the supervision order to which she had been earlier sentenced.[5] Marietta Evans filed her own notice of appeal against that sentence. She stated the grounds of her appeal were "impact upon children; severity of sentence".[6] Ms Evans' former counsel advised the Court that she had been declined legal aid for the appeal. Ms Evans was advised of the date of hearing for the appeal but was not at Court when the matter was first called at 10.00 am. She did come to the Court precinct at some later time but did not remain there and was not at Court when the appeal was called again at 2.15 pm. I chose to proceed with the appeal. I had the benefit of written submissions from the Crown Solicitor in response.Principles on appeal[7] This appeal is an appeal against sentence, and as such is brought under s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act.[8] Specifically, this Court may only allow an appeal against sentence if it is satisfied that there has been an error in the imposition of the sentence, and that in the event, a different sentence should be imposed.11 Criminal Procedure Act 2011, ss 250(2) and 250(3).[9] If the sentence under appeal may be properly justified having regard to the relevant sentencing principles, it is not the place of this Court to intervene and substitute its own views for those of the sentencing Judge. It is only if the sentence is"manifestly excessive" that the Court should interfere with the exercise of the Judge's discretion. As Toogood J said (citing Ripia v R2) in Larkin v Ministry of Development:3[26] The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.DiscussionThe sentencing process[10] The Judge took a principled approach to the sentencing exercise. There were a number of factors which were taken into account. The Judge recognised that thiswas the appellant's fourth drink driving conviction, and that a high reading ofalcohol was involved (2.5 times the upper limit). The offending also occurred a mere 5 days after Ms Evans had appeared before the court on a drink-driving charge and been disqualified for a period of 10 months.[11] An entirely orthodox approach was taken to the setting of the starting point. Having described the offending, a starting point of 15 months' imprisonment was reached on the EBA charge. An uplift of one month was applied for the drivingwhilst disqualified charge, which in the main reflected the appellant's transgressionso recently after being sentenced on similar offending. Although the Judge did not refer to the now-hallmark case of Clotworthy v Police,4 or indeed to any specific case-law, that in itself is unremarkable. As indicated, he drew specific attention to the particular features of the offending, as well as the relevant sentencing principles. This is not a case where the Judge has failed to provide reasons for the decision.2 Ripia v R [2011] NZCA 101 at [15].3 Larkin v Ministry of Development [2015] NZHC 680.4 Clotworthy v Police [2015] NZHC 57.[12] The appellant was given full 25% credit for her early guilty pleas, and the end starting point of 12 months reflected that.Was the sentence manifestly excessive?[13] In any case, as the respondent submits, the starting point reached was within the acceptable range with reference to the Clotworthy factors. Aggravating factors included high breath alcohol, previous (and extremely recent) similar offending, and driving which, although not dangerous per se, occured at a time when the appellant was disqualified and therefore not permitted to drive. The respondent also refers toSamson v Police as authority that where one or more seriously aggravating factors are present, a starting point of 12-18 months is appropriate.5Impact upon children[14] The respondent accepts that the impact of sentence on the appellant's pre- school age children was a legitimate matter for the Judge to consider under the catch- all sentencing principle in s 8(h) of the Sentencing Act 2002. The Judge did that. Itwas precisely because of the appellant's children that he was persuaded a sentence ofhome detention was the least restrictive outcome available. Any sentence will oftencontain an element of hardship to the offender's family. However, the appellant mustshow something exceptional about the hardship in order to compel a greater degree of leniency than would otherwise be appropriate to satisfy all the purposes of sentencing, including denunciation and deterrence.6Conclusion[15] The Judge followed a principled and orthodox approach to the sentencing process throughout. Ultimately, the end short sentence of home detention was reached with acute regard for the appellant's circumstances. Realistically, it was theleast restrictive outcome she could have expected. The imposition of the various disqualification periods was, although not particularly lenient, hardly manifestly excessive, and entirely appropriate in the circumstances.5 Samson v Police [2015] NZHC 748 at [15].6 Skelton v R [2011] NZCA 35 at [40].[16] For the reasons outlined above, the appeal is dismissed.Solicitors:Preston Russell Law, Invercargill.