HAYDE v NZ POLICE [2021] NZHC 3218

HAYDE v NZ POLICE [2021] NZHC 3218 [29 November 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2021-404-000369[2021] NZHC 3218BETWEEN SEAN HAYDEAppellantAND NEW ZEALAND POLICERespondentHearing: 15 November 2021Appearances: S Tait for Appellant A Al-Janabi for RespondentJudgment: 29 November 2021JUDGMENT OF ROBINSON JThis judgment was delivered by me on 29 November 2021 at 12:00 pmRegistrar/Deputy RegistrarSolicitors/Counsel:Crown Solicitor, Manukau.S Tait, Auckland.Background[1] On 23 July 2021 Sean Hayde pleaded guilty to one charge of driving with excess breath alcohol (for a third or subsequent time).1 Judge D J McNaughton sentenced Mr Hayde to nine months' imprisonment and disqualified him from holding or obtaining a driver license for one year and one day. 2[2] Mr Hayde now appeals against the sentence of imprisonment on the basis that the Judge failed to give proper reasons and consequently imposed a sentence that was manifestly excessive. The Crown opposes the appeal.The offending[3] On 11 April 2018, Mr Hayde appeared in the Pukekohe District Court and was convicted of driving with excess breath excess alcohol (for a third or subsequent time). He had necessarily been convicted of driving with excess breath alcohol two times prior.[4] At approximately 11.30 pm on 13 February 2020, Mr Hayde was the driver of a Holden Colorado travelling east on a street in Howick. The street is situated in a residential and commercial area. The speed limit is 60 kilometres per hour. The street has six lanes.[5] Mr Hayde was swerving all over the road. He crashed into a parked vehicle. Mr Hayde did not check whether anybody was injured, nor if the other vehicle was damaged. Instead, he continued to drive around the nearby streets. At one stage, he mounted the kerb and caused extensive damage to the front left tyre of the vehicle. The tyre separated from the rim, but Mr Hayde continued to drive around. This caused damage to the road.[6] Mr Hayde continued to drive around numerous nearby streets. At one point he drove on the wrong side of a roundabout. He eventually stopped the car.1 Land Transport Act 1998, s 56(1) and (4). Maximum penalty of two years' imprisonment or a fine not exceeding $6,000. The Court must also order the person to be disqualified from holding or obtaining a driver licence for more than one year.2 Police v Hayde [2021] NZDC 15215.[7] Police arrived shortly after. They conducted evidential breath test procedures. Mr Hayde's breath was found to contain 556 micrograms of alcohol per litre of breath.District Court sentencing[8] The Judge's sentencing decision is repeated in full below: 3Mr Hayde, the sentence I am imposing on this charge is not going to make any difference to your current situation given how long you have been in custody and given how long you have got to wait in custody for the trial in March next year so on this fourth EBA charge you are convicted and sentenced to imprisonment for nine months and you are disqualified for 12 months and one day from today's date.[9] This brevity of Judge McNaughton's decision is explained, at least to some extent, by the prior discussions between the Judge and Mr Hayde's counsel.[10] In these discussions counsel confirmed that Mr Hayde wanted to be sentenced at the hearing. Counsel advised that Mr Hayde was in custody on other charges, awaiting trial in March 2022, having recently been declined bail by the Court of Appeal. Through counsel Mr Hayde "invited Your Honour to consider a short term of imprisonment". Counsel did not seek to make submissions on the appropriate starting point, guilty plea discount, or any discounts for other factors personal to Mr Hayde. Consistent with that, Mr Hayde through counsel waived the a pre-sentence report. The Judge confirmed with counsel that he would note that waiver.[11] Section 26A of the Sentencing Act 2002 provides that if the court is considering a sentence of community detention or home detention, the court must direct a probation officer to prepare a pre-sentence report for the court. Section 26, however, states that the court may do so in the circumstances not covered by s 26A, including where the court imposes a sentence of imprisonment. The Court of Appeal in R v Tokinoted that "the well-established practice is that an offender should not be sentenced to a term of imprisonment, except in very rare and exceptional cases, without such a [pre- sentence] report". 