WITHERS v POLICE [2019] NZHC 1080

WITHERS v POLICE [2019] NZHC 1080 [16 May 2019]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI-2019-419-17[2019] NZHC 1080BETWEEN TIMOTHY RENATA WITHERSAppellantAND NEW ZEALAND POLICERespondentHearing: 2 May 2019Appearances: T Sutcliffe for AppellantA S Alcock for RespondentJudgment: 16 May 2019JUDGMENT OF PAUL DAVISON JThis judgment was delivered by me on 16 May 2019 at 3:45pmPursuant to r 11.5 of the High Court RulesRegistrar/Deputy RegistrarSolicitors:Crown Solicitor, HamiltonIntroduction[1] Mr Withers (the appellant) pleaded guilty in the District Court at Hamilton tocharges of driving with excess breath alcohol third and subsequent,1 and carelessdriving.2 Judge Bidois sentenced him to 160 hours' community work, and disqualifiedhim from driving for 13 months.3[2] He appeals on the ground that the sentence imposed was manifestly excessivehaving regard to the offending and to his personal circumstances. His appeal is limitedto the sentence of community work. He does not appeal the 13 month disqualificationfrom holding or obtaining a driver's licence, which he accepts was appropriate.Background[3] At around 12.30pm on Sunday 3 February 2019, Mr Withers was driving hiscar on State Highway 2 en route from Auckland to Waihi when he fell asleep and hiscar collided with a truck travelling from the opposite direction. An evidential breathtest produced a result of 714 micrograms of alcohol per litre of breath. He explainedto police that he had been working long hours during the previous week and had beendrinking at a wedding party the night before.[4] The appellant has previous convictions for driving with an excess breathalcohol level in 1991 and again in 2009. He also has three previous convictions forcareless driving in 1994, 1997, and 2002.Approach on appeal[5] The approach to be taken to an appeal brought under s 250(2) of the CriminalProcedure Act 2011 was addressed by the Court of Appeal in Tutakangahau v R.4 TheCourt said:[30] The practical effect of preserving the approach applied to date is that theappellate court does not just start afresh nor simply substitute its own opinionfor that of the original sentencer. Rather, in the words of Shipton, it must be1 Land Transport Act 1998, ss 56(1) and 56(4)2 Land Transport Act 1998, ss 8 and 37(1)3 Police v Withers [2019] NZDC 4585.4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.shown that there was an error "whether intrinsically, or as a result of additionalmaterial submitted" on appeal. If there is an error of the requisite character,the Court will then form its own view of the appropriate sentence.(footnotes omitted)[6] Where an error or errors are found to have occurred, the court's assessment oftheir significance will inform its decision as to whether a different sentence should beimposed. The Court of Appeal noted that although s 250(2) makes no expressreference to a "manifestly excessive" sentence, this concept remains engrained in thecourts' approach to sentence appeals.5[7] This Court will not lightly interfere with a sentence imposed by the DistrictCourt,6 but nevertheless must allow an appeal if satisfied that, for any reason, there isan error in the sentence imposed by the District Court and if satisfied that a differentsentence should be imposed.7 In any other case, the appeal must be dismissed.8SubmissionsThe appellant's submissions[8] Mr Sutcliffe for the appellant submits that in determining the sentence, theJudge erred by failing to give sufficient weight to the appellant's personal anddomestic circumstances. Counsel notes that the appellant is the sole caregiver for histwo daughters aged 16 years and 18 years. He says that the appellant is employed full-time as a sales manager, and works long hours during the week leaving him little timeavailable to spend with his daughters. The weekends are his only available family time,and as the community work sentence must be undertaken on a Saturday, the effect ofthe sentence is to reduce his family time by half.[9] Counsel submits that the Judge also erred by taking into account the carelessdriving offending when determining the sentence for the excess breath alcohol drivingcharge. He submits that as the maximum penalty for the careless driving charge is afine, the Judge should only have taken it into account if imposing a fine on the excess5 At [33] and [35].6 Te Aho v R [2013] NZCA 47 at [30].7 Criminal Procedure Act 2011, s 250(2).8 Section 250(3).breath alcohol charge. He submits that it appears that the Judge effectively uplifted thepenalty imposed for the excess breath alcohol charge by factoring in the carelessdriving offending, and thereby arrived at a sentence of community work,notwithstanding that the maximum penalty for the careless driving charge was a fine.[10] Mr Sutcliffe submits that the Judge ought to have imposed a fine in thesecircumstances, because the appellant's breath alcohol level did not breach the "high"ranges, and the appellant's previous drink driving convictions were 10 and 28 yearsago respectively.The respondent's submissions[11] Ms Alcock for the respondent acknowledges that a fine was a sentenceavailable to the Judge, but submits that previous cases have established that a third orsubsequent blood alcohol offending conviction exposes the convicted person to apotential prison sentence.9 Counsel submits this also applies to breath alcoholoffending.