PELTZER v NEW ZEALAND POLICE [2022] NZHC 1572

PELTZER v NEW ZEALAND POLICE [2022] NZHC 1572 [4 July 2022]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2022-404-000178[2022] NZHC 1572BETWEEN REBECCA LOUISE PELTZERAppellantAND NEW ZEALAND POLICERespondentHearing: 28 June 2022Appearances: Sue Kim for the Appellant (via VMR)Matthew Mortimer-Wang and Fiona Wu for the RespondentJudgment: 4 July 2022JUDGMENT OF MOORE J[Appeal against sentence]This judgment was delivered by me on 4 July 2022 at 3:00 pm.Registrar / Deputy RegistrarDate:Introduction[1] Rebecca Louise Peltzer pleaded guilty to one charge of dangerous driving1 andone charge of driving with blood containing a controlled drug.2 On 5 May 2022, JudgeN R Dawson sentenced her to 120 hours' community work, 12 months'disqualification from driving, 12 months' supervision, and payment of an analyst's feeand medical costs.3[2] Ms Peltzer now appeals her sentences of community work and disqualificationfrom driving on the grounds that the sentencing Judge:(a) failed to make any adjustment for the totality principle;(b) failed to give weight to her medical condition as part of thecircumstances of the offending;(c) failed to give appropriate weight to her previous good character andrehabilitation efforts; and(d) failed to give appropriate weight to her circumstances and mitigatingfeatures when imposing the disqualification.The facts[3] The dangerous driving charge arose from an incident at about 8:15 pm on15 September 2020. Ms Peltzer was driving her car on the Coatesville-RiverheadHighway in Coatesville. She was seen driving erratically, swerving between lanes,crossing the centre line and driving into oncoming traffic. A member of the publicreported her car's details to the Police. Shortly afterwards, her car was found stopped.Although it is not entirely clear from the summary, it seems that a member of the1 Land Transport Act 1998, s 35(1)(b) and (2). Maximum penalty of three months' imprisonmentor a fine not exceeding $4,500, and disqualification from holding or obtaining a driver licence forat least six months.2 Land Transport Act 1998, s 58(1)(b) and (2). Maximum penalty of three months' imprisonmentor a fine not exceeding $4,500, and disqualification from holding or obtaining a driver licence forat least six months.3 Police v Peltzer [2022] NZDC 9155.public must have stopped and saw Ms Peltzer in the driver's seat. She wasunconscious and unresponsive. An ambulance was called.[4] However, before the ambulance arrived, Ms Peltzer regained consciousnessand drove off. She veered across the centre line onto the wrong side of the road andinto the path of an incoming Police car, causing it to brake heavily. The cars narrowlyavoided a head-on collision. The Police stopped and spoke to Ms Peltzer. Thesummary describes her as displaying "abnormal physical behaviour". She was seento be unsteady on her feet and talking incoherently. She underwent compulsoryimpairment testing procedures, which the summary says she did not complete "in asatisfactory manner". She was directed to undergo a blood test. A medical officermade several unsuccessful attempts to obtain a blood sample. Whether this was dueto a lack of co-operation on Ms Peltzer's part, or technical or other difficulties in themedical procedure or for any other reason is left unexplained.[5] The other driving charge arose out of events about six months later. This wasdriving with blood containing a controlled drug. At 4:39 am on 5 May 2021, the Policewere called to Bush Road in Albany. It had been reported there was a car in the middleof the road. The attending Police found Ms Peltzer slumped over the wheel. She wasunresponsive. She woke up. She was seen to exhibit signs of recent drug intake. Acompulsory impairment test was conducted and a blood sample taken. This wassuccessful. The sample was found to contain methamphetamine.District Court decision[6] Judge Dawson highlighted the applicable sentencing principles, being the needfor Ms Peltzer to be held accountable, denunciation for her conduct and, given hercircumstances, rehabilitation.[7] The Judge observed that there were no aggravating factors relating toMs Peltzer's offending. On account of personal factors he applied a 20 per cent guiltyplea discount. He noted that she had no previous convictions and allowed a furtherfive per cent discount for her past good character.[8] On the dangerous driving charge, the Judge adopted a starting point of 80 hoursof community work. Discounting this for the identified mitigating factors, that startingpoint was adjusted to 60 hours of community work. He disqualified Ms Peltzer fromdriving for six months, which he backdated to 29 September 2021, the date when hewas satisfied she could have entered a guilty plea (but for COVID-19 relateddisruptions). He also sentenced her to 12 months' supervision.