4 I am satisfied that this is one of those rare cases.3 Police v Hayde, above n 2, at [1].4 R v Toki [2007] NZCA 335 at [5].Approach to appeals against sentence[12] Mr Hayde appeals his sentence under s 244 of the Criminal Procedure Act 2011. The court must allow the appeal if it is satisfied that for any reason there is an error in the sentence imposed on conviction and a different sentence should be imposed. 5[13] In Tutakangahau v R, the Court of Appeal observed that sentencing is not a science and an appellate court will not generally interfere unless the end sentence was outside the range available to the sentencing judge.6 The primary focus of an appeal against sentence is the end sentence, not the particular components in isolation.7Issues on appeal[14] The issues raised on appeal are whether the Judge erred by:(a) failing to give proper reasons for the sentence imposed; and(b) imposing an end sentence that was manifestly excessive.Did the Judge err by failing to give proper reasons for the sentence imposed?[15] Mr Tait, counsel for Mr Hayde, submitted that the sentence is manifestly excessive because the Judge failed to give reasons for his sentencing decision. In particular, he notes that the Judge failed to identify a starting point, or any aggravating and mitigating features of the offending.[16] In Lewis v Wilson & Horton Ltd, Elias CJ explained why it is generally important for Judges to provide reasons for their decisions, as follows: 8(a) to promote openness in the administration of justice; 95 Section 250.6 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [35]-[36].7 D (CA 197-2014) v R [2014] NZCA 373 at [18].8 Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 (CA). It is worth mention, however, that the Court of Appeal in Nuku v District Court at Auckland [2017] NZCA 471 at [19] noted that "there is no absolute rule that reasons must always be provided for judicial decisions".9 At [76].(b) as failure to do so means that the lawfulness of what is done cannot be assessed by a court exercising supervisory jurisdiction;10 and(c) reasons provide a discipline for the judge which is the best protection against wrong or arbitrary decisions and inconsistent delivery of justice.11[17] In a sentencing context, the Court of Appeal in Ekeroma v R noted that despite the focus on the end sentence on appeal, "it is important for the sentencing Judge to set out the process by which the sentence has been reached". 12 In R v Lunjevich, the Court of Appeal considered it "unsatisfactory" that the sentencing Judge had omitted to define a starting point for the offending. 13[18] As Ms Al-Janabi noted, however, a failure to give reasons will not necessarily result in a successful appeal. 14 The focus of an appeal is the end sentence, not how that sentence is constructed. As such, it is only if the failure to give reasons resulted in a manifestly excessive (or inadequate) sentence that an appeal should be allowed.[19] Although the absence of reasons does not by itself support the appeal, I note that it is always best practice to set out the facts of the offending (at least in brief); the starting point adopted; and the nature and size of any uplifts or discounts applied. Otherwise, those essential aspects of the sentencing process will be articulated for the first time on appeal. This is captured by Brewer J's comments in Malone v Police: 15The District Court Judge gave no reasons for his sentence. I am aware that District Court Judges frequently have to deal with lengthy sentencing lists. However, it is a requirement that reasons be given for sentences.10 At [80].11 At [82].12 Ekeroma v R [2021] NZCA 250 at [16].13 R v Lunjevich [2012] NZCA 454 at [8].14 See for example R v Jeffries [1999] 3 NZLR 211 (CA) at [16] where the Court of Appeal commented that " the giving of reasons is not an inflexible rule of universal application. The failure to do so does not automatically vitiate the decision."15 Malone v Police [2013] NZHC 88 at [6]–[7]. See also Clarke v Police [2015] NZHC 259 at [54] where Collins J held that "[e]ven though there are no reasons for the sentence which Judge Cameron imposed I am satisfied that the sentence he did impose was well within the range of sentences that were available to him."In this case I have to decide whether, in all of the circumstances, 80 hours' community work was manifestly excessive without the benefit of the District Court Judge's reasoning.