[12] Ms Alcock also refers to Rhee v Police, in which the Court dismissed an appealagainst a sentence of 200 hours' community work where it was the appellant's thirdconviction for driving with excess breath alcohol.10 The offending occurred in 2015and the appellant's previous convictions had taken place in 1997 and 2004. The Courtfound that the Judge had not made an error in sentencing the appellant, and thesentence of 200 hours community work was well within range. Counsel for therespondent submits that this illustrates that the sentence in the present case was alsowell within the range available to the Judge.[13] In response to the submission for the appellant that the community worksentence will have a substantial impact on the limited time he has available to spendwith his family, Ms Alcock submits that sentences of community work are commonlyimposed in the District Court for third time excess breath alcohol convictions, and that9 Pitman v Police [2015] NZHC 205 at [12].10 Rhee v Police [2016] NZHC 818.community work is routinely imposed on offenders with a range of personalcircumstances.[14] Ms Alcock further submits that the Judge was entitled to take the carelessnature of the appellant's driving into account as an aggravating factor.Discussion[15] Section 56(4) of the Land Transport Act 1998, provides:(4) If a person is convicted of a third or subsequent offence againstsubsection (1) or subsection (2), or any of sections 57A(1), 58(1),60(1) or (2) (whether or not that offence is of the same kind as theperson's first or second offence against any of those provisions),(a) the maximum penalty is imprisonment for a term notexceeding 2 years or a fine not exceeding $6,000; and(b) the court must order the person to be disqualified fromholding or obtaining a driver licence for more than 1 year.[16] Although the appellant's previous convictions were for offending well in thepast, they could not be ignored or entirely discounted when the Judge assessed theappropriate penalty for the present offending. The Judge considered and rejected asubmission by the appellant's counsel that a fine was the appropriate sentence. Hesaid:[4] There needs to be an escalation in the type of penalty to be imposedso that will be community work. I bear in mind, although you have twoprevious [convictions] some years ago, but road safety was clearlycompromised.[17] While the imposition of a fine was a sentence available to the Judge, thesentence of 160 hours community work was also available given the appellant'sprevious convictions. Having regard to the circumstances of the offence being theappellant's third drink-driving offence and having regard to the circumstances of theoffending and the breath alcohol level being nearly twice the legal limit, in my viewthe Judge's decision to impose the more restrictive penalty of community work ratherthan a fine was entirely justified. It was clearly well within range in terms of anavailable sentence, and not manifestly unjust for the Judge to impose a sentence ofcommunity work rather than a fine under these circumstances.[18] The obligation on the appellant to undertake community work on the weekendand the impact of that commitment on his limited family time, is not a matter thatwould render the imposition of a sentence of community work manifestly excessive.A sentence of community work is an appropriate penalty under these circumstances,and offenders commonly have to rearrange their lives and other commitments in orderto undertake community work. While the appellant will have less time to spend withhis family while completing the community work, that consequence does not justifythis court interfering with the sentence imposed by the Judge. The restrictiverequirements of a sentence of community work serve to emphasise the comparativeseriousness of the offending for which it is imposed, over that which would haveattracted a fine. The sentence of community work is appropriate to promote a sense ofresponsibility and deterring the appellant from further offending, and the impact of thesentence on the appellant's weekends and time with his family is simply a consequenceof his own decisions and his offending that he must take personal responsibility for.[19] I reject the submission made for the appellant that the Judge erred by takingthe appellant's careless driving into account when determining the sentence to beimposed. The appellant's careless driving involved him falling asleep at the wheel andveering across the centreline of the road and running into the side of an oncomingtruck. The appellant was driving after drinking alcohol while attending a weddingparty the previous night and after working long hours during the preceding week. Ataround 12.30 pm that Sunday afternoon, his breath alcohol level was nearly twice thelegal limit. His collision with the truck could have been fatal or caused serious injury.He was clearly endangering other road users, and it is only by good fortune that theconsequences of his driving did not result in tragedy. The Judge succinctly andappropriately noted that "road safety was clearly compromised" by the appellant.11[20] The appellant's conduct which comprised the offence of careless driving, wasalso an aggravating factor which was clearly relevant to an assessment of the gravityof his breath alcohol offending, and the Judge was entitled to factor this into hissentence. The Judge convicted and discharged the appellant on the careless drivingcharge and did not double count the careless driving in imposing sentence.11 At [4].Result[21] The appeal is dismissed._____________Paul Davison J