[9] On the charge of driving with blood containing a controlled drug, the Judgeapplied a starting point of 80 hours of community work, which he similarly discountedto 60 hours. He imposed cumulative community work sentences, leading to a total of120 hours. He then cumulatively imposed another six month disqualification fromdriving.[10] The Judge also imposed a concurrent sentence of supervision and orderedpayment of the analyst's fee and medical costs.Approach to sentence appeals[11] This Court must allow the appeal if there is an error in the sentence imposedand a different sentence should be imposed.4 Otherwise, the Court must dismiss theappeal.5[12] The sentence must be manifestly excessive before the appeal court maysubstitute its own views as to the appropriate sentence. The Court "will not intervenewhere the sentence is within the range that can properly be justified by acceptedsentencing principles".6 Whether a sentence is manifestly excessive is to be assessedin terms of the sentence given, rather than the process by which it is reached.74 Criminal Procedure Act 2011, s 250.5 Section 250(3).6 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36]; and Te Aho v R [2013] NZCA47 at [30].7 Ripia v R [2011] NZCA 101 at [15].Did the Judge fail to take into account the totality principle?[13] Ms Kim, for Ms Peltzer, submitted that because both charges are of a similarnature the totality principle should apply. On that basis she submitted that the chargeof driving with blood containing evidence of use of controlled drug should have beendealt with either by way of a concurrent sentence or by way of a modest uplift on thedriving in a dangerous manner charge.[14] Mr Mortimer-Wang, for the Police, submitted that the end sentence was notmanifestly excessive. He referred to Robarts v Police.8 While Mr Robarts facedsignificantly more driving charges, some of which were more serious than the present,9components of his sentence included 90 hours community work on each of twodangerous driving charges and 60 hours community work on an excess breath alcoholcharge.10 Those sentences were imposed cumulatively.11[15] On that analysis, he submitted that the 120 hours of community work imposedfor Ms Peltzer's offending could not be characterised as manifestly excessive.[16] Ms Kim also submitted that the Judge appears to have drawn the inference thatMs Peltzer's dangerous driving offending also involved driving whilst under theinfluence of drugs. Doing so would be an error as the defendant ought to be sentencedbased on the accepted summary of facts.[17] Mr Mortimer-Wang submitted that the Judge did not sentence Ms Peltzer onthe basis that her dangerous driving charge was aggravated by the consumption ofdrugs. Indeed, there is nothing in the sentencing notes on which such an inferencecould be drawn. But even if the Judge had, Mr Mortimer-Wang submitted thesummary of facts and material put before the Court provided a solid evidential basisfor such an inference to be drawn.8 Robarts v Police [2014] NZHC 666.9 At [12]–[13].10 At [17].11 At [17].[18] There is nothing in what the Judge said which supports the appellant'ssubmission. On my reading of his comments, I am not persuaded that the Judgesentenced Ms Peltzer on the basis that she was affected by methamphetamine at thetime of her offending. Had he done so, the starting point on the dangerous drivingcharge would likely be different – Ms Peltzer's driving during this incident was moredangerous than the second incident, so a higher starting point would be called for ifthe first was equally aggravated by intoxication. Further, he did not refer to drug usein relation to the first charge when sentencing Ms Peltzer.[19] I also accept Mr Mortimer-Wang's submission that the offending is serious.On the first occasion, Ms Peltzer's driving was of sufficient concern for a member/sof the public to report it. She was swerving between lanes, crossing the centre lineand driving into oncoming traffic. She was then found unconscious behind thesteering wheel. An ambulance was called. Before either it or the Police arrived,Ms Peltzer regained consciousness and took off again. A near head on collision witha Police car was narrowly averted. Viewed on its own this was extremely dangerous,even life-threatening, driving. It justifies the starting point of 80 hours' communitywork.[20] As for the second charge, aspects of the aggravating features are disturbinglysimilar to the first. Ms Peltzer's car was found in the middle of the road. She wasunresponsive and slumped over the wheel. Methamphetamine was found in her blood.While the manner of driving which necessarily preceded this is unknown, theimplications for public safety are obvious. That no one was seriously injured in eitherincident is remarkable. That fortune does not operate to reduce Ms Peltzer'sculpability. Viewed in that way I am again satisfied the starting point of 80 hours'community work is justified.