[20] In this case, where the defendant invited a term of imprisonment, made no submissions and waived the pre-sentence report, the brevity of the Judge's decision is in some respects understandable. However, the Judge should still have recorded the important facts, the starting point and any discount for guilty plea. As matters stand it is impossible on appeal to determine whether the Judge imposed a 12 month starting point with a 25 per cent guilty plea discount; a 10 month starting point with a 10 per cent guilty plea discount; or some combination in between.[21] I will now turn to consider whether the Judge erred by adopting an end sentence that was manifestly excessive.Did the Judge err by imposing an end sentence that was manifestly excessive?Submissions[22] Mr Tait submits that Mr Hayde's sentence was manifestly excessive. He says that Mr Hayde's offending was only moderately serious. He therefore submits that a starting point of between six and seven months' imprisonment was appropriate, followed by a guilty plea discount of 25 per cent.[23] Ms Al-Janabi submits that the sentence imposed was within the range available to the Judge, albeit at the upper end. She submits that "seriously" aggravating features of Mr Hayde's offending include a high level of intoxication, dangerous driving, very close proximity to previous similar offending, and a prolonged and continuous history of driving-related offending. She submits that starting points of between nine and 12 months' imprisonment are generally adopted for third and subsequent excess breath alcohol offences which involve a component of unsafe driving.Approach to sentencing for driving with excess breath alcohol (for a third or subsequent time)[24] The framework for sentencing for driving with excess breath alcohol (for a third or subsequent time) in terms of aggravating and mitigating factors was set out by Wild J in Clotworthy v Police.16 Those relevant factors are: 17[a] The breath or blood alcohol level.[b] The length of time that had elapsed since the last drink driving conviction (in this respect the five year period referred to in s 65(2)(b) of the Land Transport Act 1998 is perhaps of significance).[c] Conviction for two or more drink driving offences in close succession.[d] The manner of driving: innocuous or dangerous; accident and injury resulting or neither? Sometimes this manifests itself in an additional charge(s).[e] Whether the offender was disqualified or forbidden from driving at the time (as to the latter, note the mandatory 28 day suspension period referred to in s 95 Land Transport Act 1998).[f] The plea(s) and, if guilty, whether that plea was entered at any early stage or only belatedly.[g] The sentences (in particular whether they included imprisonment) imposed for previous EBA convictions and the response (or lack of it) to those sentences.[h] The offender's record, if any, of convictions for other types of offending.[i] Any genuine remorse shown and/or willingness on the part of the offender to confront his/her contributing alcohol and/or personal problems.[j] Any mitigating personal or family circumstances contributing to the offending.[25] In Samson v Police, Whata J set out "some broad generalisations about starting points" for driving with excess breath alcohol (for a third or subsequent time) offending based on a review of a "spectrum of cases": 18(a) No seriously or only moderately aggravating factors, 9-12 months;16 Clotworthy v Police (2003) 20 CRNZ 439 (HC).17 At [20].18 Samson v Police [2015] NZHC 748 at [15]. While Whata J's footnotes are omitted, I note that he referenced a breath of authority for each range that he set out.(b) One or more seriously aggravating factors, 12-18 months;(c) Multiple offences with seriously aggravating factors, 18-20 months; and(d) Multiple offences and very serious aggravating factors (i.e. offending of the worst kind), 20-24 months.(footnotes omitted)Analysis[26] Counsel have referred to several decisions which they say are similar to Mr Hayde's offending. First, Mr Tait refers to Coles v Police. 19 In that case, Mr Cole appealed against his sentence of eight months' imprisonment for driving with excess breath alcohol of 667 micrograms of alcohol per litre of breath (alongside a breach of community work). 20 Mr Cole was stopped by police due to his "erratic driving", although it is unclear in what way his driving was erratic. 21 Panckhurst J noted that Mr Cole was "a young man aged 20 years", 22 yet he had committed four drink driving offences in two and a half years. 