BRAMLEY v NEW ZEALAND POLICE [2020] NZHC 1788

BRAMLEY v NEW ZEALAND POLICE [2020] NZHC 1788 [22 July 2020]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECRI-2020-463-59[2020] NZHC 1788BETWEEN MICHAEL JOHN BRAMLEYAppellantAND NEW ZEALAND POLICERespondentHearing: 22 July 2020(Heard at Tauranga)Appearances: J S Myers for the appellantS J Revell for the respondentJudgment: 22 July 2020ORAL JUDGMENT OF PALMER JCounsel/Solicitors:Public Defence Service, TaurangaPollett Legal, Crown Solicitor, TaurangaWhat happened?[1] On 15 May 2019, Michael Bramley, aged 70, drove with excess breath alcoholalong what is often a busy main road in Mt Maunganui, in the middle of the day. Heabandoned the car and left it in the middle of the road with the engine running. Hewas arrested after members of the public called Police due to concerns about hisdriving. The reading was 1,541 micrograms of alcohol per litre of breath, six timesthe legal limit. This was his sixth drink driving offence though the last offence was in2012. The maximum penalty for this offence is therefore two years' imprisonment ora $6,000 fine. On 24 June 2019, Mr Bramley pleaded not guilty on the advice of histhen counsel. On 9 August 2019, following further disclosure, Mr Bramley pleadedguilty. There were several adjournments of Mr Bramley's sentencing to allowpreparation of a specialist report to assess his potential addiction to alcohol and toallow him to obtain a suitable address for home detention. No suitable address wasobtained. A letter from Mr Bramley's doctor did exist at the time of the sentencing,but Mr Bramley had apparently not given it to counsel, perhaps because of MrBramley's forgetfulness which is attested to in the letter.[2] On 4 June 2020, in the Tauranga District Court, Judge P G Mabey QCsentenced Mr Bramley to 11 months' imprisonment and disqualified him from drivingfor the minimum period, of one year and one day.1 The Judge referred to the highalcohol level and Mr Bramley's previous convictions. He set a starting point of12 months' imprisonment, incorporating provision for Mr Bramley's previousconvictions. He gave a discount of one month for the guilty plea which hecharacterised as coming "at a late stage".2 The Judge was satisfied Mr Bramley waswithin the exception for the alcohol interlock laws which rendered him liable fordisqualification. He is able to apply for a zero-alcohol licence, which requires a driverto maintain an alcohol limit of zero while driving. The Judge also convicted anddischarged Mr Bramley for an outstanding charge of breach of bail. Mr Bramleyappeals the sentence.1 New Zealand Police v Bramley [2020] NZDC 10500.2 At [4].Submissions[3] Mr Myers, for Mr Bramley, submits the end sentence was manifestly excessive.He submits the starting point of 12 months was appropriate and, on the basis of othersentences for sixth convictions, a higher starting point was not justified.3 Even if itwas slightly higher, he submits an end sentence of 11 months was still manifestlyexcessive. But he submits:(a) a discount of two months was warranted for remorse and rehabilitativesteps taken;(b) a further discount of two months was warranted for M Bramley's ageand health, in respect of which Mr Myers applies to adduce the letterfrom Mr Bramley's doctor as fresh evidence; and(c) a full 25 per cent discount was warranted for the guilty plea so thesentence should be in the vicinity of six months' imprisonment.[4] Mr Revell, for the Police, submits the starting point should have been at least18 months' imprisonment, having regard to the framework for starting points for morethan three drink driving offences set out in Clotworthy v Police and other case law.4He distinguishes the cases cited by Mr Myers. He accepts that arguably Mr Bramleyhas been hard done by, in terms of the discounts. A discount closer to 15 per cent forthe guilty plea would have been available, rather than the eight per cent granted. Hesubmits no discount was required for rehabilitation and remorse. He does not opposethe fresh medical evidence being admitted on appeal, which I do admit by consent.On the basis of that, Mr Revell accepts there should be some discount for MrBramley's age and health conditions but submits it should be limited. He would notstand in the way of a discount of around 12 per cent. Even with further credit for theissues raised, with the higher starting point he submits the end sentence cannot be saidto be manifestly excessive and the appeal should be dismissed. He accepts there is a3 Todd v Police HC Nelson CRI-2007-442-15, 5 November 2007; Matkovich v Police [2013] NZHC872; Keats v Police [2014] NZHC 2224.4 Clotworthy v Police (2003) 20 CRNZ 439 (HC); Dick v Police [2014] NZHC 434; Sands v Police[2012] NZHC 3011; and Himiona v Police [2012] NZHC 1756.range of appropriate end points, and the end point advocated for by Mr Myers is withinthe appropriate range, but so he submits is the end point the Judge determined.Should Mr Bramley's appeal succeed?[5] Under s 250 of the Criminal Procedure Act 2011, I must allow the appeal ifsatisfied there is a material error in the sentence and a different sentence should beimposed. My focus is on whether the end sentence is within the available range.[6] I agree with Mr Revell that the alcohol level, the previous convictions andMr Bramley's manner of driving are aggravating factors of the offending. The timesince the last offence is not an aggravating factor. I consider most of the cases reliedupon by Mr Revell concern more serious offending than that here. But the range forthe sentencing of this sort of offence is relatively broad, as Mr Revell acknowledges.I do not consider the cases he relies upon demonstrate that the starting point adoptedby the Judge was outside the available range of starting points. I accept Judge Mabey'sstarting point of 12 months' imprisonment was appropriate.[7] As to the adjustments:(a) Mr Bramley could have pleaded guilty earlier but he did not pleadguilty at a particularly late stage. The initial disclosure informationsuggested there might have been issues with the procedure sheet, suchas the date of calibration of the breath testing device, a breath test resultmarked "incomplete", and a blank part of a relevant Police form. In adecision issued since the sentencing judgment the Court of Appeal hasnoted that "the justification for any delay" may affect the amount of theguilty plea discount.5 On the basis of the information about this delay,which was not obviously available to the sentencing Judge, I considerthe guilty plea discount should be two months, or just over 16 per cent.In accordance with Moses v R, that discount is now to be deducted fromthe starting point along with any others.65 Moses v R [2020] NZCA 296 at [23].6 At [46].(b) The Judge did not address Mr Bramley's engagement in rehabilitationor his letter of remorse. The assessment report by a nurse, that wasavailable to him, said Mr Bramley had attended 10 sessions ofAlcoholics Anonymous, had self-referred to an addictions service andengaged with the Hanmer Clinic. Mr Revell submits the Court mightreasonably be sceptical of the effectiveness of rehabilitation of arecidivist drink-driver. There is something to that, but I consider therehabilitative efforts Mr Bramley engaged in go beyond the token. Iconsider a discount of one month, or around eight per cent, is warrantedfor rehabilitation and the remorse it implies.(c) The fresh evidence I have admitted verifies Mr Bramley's alcoholdependence, cognitive impairment (particularly of memory) andongoing investigations of enlarged glands in his chest. I accept thesecharacteristics mean the impact of imprisonment is significantly greateron Mr Bramley than other offenders. I consider another two months'discount for his sentence is warranted for this.[8] Accordingly, I uphold the appeal of the sentence of 11 months' imprisonment,which I set aside. Instead I sentence Mr Bramley to seven months' imprisonment. Theother aspects of the District Court sentencing decision remain intact.Palmer J