CATLIN v POLICE [2017] NZHC 2485

CATLIN v POLICE [2017] NZHC 2485 [11 October 2017]IN THE HIGH COURT OF NEW ZEALANDINVERCARGILL REGISTRYI TE KŌTI MATUA O AOTEAROAWAIHŌPAI ROHECRI-2017-425-28[2017] NZHC 2485BETWEEN NICHOLAS EDWARD CATLINAppellantAND NEW ZEALAND POLICERespondentHearing: 9 October 2017Appearances: L Collins for AppellantS McKenzie for RespondentJudgment: 11 October 2017JUDGMENT OF MANDER J[1] The appellant, Nicholas Catlin, was sentenced to two years and four monthsimprisonment on one charge of driving with excess breath alcohol causing injury andone charge of failing to ascertain if injury or death had occurred.1 He was alsodisqualified from driving for five years and ordered to pay reparation in the sum of$7,500. He has appealed his sentence of imprisonment on the ground it is manifestlyexcessive.Background[2] On the night of the offending, Mr Catlin drank at a pub in Queenstown. Priorto going out that evening, he had already consumed some six to eight bottles of beer.At around 10.00 pm, he left the pub and got into his car. Clearly intoxicated, he spedand swerved his way up the street, reaching a speed of approximately 74 kilometres1 Police v Catlin [2017] NZDC 12468.per hour in a 50 kilometre per hour zone. He made a sharp turn at speed, brakedheavily, and, as a result, careered across the road and onto a footpath, hitting a raisedgarden edge before continuing on.[3] In the path of Mr Catlin's vehicle was the victim who was standing on thefootpath with her bicycle, preparing to ride home. She had just put on her helmet. MrCatlin's vehicle struck the victim, causing her to be thrown onto its bonnet before bothshe and her bicycle were propelled some three to four metres into the air. The victimlanded approximately 10 metres away in the middle of the road. Mr Catlin drove onfor some 100 metres. He then stopped, got out of the car, and was observed smokinga cigarette before decamping into some bushes. He later caught a taxi home, wherepolice found him soon after.[4] A subsequent blood test showed his alcohol level to be 150 milligrams ofalcohol per 100 millilitres of blood, which is about twice the legal limit. His bloodalcohol level at the time of the collision is not known. The victim suffered a traumaticbrain injury, complex facial fractures, injury to her left eye and bruising to her lowerbody. She spent some two months in hospital, and after discharge continued to havedouble-vision and memory loss. The long term prognosis of any permanent disabilityremains unknown.Sentencing decision[5] In sentencing Mr Catlin, Judge Farnan identified the salient aggravatingfeatures of his offending. These included the extent of the harm to the victim; the levelof alcohol in his blood, being almost twice the legal limit; and the fact he was speedingat the time he lost control of his vehicle. The Judge assessed Mr Catlin's culpabilityas being between "moderate and serious".[6] Judge Farnan took a starting point of three years imprisonment on the chargeof drink-driving causing injury, which she uplifted by eight months to mark theadditional serious charge of failing to ascertain death or injury.[7] In relation to Mr Catlin's personal circumstances, it was noted he had twoprevious convictions in the United Kingdom for drink-driving. The pre-sentencereport highlighted Mr Catlin's ongoing problems with alcoholism, and assessed himat a medium risk of reoffending. The sentencing Judge uplifted the starting point byfour months to take into account his previous relevant offending.[8] From a starting point of four years imprisonment, Judge Farnan then applied a20 per cent discount for a number of mitigating factors. Mr Catlin had attendedrestorative justice and offered to pay $2,500 in reparation. It was also noted that MrCatlin had taken other steps, such as attending Alcoholics Anonymous meetings andoffering to be interviewed by the Otago Daily Times for an article about the dangersof drink-driving.[9] From the reduced starting point of 38 months, the Judge extended a full 25 percent discount for Mr Catlin's guilty pleas which, when rounded down, resulted in atotal sentence of imprisonment of 28 months. The Judge ordered an emotional harmpayment of $2,500 to be paid immediately, and a further $5,000 in reparation to bepaid thereafter.The appeal[10] The appeal is brought on the ground that the end sentence of two years andfour months imprisonment was excessive and should be substituted with a lesser termof imprisonment which would allow Mr Catlin to be eligible for home detention.