CHAND v POLICE [2017] NZHC 1141

CHAND v POLICE [2017] NZHC 1141 [29 May 2017]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCRI-2017-404-000113[2017] NZHC 1141BETWEEN RAHESHWAR CHANDAppellantAND NEW ZEALAND POLICERespondentHearing: 29 May 2017Appearances: J Kincade for AppellantJ Bull for RespondentJudgment: 29 May 2017JUDGMENT OF WOOLFORD JCounsel/Solicitors:Meredith Connell (Crown Solicitor) AucklandJ Kincade, Barrister, AucklandIntroduction[1] Raheshwar Chand was sentenced to 11 months imprisonment in the Auckland District Court on 29 March 2017 on two charges. One charge was for driving a motor vehicle while the proportion of alcohol in his breath exceeded 400 micrograms of alcohol per litre of breath, in that it was 1,003 micrograms of alcohol per litre of breath, he having been convicted at least twice previously of a similar offence.1 The other was for driving while disqualified.2 He now appeals against sentence. The sole issue is whether the sentence of 11 months imprisonment should have been commuted to a sentence of community detention and intensive supervision.Facts of offending[2] The summary of facts noted Mr Chand's previous convictions for drivingwith excess breath alcohol and the imposition of a further period of disqualification when he last appeared in court on 27 September 2016.[3] On Friday 23 December 2016 at about 1.05am Mr Chand was the driver of a motor vehicle on Nuffield Road, Newmarket, Auckland. The vehicle was stopped by the police for exceeding the speed limit. Mr Chand exhibited signs of recent alcohol intake and breath test procedures were carried out. An evidential breath test wastaken and Mr Chand's breath was found to contain 1,003 micrograms of alcohol per litre of breath. Mr Chand admitted the facts as outlined and in explanation stated he had consumed alcohol earlier at his work address and he was test driving a car for a customer.Criminal history[4] Mr Chand has a moderate criminal history built up over the past eight years. He has received a variety of sanctions including fines, reparation, disqualification, community work, home detention and imprisonment. His driving related convictions are:1 Land Transport Act 1998, ss 56(1) and 56(4), which carries a maximum penalty of two years imprisonment or a fine not exceeding $6,000.2 Land Transport Act 1998, ss 32(1)(a) and 32(4).Offence date Court date Offence and Sentence30 January 2009 13 February 2009 Excess breath alcohol, 536mcg/L$450 fine, six months disqualification17 April 2009 26 May 2009 Driving while disqualified$500 fine, six months disqualification17 April 2009 26 May 2009 Excess breath alcohol, 707mcg/L150 hours community work, one year'sdisqualification20 September 2012 20 January 2015 Excess breath alcohol, 923mcg/LSix months home detention, indefinitedisqualification26 September 2014 20 January 2015 Excess breath alcohol, 950mcg/LSix months home detention, two yearsdisqualification17 September 2015 27 September 2016 Driving while disqualified30 days imprisonment, six monthsdisqualification17 September 2015 27 September 2016 Failing to remain stoppedConvicted and discharged23 December 2016 29 March 2017 Driving while disqualifiedEight months imprisonment, 15 monthsdisqualification (under appeal)23 December 2016 29 March 2017 Excess breath alcohol, 1,003mcg/L11 months imprisonment, indefinitedisqualification (under appeal)Appellant's submissions[5] Over eight years, Mr Chand has had five drink driving convictions with steadily rising alcohol levels from 536 to 707 to 923 to 950 and now 1,003mcg/L. In addition, Mr Chand has five convictions for breaches of community work in 2009, 2014 and 2015, two convictions for breach of home detention conditions in 2013 and a representative conviction for breach of post-detention conditions in 2015 for which he received 10 days imprisonment on 27 September 2016.[6] The appellant submits that the final sentence of 11 months imprisonment was not the least restrictive outcome appropriate in the circumstances in accordance withs 8(g) of the Sentencing Act 2002. In particular, the appellant submits that the sentencing Judge fell into error in three particular respects:(a) The Judge was wrong to reject the appellant's claim that he was working on the night in question. Mr Chand's employer has since been able to confirm that he was working late that night and that it was not unusual to consume alcohol on the premises;(b) The Judge did not have access to a pre-sentence report regarding the address proposed by Mr Chand as appropriate for an electronically monitored sentence; and(c) The Judge was not fully informed of Mr Chand's family obligations.Mr Chand, in addition to having two children and an aged father whorequires assistance, is also a father figure to his partner's daughter.Mr Chand would both enjoy the support of his family if he was released and is an important support to those around him.AnalysisFacts of offending[7] The director of Newmarket Auto Repairs who employs Mr Chand as a service manager confirms in an affidavit dated 12 May 2017, that on 23 December 2016 he went home, while Mr Chand chose to stay back and finish work on acustomer's car. The director also says that it was not unusual to have a beer or two at the end of the day and Mr Chand later told him that he had some beers while finishing the car that night.[8] In her sentencing remarks the Judge noted:[6] You admitted that you had consumed alcohol earlier at work and claimed you were test driving a car for a customer. At 1.05 in the morning on Nuffield Street, absolutely drunk, that as you know is nonsense. So you were driving whilst disqualified, it was the early hours of the morning, you were speeding and your alcohol intake was at an extremely high level.