JOSEPH v POLICE [2019] NZHC 571

JOSEPH v POLICE [2019] NZHC 571 [26 March 2019]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI-2019-419-000007[2019] NZHC 571BETWEEN RAWINIA JOSEPHAppellantAND NEW ZEALAND POLICERespondentHearing: 25 March 2019Counsel: RT Nye-Wood for AppellantASC Alcock for RespondentJudgment: 26 March 2019JUDGMENT OF DOWNS JThis judgment was delivered by me on Tuesday, 26 March 2019 at 11 am.Registrar/Deputy RegistrarSolicitors/Counsel:Crown Solicitor, Hamilton.Public Defence Service, Hamilton.The appeal[1] Ms Rawinia Joseph appeals sentence. On 14 December 2018,Judge A S Menzies sentenced Ms Joseph to a 13-month term of imprisonment anddisqualified her from driving for two years.1 Ms Joseph contends her sentence ismanifestly excessive. She argues the Judge ought to have imposed shorter terms ofimprisonment and disqualification.Background[2] On 9 May 2018, Ms Joseph drove with excess breath alcohol: 509 microgramsof alcohol per litre of breath. Ms Joseph has two earlier convictions for this offending,both in 2012.[3] In August, September and October 2018, Ms Joseph stole groceries from twosupermarkets and a bottle of oil from a service station. Ms Joseph twice failed toappear in Court. She also completed only an hour and a half of a sentence of 40 hours'community work imposed in February 2018 (on a charge of theft).[4] Hence the charges of driving with excess breath alcohol, theft (x 3), breachingbail (x 2) and breaching community work.[5] Judge Menzies adopted these starting points and discounted the 18-month totalby 25 percent for Ms Joseph's guilty pleas:Excess breath alcohol 8 months3 x shoplifting + 4 months2 x failing to answer bail, andhistory+ 2 monthsThe balance of matters, historyfor breaches and dishonesty+ 4 months1 Police v Joseph [2018] NZDC 26424.Starting point for the excess breath alcohol offence[6] Ms Joseph contends the starting point ought not have been more than fourmonths. Police acknowledge an eight-month starting point is "stern".[7] Police rely on Ngatikai v Police.2 An eight-month starting point was upheld inthat case. The offence was Ms Ngatikai's fourth. All her drink-drive offendingoccurred within five years. The reading was 899 micrograms of alcohol per litre ofbreath. Ms Ngatikai had been "swerving in her lane".3[8] More similar is Coles v Police.4 Mr Coles successfully challenged an eight-month sentence of imprisonment in relation to one charge of driving with excess breathalcohol. The drink-drive charge was his fourth offence of that kind. His reading was667 micrograms of alcohol per litre of breath. Panckhurst J described the term as"clearly excessive". The Judge substituted a five-month prison sentence.[9] Coles is now a little old; it contains no obvious discussion about starting pointsrather than end sentences. Mr Coles pleaded guilty very promptly. He was young too(20). So, Panckhurst J's starting point must have been about eight or nine months'imprisonment, for, as observed, a fourth instance of drink-driving absent otheraggravating factors.[10] Unlike Ms Ngatikai's, Ms Joseph's driving was otherwise unremarkable.5 Herreading was lower than Ms Ngatikai's too. Ms Joseph has two earlier convictions foroffending of this type—not three. And as observed, both were in 2012. So, her caseis more like Mr Coles'. All this suggests the starting point should not have exceededsix months' imprisonment.Starting point for the theft charges[11] Ms Joseph submits this ought to have been three months, not four.2 Ngatikai v Police [2014] NZHC 3294.3 At [2].4 Coles v Police HC Christchurch CRI-2007-409-000161, 23 August 2007.5 Clotworthy v Police (2003) 20 CRNZ 439 encourages a multi-factorial assessment of culpability.[12] No tariff exists in this area. The starting point will "necessarily be dictated bythe value of the items stolen, and the offender's previous criminal history".6Ms Joseph stole less than $1,000 worth of goods, but she did steal three times withinas many months. And, she has a record of dishonesty.[13] These factors and sentencing discretion imply the availability of a four-monthstarting point.Starting points for the other matters—and totality[14] Ms Joseph submits the starting point for the balance of her offending, includingthe substituted sentence for breach of community work, ought not have exceeded fourmonths. She notes the Court of Appeal has emphasised the need for substitutedsentences to remain proportionate to the gravity of the original offending.7[15] Police submit a six-month starting point was available. They highlightMs Joseph's non-compliance with community work, her breaches of bail—and record.Ms Joseph has nine convictions for breaching bail and three for breaching communitywork.[16] I consider the six-month starting point too high, albeit not for the reasonsadvanced. The sentence's components were made cumulative. The Judge was obligedto consider totality. He did not at this stage of the inquiry, at least explicitly.8 Theuplift to the starting point (of 10 months' imprisonment) should have been amelioratedaccordingly. An increase of not more than four months was thus apt, producing aglobal starting point of 14 months' imprisonment, not 18-months' imprisonment.[17] Ms Joseph pleaded guilty promptly. It is common ground 25 percent discountwas appropriate. It follows her term of imprisonment should not have exceeded 10 anda half months' imprisonment.6 Torbarina v Police [2014] NZHC 3221 at [10].7 R v Morgan [2008] NZCA 232.8 The Judge reduced the sentence by two weeks after the guilty plea discount "in the interests oftotality".Disqualification[18] Ms Joseph contends the two-year disqualification period is manifestlyexcessive. She notes this is twice the statutory minimum.[19] In McNab v Police,9 a two-year disqualification period was quashed—andhalved. Mr McNab had two earlier convictions for drink-driving, but both pre-datedthe offending by a decade. The length of the disqualification period "impose[d]difficulties for him".10 Mr McNab was also repaying an "appropriately condign" fine(of $2,000).11[20] In Fairbrother v Police,12 the same disqualification period was upheld on athird drink-driving offence. The reading was 558 micrograms of alcohol per litre ofbreath. Mr Fairbrother's driving appears to have been unremarkable. Ellen France Jconsidered six cases. Her Honour concluded an 18-month disqualification period maybe legitimately imposed for a second drink-drive conviction; a longer period for asubsequent conviction.[21] Ellen France J considered "the total sentence ... must be taken into account"when considering length of a disqualification period.13 A longer period is"countenanced where the offender is subject to a monetary penalty rather than acustodial sentence".14 Mr Fairbrother avoided imprisonment; he was fined $1,500.[22] Ms Joseph received a significant prison sentence. Her driving was otherwiseunremarkable, her alcohol level poor rather than bad. The same is true of her drivingrecord. This mix implies her disqualification period is too severe.Result[23] The appeal is allowed, and sentence quashed. Ms Joseph is:9 McNab v Police [2014] NZHC 1493.10 At [19].11 At [19].12 Fairbrother v Police HC Masterton MA16/02, 5 December 2002.13 At [23].14 At [23].(a) Sentenced to a term of 10 and a half months' imprisonment.(b) Disqualified from driving for 18 months...Downs J