[21] It is against those circumstances that I turn to consider the question of totality.That the Judge did not expressly refer to the totality principle is far from fatal.12 Evenwhere cumulative sentences are imposed the omission to refer to totality is not12 Kite v R [2018] NZCA 485 at [21].necessarily an error of principle. Here the sentencing Judge was very experienced. Itis hard to accept he was not alive to the requirement to maintain proportionality.[22] In any event, I am easily satisfied that a sentence of community work totalling120 hours as adjusted for personal factors cannot be said to be manifestly excessivegiven the circumstances of the offending. I leave the question of the period ofdisqualification to later in this judgment.Did the Judge fail to give adequate weight to Ms Peltzer's medical condition?[23] On this appeal the question of Ms Peltzer's neurological condition at the timeof the dangerous driving assumed a good deal more focus than it did in the DistrictCourt. For that reason I shall deal with it separately.[24] In relation to the first episode of offending, Ms Kim submitted that someexpress allowance should have been given for a medical condition from whichMs Peltzer claimed she was suffering at the time.[25] Ms Peltzer asserted that about two hours before the first incident she fell froma stool at her home and hit her head. She said she suffered concussion. The sentencingnotes make no mention of this despite medical records being submitted in support ofthis claim.[26] At the hearing before me counsel traversed the question of whether, if thisaspect was relied on as a mitigating factor, there should have been a disputed factshearing under s 24 of the Sentencing Act 2002 and whether the proper course mightbe to remit the matter back to the District Court for that purpose. Ms Kim advised shedid not have instructions but would obtain them and report back to the Court.[27] Later that day I received a joint memorandum of counsel in which counselagreed, pursuant to s 9 of the Evidence Act 2006, that the following could be admittedon the appeal by consent; that Ms Peltzer had reported that she had hit her head whenshe fell from a stool shortly before she drove on 15 September 2020 and that hittingher head may have contributed to her dangerous driving, to the extent that it issupported by the two medical reports which were also admitted by consent. Counselobserved that with these admissions the evidential picture before the sentencing Judgewas formalised. The Court was invited to assess the weight which could be placed onthe evidence and the extent to which it affects Ms Peltzer's culpability for sentencingpurposes. It is to that issue I now turn.[28] The medical records are comprised of two documents:(a) an ACC referral/work capacity certificate dated 17 September 2020issued by general practitioner Dr Nicola Roberts; and(b) a neurology report issued by Dr Camelia Soo dated 20 August 2021(recording a consultation on 11 August 2021).[29] The first reveals that on 17 September 2020, that is two days after the firstincident of offending, Ms Peltzer reported to a local medical practitioner that as aconsequence of the domestic accident, she suffered concussion. The certificate statesthat Ms Peltzer was able only to perform sedentary duties for four hours a day for thefollowing 10 days.[30] Eleven months later, and three months after the second incident of offending,Ms Peltzer was assessed in the neurology unit at Auckland Hospital by Dr Soo. Theresulting report referred to Ms Peltzer's claim of memory loss as a result of thedomestic accident, and that this and other symptoms and/or behaviours were observedby a member of the public who saw her erratic driving later that evening before thePolice intervened. This report also referred to Ms Peltzer experiencing another"unusual episode" in April 2021. Dr Soo referred to reviewing clinical notes whichdescribed a member of the public "finding her out of her car sweating and havingrepetitive questioning with someone else holding her sitting up". Whether this was,in fact, the second offending, albeit wrongly dated, or another unrelated but strikinglysimilar driving event, is unclear.[31] As noted, the Judge in his sentencing remarks did not refer to Ms Peltzer'sassertion of a contributing head injury. That is not to say that he did not consider it.In any event, it is a matter which counsel agree I may take into account on appeal.[32] I reject the proposition that the effects of the domestic accident may havecontributed to the dangerous driving which followed a few hours later for the reasonswhich follow.[33] First, the medical reports do not constitute independent evidence tending tocorroborate Ms Peltzer's account. Dr Roberts' report is simply evidence thatMs Peltzer attended her clinic two days after the first offending and reported thedomestic accident which she said caused her to be concussed. It is evidence of a self-report only. Dr Soo's report, although more fulsome and detailed, repeats whatMs Peltzer told her. It discusses possible diagnoses based on Ms Peltzer's account andrecommends further tests (the results of which are not known). No neurologicalpathology or other abnormality was detected. This uncertain state of affairs is reflectedin Dr Soo's conclusion that because "the cause of her turns are unclear at present", shewas not to drive "for 12 months or until the cause of her memory loss is clear".