[9] The sentencing Judge chose to disbelieve Mr Chand that he was test driving acar for a customer, presumably because of Mr Chand's very high level ofintoxication, the late hour and the excessive speed at which the car was driven in a short narrow road with retail stores and restaurants on both sides of the street.Although it now appears that Mr Chand was in a customer's car, the Judge was right to question whether Mr Chand's dangerous driving behaviour could be seen as a legitimate test drive of a customer's car.Pre-sentence report[10] The sentencing Judge did have a PAC report from the Department of Corrections. Mr Chand had provided the Department with an address at which he would be able to serve an electronically monitored sentence, but the Department advised the Court that a technical assessment of the address had not been completed and an electronically monitored sentence could not be recommended at that time.[11] In her sentencing remarks, the Judge stated:[13] Because there were technical difficulties with the proposed address for an EM sentence, Mr Meehan has asked for an adjournment which I declined because I would not be sentencing you to home detention anyway. You have had it before, you have breached it twice, you have breached post- detention conditions a number of times, you simply cannot be trusted to abide by that sentence. You do not think that your alcohol consumption is problematic which is a matter of real concern because it clearly is and while you refuse to face reality, you will continue to reoffend.[12] I am of the view that it was open to the sentencing Judge to determine that an adjournment of the sentencing and a second report was not necessary given her conclusion that home detention was not appropriate.Mr Chand's family circumstances[13] Mr Chand's partner also requests in an affidavit dated 11 May 2017 that theCourt amend her partner's sentence so that they can ensure that he gets the help he needs and to allow them to plan their future as a family. She says that Mr Chand is a compassionate person who is family orientated and he is a supportive, reliable, responsible and honest partner. While Mr Chand has been in custody his partner hasbeen seeing his father every other day. She says that Mr Chand's relationship withher daughter is also very caring and that her daughter looks up to him as a father. She is apparently very happy with him being around and feels safe.[14] In her sentencing remarks the Judge stated:[17] Your mother died in a car accident last year. If that does not bring home to you how dangerous your behaviour is on the road and the fact that you or somebody else could be killed, I do not know what will. But I take into account the loss of your mother has contributed to the sense of grief which you have not dealt with. You have two young children, you have an aged father who needs your help, he has diabetes and other illnesses and I have sighted a reference which shows that you have been good employee.[18] I therefore deduct 15 per cent for your personal circumstances[15] I am of the view that although the partner's affidavit may shed further light on Mr Chand's personal circumstances, the sentencing Judge gave clearconsideration to them and gave a discrete discount to reflect them. The 15 per cent discount was appropriate in the circumstances. None of the further material provided to the Court demonstrates error on the part of the sentencing Judge.Conclusion[16] Sentencing is an art and not a science. A judge has to weigh up a number of competing considerations to arrive at a just result. Here the Judge has given primacy to public safety, rather than rehabilitation, although she has not forgotten rehabilitation entirely as she directed that there be special conditions upon Mr Chand's release for six months beyond the expiry of his sentence to include a requirement that Mr Chand undergo any alcohol and drug programmes or counselling as directed.[17] In my view, the Judge was entitled to prefer a sentence of imprisonment to a sentence such as community detention and intensive supervision, which is more focused on rehabilitation.[18] The PAC report identified the main factors in Mr Chand's offending as hissense of entitlement, poor decision making, offending supportive attitudes and alcohol abuse. The report noted that Mr Chand has had a number of rehabilitative sentences and has attended numerous programmes. However, the factors behindMr Chand's offending have not been successfully addressed. The report writer was of the opinion that until these factors were fully addressed and Mr Chand took responsibility for his offending, he may continue this pattern of offending. Mr Chand's likelihood of reoffending was therefore assessed as high and his abilityto comply with a community based sentence was also assessed as low.[19] When asked by the report writer about his alcohol use, Mr Chand stated that he did not think his alcohol use was problematic. He told the report writer when he was interviewed in March 2017 that he had abstained from consuming alcohol since January, but the report writer noted that Departmental records indicated this was afamiliar claim from Mr Chand. Mr Chand's partner does not claim that he has abstained from alcohol since January. Instead, in her affidavit dated 11 May 2017,she states "Raheshwar cut down on his drinking a lot after the incident on the23rd December 2016. Even though he did not join any rehabilitation programmes.Raheshwar tried his absolute best to control his drinking". He obviously continuesto drink and has not made any effort to attend rehabilitative programmes voluntarily.[20] I am of the view that in these circumstances a sentence of imprisonment was an available sentence. Lesser sentences have proved inadequate. Denunciation, deterrence and public safety are central considerations in a case where a recidivistdrink driver's offending has increased in seriousness over time. The Judge did not err in imposing a sentence of imprisonment on Mr Chand.[21] The appeal is dismissed._________________________Woolford J