[11] Mr Collins who appeared on behalf of Mr Catlin submitted that a starting pointof no more than two and a half years imprisonment should have been adopted. Insupport of that argument he cited a number of cases, some of which will be consideredlater in this judgment. Mr Collins further submitted that the pre-sentence report hadwrongly suggested that the only suitable sentence was one of imprisonment becauseof the likelihood of Mr Catlin being deported. Further, that the four month uplift forthe previous convictions was excessive and constituted a double-punishment.Analysis[12] Dealing with those last two contentions first. Mr Collins is correct in hissubmission that the likelihood of Mr Catlin's deportation is an irrelevant considerationwhen determining an appropriate sentence.2 However, there is nothing in JudgeFarnan's sentence remarks to suggest the Judge took the comment in the pre-sentencereport into consideration when imposing sentence. Home detention was notconsidered an option because of the length of the term of imprisonment arrived at bythe sentencing Judge.[13] I do not consider Mr Collins' submission regarding the uplift of four months tomark Mr Catlin's previous convictions stands scrutiny. The rationale for an uplift forprevious offending is to provide specific deterrence and/or to recognise the increasedculpability of an offender where his most recent offending marks a continuation ofprevious bad conduct.3 While proportionality is important when considering the levelof any uplift, there are no rigid rules regarding the appropriate quantum to reflect anoffender's history and personal circumstances.4[14] In the present case, I consider it was open to Judge Farnan to impose a fourmonth uplift because of Mr Catlin's relevant previous offending. Notwithstanding MrCatlin being convicted on two previous occasions in the United Kingdom for drink-driving, he has continued to drink and drive notwithstanding the inherent risks of suchconduct. That has now resulted in very serious injury to an innocent victim, andmarkedly increases his culpability for the present offending. The four month uplift forthe two previous convictions is consistent with a six month uplift imposed for threeprevious drink-driving convictions in the similar case of Arrow v Police, which wasnot disturbed on appeal, and to which I will shortly refer.5[15] Mr Collins, in support of his submission that the sentence was manifestlyexcessive, referred to a number of previous sentencing decisions. One of thosedecisions, Arrow v Police, is a recent case particularly analogous to Mr Catlin'soffending.2 R v Ondra [2009] NZCA 489; R v Zhang CA56/05, 24 May 2005; R v Ahlquist [1989] 2 NZLR177 (CA).3 Beckham v R [2012] NZCA 290; R v Howe [1982] 1 NZLR 618.4 Ripia v R [2011] NZCA 101 at [10].5 Arrow v Police [2016] NZHC 3069.[16] In that case, the appellant failed to navigate a corner, causing him to drive ontothe pavement where he struck two victims, although only one was seriously injured.That person received a skull fracture, several fractured ribs, and internal injuries whichrequired surgery and ongoing treatment. The sentencing Judge adopted a starting pointof two and a half years imprisonment, which it has to be remarked is somewhat morelenient than the three years adopted by Judge Farnan in the present case. A six monthuplift was applied to reflect the appellant was in breach of a Court order not to drivewith alcohol in her system. That is perhaps a similar but less aggravating feature thanthe failure to stop charge, in respect of which an eight month uplift was applied in thepresent case. As previously observed, a further six month uplift was applied to markthe appellant's three previous drink-driving convictions.[17] Matters taken into account in mitigation by the sentencing Judge in Arrow werenot dissimilar to Mr Catlin's case. They included the offender's offer of $2,500reparation, a letter of apology, a willingness to attend restorative judgment, and stepsto manage his alcoholism together with his remorse. A five per cent discount wasallowed in recognition of those matters before a full guilty plea discount was applied,resulting in an overall sentence of two years and six months imprisonment. On appeal,Nation J observed that while greater allowance could have been extended to reflectthe mitigating factors personal to the appellant, the sentence was within range and theappeal was dismissed.