[34] Secondly, and significantly in my view, was Ms Peltzer's assertion to Dr Soothat no drugs or alcohol were involved and that she did not use drugs recreationally.That assertion is plainly at odds with the charge and summary to which she pleadedguilty. That this was not disclosed to Dr Soo when it ought to have been not onlymeans that little or no weight can be given to any aspect of the medical report, but alsocalls into question any assertion by Ms Peltzer that the domestic accident and itssequelae had any influence on what happened a few hours later. In fact, the pre-sentence report prepared for the dangerous driving charge records that Ms Peltzeradmitted she had consumed about half a gram of methamphetamine or more over theprevious weekend but at the time of the offending was not under the influence of thedrug. It also records that she started smoking a "joint" at 15 and also "dabbled" withmethamphetamine but more "speed" when she was that age. Her drug use increasedin her early twenties. She said she currently used methamphetamine and ecstasy onan irregular basis when in a party setting. None of this, it seems, was shared withDr Soo despite the plain purpose of the consultation.[35] Thirdly, even Ms Peltzer does not seem to strongly press this circumstance inmitigation. In counsel's written submissions in the District Court the submission wasexpressed in the following way:"Ms Peltzer believes that her manner of driving and poor judgment call todrive that day was somewhat influenced by the head injury she suffered earlieron the day"(emphasis added)[36] I therefore do not consider that these circumstances mitigate Ms Peltzer'soffending.Did the Judge fail to give an appropriate discount for Ms Peltzer's personalmitigating factors?[37] Ms Kim submitted that the Judge erred in failing to give sufficient discount forMs Peltzer's previous good character. Ms Peltzer, at the age of 35 at the time of theseconvictions, had not been previously convicted and has been a contributing memberof society as a self-employed insurance broker. Her convictions alone would have asignificant impact on her. Referring to Davidson v R and R v Findlay, Ms Kimsubmitted a 25 per cent discount would have been appropriate.13[38] Mr Mortimer-Wang submitted that the five per cent discount the Judge allowedin recognition of Ms Peltzer's previous good behaviour was appropriate, especiallywhere it was afforded to both charges. That approach allowed her to obtain the benefitof a reduction for previous good character for quite separate and unrelated offendingwhich took place months after her dangerous driving charge.[39] Ms Kim also submitted that the Judge erred in failing to give any considerationto Ms Peltzer's rehabilitative efforts. She pointed to Ms Peltzer's voluntaryengagement with Community Alcohol and Drug Services ("CADS") beforesentencing. Although the amount of treatment completed prior to sentencing was notsignificant, she submitted that Ms Peltzer's efforts should be recognised by a discount.13 Davidson v R [2011] NZCA 356; and R v Findlay [2007] NZCA 553.[40] On this point Mr Mortimer-Wang pointed out that Ms Peltzer had not engagedwith CADS to any degree which might meaningfully translate to a sentence reduction.He also noted that no further evidence of subsequent CADS engagement had beenproffered on appeal.[41] I agree with the Judge that a discount of five per cent to account forMs Peltzer's good character was warranted. Having reviewed counsel's writtensubmissions in the District Court it appears no discount for rehabilitative efforts wassought. I can see no principled basis on the material before me to criticise the Judgeon this account. There was no error. Although some allowance might have been madefor this factor it would necessarily have been modest and would, most certainly, nothave affected the end sentence to any material extent.Did the Judge err by imposing cumulative disqualifications from driving?[42] Ms Kim submitted that imposing the two six month disqualifications on acumulative basis resulted in a sentence which was manifestly excessive.[43] She referred me to Ireland v Police.14 Mr Ireland was originally sentenced to18 months' disqualification on two charges of driving whilst suspended and one chargeof driving with excess blood alcohol.15 Each attracted a six-month disqualification butwas ordered to be served cumulatively.16 On appeal a concurrent disqualification of10 months was imposed on all three charges.17 The disqualification was alsobackdated in consideration of Mr Ireland's employment, which was considered to bean important part of his rehabilitation.18[44] Ms Kim submitted Ms Peltzer's case is analogous. She submitted that a totaldisqualification of less than 10 months would be appropriate. While accepting thatcumulative disqualification is appropriate for particularly aggravated offending, shesubmitted this is not such a case; there was no accident, no injury and no fleeing.14 Ireland v Police [2021] NZHC 3202.15 At [13].16 At [13].17 At [36].18 At [13] and [36].