MARTIN v NZ POLICE [2016] NZHC 989

MARTIN v NZ POLICE [2016] NZHC 989 [16 May 2016]IN THE HIGH COURT OF NEW ZEALANDNEW PLYMOUTH REGISTRYCRI 2016-443-11[2016] NZHC 989BETWEEN WAYNE MARTINAppellantAND NEW ZEALAND POLICERespondentHearing: 11 May 2016Counsel: M S Boyd for AppellantJ E Bourke for RespondentJudgment: 16 May 2016JUDGMENT OF BROWN JBackground[1] At 2.30 am on Saturday, 24 October 2015 the appellant was apprehended by Police while driving on Mangorei Road, New Plymouth with a blood alcohol level of 148 milligrams of alcohol per 100 millilitres of blood.[2] Less than two months later on 10 December 2015 the defendant drove a motor vehicle on North Street, Waitara with a blood alcohol reading of 151 milligrams of alcohol per 100 millilitres of blood.[3] The appellant had six previous convictions relating to alcohol impaired or drug impaired driving. Consequently on both instances he was charged with an offence of driving with excess blood alcohol on third or subsequent occasion under s 56(2) and (4) of the Land Transport Act 1998. The maximum penalty for a contravention of that section is imprisonment for a term not exceeding two years or a fine not exceeding $6,000 and disqualification from holding or obtaining a driver licence for more than one year.Sentencing[4] On 9 March 2016 in the District Court at New Plymouth, Judge C D Sygrove sentenced the appellant to six months home detention on each charge concurrently.1The appellant was also disqualified from holding or obtaining a driver licence for 12 months and one day and ordered to pay medical expenses and an analyst fee.[5] The route to the sentence of six months home detention is apparent from the following passage from the sentencing notes of Judge Sygrove:[6] You seem to think that home detention is not justified but you do not expect to get off lightly. As the police have pointed out, you have six previous convictions for drink-driving and when I consider theClotworthy v Police (2003) 20 CRNZ 439 (HC) factors, you have two drink-driving matters before the Court, the length of time that you had a previous conviction is substantial and I take that into account.[7] The fact that you have two drink-driving convictions within a short space of time is an aggravating factor. At the time you were not forbidden from driving so I do not take into account, but those factors when I look at the case of Samson v Police [2015] NZHC 748 17 April 2015, Whata J indicate to me that a starting point of 16 months' imprisonment is appropriate.[8] I give you fill discount according to R v Hessell [2010] 2 NZLR 298; (2009) 24 CRNZ 612 (CA) which results in a penalty of 12 months'imprisonment and I am prepared to give you home detention. I note in the case of Tangipo v Police [2015] NZDC 11384, a case involving my brother Judge Roberts, that he refused to impose a sentence of anything less than imprisonment when there had been a 17 year gap between the previous offending and on appeal Clifford J reduced the sentence to one of something substantially less than imprisonment and in fact on that occasion he sentenced Mr Tangipo to community work and supervision. So there certainly should be a reduction in penalty for historical drink-driving offences.Approach on appeal[6] The ground of appeal in the Notice of Appeal dated 9 March 2016 simply states "Manifestly excessive sentence".1 Police v Martin [2016] NZDC 4751.[7] With reference to the question, how does the challenge meet the criteria for reversing the exercise of discretion, the Notice states "Failed to weigh factors appropriately – plainly wrong".[8] However, the written submissions filed on behalf of the appellant were more specific, contending that the Judge erred in three respects:(a) placing undue weight on the recommendation in the pre-sentence report, which was said to be unduly negative;(b) failing to correctly analyse the gravity of the offending pursuant toClotworthy v Police;2 and(c) failing to impose the least restrictive outcome appropriate in accordance with the purposes of sentencing.[9] On these grounds the appellant sought that the sentence of home detention be quashed and replaced with sentences of community work and supervision.[10] An appeal against sentence is brought under s 244 of the Criminal Procedure Act 2011. Section 250(2) of that Act provides that the High Court must allow the appeal if it is satisfied that:(a) for any reason there is an error in the sentence imposed on conviction; and(b) a different sentence should be imposed.[11] A different sentence should be imposed when the appellate Judge believes a different type of sentence should be imposed or the length of sentence should be altered but not in a way that amounts to a minor adjustment or "tinkering". The Court on appeal must concern itself with whether the end sentence imposed is within2 Clotworthy v Police (2003) 20 CRNZ 439 (HC).range, as opposed to focusing on the process by which the sentence was reached. In any other case the Court must dismiss the appeal.Pre-sentence report[12] Although there is no evidence before the Court as to the fact, it appears that at the time the pre-sentence report was ordered, by a Judge who was not the sentencing Judge, the Judge passed a remark to the effect that imprisonment was very likely. That comment is said to have been reflected in the front panel of the Department of Corrections report where, in relation to the heading Judicial Indication Comment, the following entry appears:Upper Tierbut no indication given. Prison almost inevitable.[13] The submission was made that all the indicators in the report were that a low to medium level outcome, including a rehabilitative component, was appropriate toaddress the appellant's risk factors. However the report only considered "upper tier"sentences with the recommendation being for home detention and community work. Consequently it was submitted first that the report recommendation was unduly influenced by the initial judicial comment and secondly that that recommendation had in turn negatively influenced the sentencing Judge away from lower level outcomes.