23 The Judge held that the sentence imposed was manifestly excessive, and substituted a sentence of six months' imprisonment (made up of five months' imprisonment for the drink driving offence and one months' imprisonment for the breach of community work).24 There was no discussion of the starting point, nor what discounts were applied.[27] Cole v Police is of limited assistance. There was no discussion of Mr Cole's "erratic driving". It provides no guidance on the starting point adopted, nor whether any discount applied in respect of his youth, guilty plea or otherwise. Mr Hayde's offending seems to be more serious than Mr Cole's. At best, the decision suggests that Mr Hayde's offending justifies an end sentence higher than five months' imprisonment.2519 Coles v Police HC Christchurch CRI-2007-409-161, 23 August 2007.20 At [1].21 At [1].22 At [4].23 At [5].24 At [16].25 Other cases representing offending of lesser seriousness referred to by counsel include Mason v Police [2017] NZHC 126 where a starting point of six months' imprisonment was adopted; andRangitonga v Police [2014] NZHC 2323 where a starting point of eight months' imprisonment was adopted. Neither case involved dangerous driving.[28] Both parties refer to Ngatikai v Police.26 In that case, Ms Ngatikai appealed against a sentence of six months' imprisonment for her fourth driving with excess breath alcohol conviction. 27 Her three prior convictions had occurred within a period of eight months, about three years before the index offending. 28 Ms Ngatikai's breath alcohol level was 899 micrograms of alcohol per litre of breath. 29 Wylie J considered that Ms Ngatikai's offending was serious in that she had a high breath alcohol reading, and her prior offending involved similarly high levels of breath alcohol. 30 He noted that Ms Ngatikai's vehicle was observed by police "swerving within its lane", although Wylie J accepted that Ms Ngataki's driving "could have been much worse". 31 Wylie J upheld the sentencing Judge's starting point of eight to nine months' imprisonment.32[29] I consider Ms Ngatikai's offending was less serious than Mr Hayde's offending. Although her breath alcohol level was higher, her erratic driving was much less serious than that of Mr Hayde. Mr Hayde drove across multiple lanes of the road, including driving on the wrong side. He further caused property damage to a parked car and then the road itself after dislodging a tyre. A starting point of greater than nine months' imprisonment is justified.[30] Ms Al-Janabi relies upon Verbitsky v Police. 33 In that case, Mr Verbitsky appealed his sentence of nine months' imprisonment for driving while disqualified and his third offence of driving with excess breath alcohol. 34 Mr Verbitsky's breath alcohol was 470 micrograms of alcohol per litre. 35 He drove erratically in the early hours of the morning with fogged up windows, on one occasion cutting a corner when making a right turn and narrowly missing a parked police vehicle. 36 He was disqualified from driving at the time.37 Dunningham J considered that a total starting point of 12 months' imprisonment for both charges was appropriate. 3826 Ngatikai v Police [2014] NZHC 3294.27 At [1] and [3].28 At [12].29 At [2].30 At [12].31 At [14].32 At [6] and [18].33 Verbitsky v Police [2016] NZHC 2843.34 At [1].35 At [5].36 At [4].37 At [4].38 At [21]-[22].[31] In my view the seriousness of Mr Hayde's offending is similar to Verbitsky. Mr Hayde's breath alcohol level was slightly higher than that of Mr Verbitsky. Mr Hayde's driving was more dangerous, taking into account the property damage he caused to the parked vehicle and the road. The fact that Mr Hayde continued to drive after crashing, and after losing a tyre, is significantly aggravating. While Mr Verbitsky drove while disqualified and Mr Hayde did not, the remaining aggravating factors of Mr Hayde's offending renders it at least as serious as that of Mr Verbitsky.[32] For these reasons I consider that a starting point of 12 months' imprisonment was well within the range available to Judge McNaughton. This places it at the top ofSamson band (a)/low end of band (b), appropriately recognising that the damage caused by Mr Hayde and his failure to stop after crashing.[33] Mr Hayde is entitled to a full guilty plea discount of 25 per cent. This reduces the 12 month term of imprisonment to an end sentence of nine months' imprisonment. This was well within the range available to Judge McNaughton. I do not consider that Mr Hayde's sentence of nine months' imprisonment was manifestly excessive.Result[34] The appeal is dismissed.__________________Robinson J