[45] Furthermore, Ms Kim submitted that because Ms Peltzer works as a self-employed insurance broker, having reliable transportation is essential to her job. Theuse of her car is also needed to fully participate in supervision. Barriers to employmentand rehabilitation do not meet the principles and purposes of sentencing, especially inlight of Ms Peltzer's good character. A concurrent disqualification period of eightmonths on both charges is appropriate, she submitted.[46] Mr Mortimer-Wang submitted that, on the authority of Leaupepe v Police, thediscretion available to the sentencing Judge when assessing the length of thedisqualification is broad and that comparisons between cases is a less reliable guidethan is the case for a conventional sentencing.19 While he accepted disqualificationwill adversely impact on Ms Peltzer's employment and rehabilitation, the punitive andprotective purposes of disqualification are of equal importance. Further, in regard tothe need to work, he pointed out that Ms Peltzer may apply for a limited licence to lether drive for work purposes.[47] I do not consider Ireland v Police to be analogous. A first or second charge ofdriving while suspended is not as serious as dangerous driving. In my assessment, thecumulative effect of the two six month disqualifications is not manifestly excessivehaving regard to all the circumstances.Did the Judge backdate the disqualifications to the correct dates?[48] Finally, Ms Kim turned to address the Judge's backdating of thedisqualifications. On account of her medical presentation Waka Kotahi stoodMs Peltzer down from driving in April 2021. Based on a report from Dr Soo dated21 December 2021, she was given a clearance to drive on 3 March 2022. By the timeof sentencing, which had been delayed for reasons relating to COVID-19, she had beenlegally off the road for 11 months.[49] Ms Kim submitted that Ms Peltzer's first case management hearing, being herfirst opportunity to have pleaded guilty, was on 7 September 2021, rather than the29 September 2021 date to which the Judge backdated the disqualification. Ms Kim19 Leaupepe v Police [2015] NZHC 1766 at [8]–[9].also notes that Ms Peltzer pleaded guilty to the charges on 2 March 2022. This isearlier than the date to which the second disqualification was backdated.[50] Ms Kim suggests that a "clerical oversight" may have been made by the Judgein terms of the dates of the disqualification. She first submitted that the 12 monthdisqualification should be backdated to April 2021, when Ms Peltzer was legally stooddown from driving on medical grounds by Waka Kotahi. Alternatively, it should bebackdated to 7 September 2021 because that was the date Ms Peltzer could haveentered a guilty plea had it not been for the COVID-19 restrictions.[51] Mr Mortimer-Wang opposed backdating the disqualification to April 2021. Hepointed out that the 12 month stand down period was imposed for health and safetyreasons to protect Ms Peltzer and other road users, based on Ms Peltzer's self-report.Mr Mortimer-Wang submitted that the stand down period was unrelated to theoffending. Further, he said that the deterrence and punishment purposes ofdisqualification would be undermined if they were considered to be interchangeablewith a medically justified stand down period.[52] Despite this, he responsibly did not oppose backdating the first period ofdisqualification to 7 September 2021 if Ms Peltzer or her counsel could establish thatwas the date she could have appeared for a case review hearing and entered a guiltyplea. Likewise, he did not oppose backdating the second disqualification to2 March 2022 on a similar basis. Mr Mortimer-Wang acknowledged that thesechanges would accord with Judge Dawson's apparent intent in imposing the sentence.[53] I agree that the periods of disqualification should not be reduced on account ofthe stand down period for the reasons given by Mr Mortimer-Wang. However, I amsatisfied that backdating the commencement of the disqualification periods is theproper approach and should be adopted. Ms Kim's assurances, as an officer of thisCourt, as to the earliest opportunity for her client to have pleaded guilty must beaccepted on their face.Result[54] I thus allow the appeal in part.[55] The first period of disqualification from holding or obtaining a driver licenseis backdated to 7 September 2021.[56] The second period of disqualification from holding or obtaining a driverlicense is backdated to 2 March 2022.[57] The balance of the sentence imposed by the Judge remains.Moore JSolicitors:Public Defence Service, North ShoreCrown Solicitor, Auckland