[18] In attempting to distinguish Arrow from the present offending, Mr Collinssubmitted that in that case there were two victims, the level of alcohol in theappellant's system was three times the limit, rather than twice, and the zero alcohollimit which the appellant was subject to in that case. Those factors provide somesupport to Mr Collins' submission that the three year starting point adopted by JudgeFarnan in the present case may appear excessive when compared with the base startingpoint of two and a half years adopted by the sentencing Judge in Arrow.[19] That, however, is not the critical focus of a sentence appeal. An appeal Courtmust be satisfied that there has been an error in the sentence and that an alternativesentence should be imposed.6 If the sentence under appeal can be properly justifiedthis Court cannot substitute its own views for that of a sentencing Judge. Importantly,and of particular relevance to the present appeal, it is not enough that a Judge makesan error in his or her reasoning, or that some component part of the process by whichthe final sentence has been reached appears erroneous. The focus is on the actualsentence achieved, rather than the process by which the sentence was reached.7Accordingly, the appropriate comparison with Arrow is with the final sentenceimposed of two years, six months imprisonment.[20] When compared with Arrow, the initial starting point in the present case mayappear on the high side, but the total 45 per cent discount for factors personal to MrCatlin and his guilty pleas can only be described as generous. The overall culpabilityof the two offenders in each of the cases is comparable, and while Mr Collins can pointto some differences, the two month difference between the two sentences and the factMr Catlin faced the additional charge of failing to stop, accommodates the distinctionssought to be made. Accordingly, while the sentence imposed on Mr Catlin may beviewed as stern, as indeed the sentence in Arrow was so described, it cannot beconsidered to be manifestly excessive, or beyond the range of sentence available inthe exercise of the sentencing Court's discretion.[21] For completeness and in deference to Mr Collins' written submission, I referto some of the other cases to which he referred. In Mankipersadh v R, the Court ofAppeal substituted a sentence of four months imprisonment with five months homedetention, however, that case bears little similarity to Mr Catlin's.8 Apart from thehigh blood alcohol level, the offending in that case was less serious. The driving faultinvolved the running of a red light which, while inherently dangerous, does not appearto have involved speeding or otherwise driving recklessly. The injuries to the victimswere less severe, and, importantly, the offender was a 19 year old with no previousconvictions. He did not flee the scene and his actions fell into a different bracket ofculpability for this type of offending.6 Criminal Procedure Act 2011, s 250.7 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].8 Mankipersadh v R [2011] NZCA 452.[22] R v Fallowfield was another sentencing decision referred to in support of theappellant's argument.9 In that case the disqualified offender deliberately accelerated,causing his wheels to spin. He lost control of his vehicle and went over the centrelinecolliding with another vehicle. It is debatable whether that driving, described as"exhibitionist wheel spinning" was any less culpable than the driving in the presentcase, but the overall sentence of three years cannot be viewed as being out of step withthe final sentence imposed for the present offending. The Court of Appeal observedthat where the consumption of drink is heavy, the conduct reckless or worse and theconsequences serious, terms of imprisonment of up to three years or more should beexpected. In that case a sentence of three years imprisonment was upheldnotwithstanding the entry of a guilty plea.Conclusion[23] There is a range of sentence available for this type of offending depending onwhere it sits on the scale of seriousness and the offender's individual circumstances.However, the combination of factors present in this case, including a high level ofintoxication, speed and recklessness, critical injuries to the victim, and Mr Catlin'sfailure to stop and remain at the scene, justified the ultimate sentence imposed. Theappeal is therefore dismissed.Solicitors:Liam Collins Barrister, QueenstownCrown Solicitor, Invercargill9 R v Fallowfield [1996] 3 NZLR 657 (CA).