[14] In response it was contended that the report writer had formed his own opinion and that a different Judge had undertaken the sentencing exercise and reached an independent determination based on the facts of the offending.[15] In my view it is apparent from reading the report in its entirety that the report writer did form his own independent opinion as to an appropriate sentencing recommendation. Indeed the fifth paragraph records that the full range of sentencing options had been canvassed but due to the similar nature of previous offending only upper tier sentencing was considered. It is fair to say, as Judge Sygrove noted at para [4], that the report was a sympathetic one. In the event the sentence was for home detention alone.[16] I can discern no indication that either Judge Sygrove or the report writer was influenced by any comment made by the Judge who directed the pre-sentence report. Accordingly this ground of appeal is rejected.Gravity of offending[17] Ms Boyd analysed the gravity of the appellant's offending against the seriesof factors in Clotworthy as follows:3a. Breath or blood alcohol level: Accepted as relatively high, at 148 and 151 mgs alcohol per 100 mls of blood respectively.b. Length of time elapsed: 21 years.c. Close succession: 2 in the space of 2 months.d. Manner of driving: Innocuous.e. Disqualified or forbidden: Not applicable.f. Plea: Early guilty plea.g. Sentences (in particular whether they included imprisonment) imposed for previous EBA convictions and the response (or lack of it): Most recently periodic detention. Long period without similar offending. Other sentences of imprisonment, community service and fine.h. Other convictions: All 14 years and older.i. Remorse and/or willingness to address alcohol and/or personal problems: Mr Martin's letter shows he has sought assistance for hisrehabilitation.j. Contributing personal or family circumstances: Mr Martin'srelationship of 20 years broke up around 12 months ago, which lead [sic] to him starting to drink again.[18] In her submission there were only two aggravating factors present, the blood alcohol levels and the fact of the two episodes in close succession (one while on bail). These had to be balanced against the very significant period of time since theappellant's previous offending which allowed for the conclusion that he had beendeterred and even rehabilitated prior to the current offending.3 Clotworthy v Police, above n 2, at [20].[19] Ms Boyd noted that the graph in Clotworthy indicated that sentencing for offenders with six previous drink drive convictions clustered around five to eight months' imprisonment, with the highest sentence being 15 months. She submittedthat the appellant's case was not at the upper level indicated in Clotworthy and was significantly less serious than Samson v Police noted by Judge Sygrove and relied on by the Crown, where multiple aggravating factors were present.4[20] Mr Bourke drew attention to the recent review in Samson of the authorities on the issue which led Whata J to comment:5[15] Unsurprisingly, sentencing for this type of offending is not amenable to tariff-like categorisation. But the resolution of EBA (third and subsequent) appeals has become encumbered by numerous and diverse responses to what, at first gloss, appear to be similar fact offending. In order to make some sense of the jurisprudence, and with the assistance of counsel in this appeal and in Bechan v Police, I have reviewed a number of authorities for the purpose of identifying where the current offending might sit in the spectrum of cases that have come before this Court. As a result, I think some broad generalisations about starting points are supportable, namely:(a) No seriously or only moderately aggravating factors, 9-12 months;(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.[21] The Judge noted that seriously aggravating factors that appeared to resonate strongly in the sentencing process included a high level of intoxication, dangerous driving, very close proximity in previous EBA offending and/or a prolonged and continuous history of driving-related offending.4 Samson v Police [2015] NZHC 748.5 Footnotes omitted.[22] In that case, where the offending was marked by multiple and seriously aggravating factors, Whata J remarked that at first blush a starting point of 20 months (which was the approach in the District Court) was supported by authority. However he went on:[21] But on closer scrutiny, the cases applying a 20 month starting point have been marked by very high levels of culpability across multiple factors, including a very high level of intoxication, indefinite disqualification, a very lengthy history of prior offending, and/or prior sentence of imprisonment. For my part, the present offending, while serious, is not in this category of offending.[22] But I am equally satisfied that the offending does not fall at the minor end of EBA offending that might attract a starting point of less than 12 months as Ms Penrose suggested in oral argument. Those cases are equally marked by less aggravating features, for example an extended period between offending. I accept that there is authority to suggest that arguably comparable offending has attracted a start point of 12 months. It seems to me, therefore, that an indicative starting point between 12-18 months could be supported by reference to authorities.[23] Mr Bourke also placed reliance on Toetoe v Police and Te Papa v Police inboth of which starting points of 24 months' imprisonment were quashed and terms of16 months' imprisonment substituted.6 Those cases involved similar circumstances: a moderately high blood alcohol reading, unexceptional driving, two drink driving offences within a short period of time, similar levels of previous convictions, similar sentences for previous convictions and early guilty pleas. The appellant's case wassaid to be similar to those two decisions which supported the starting point of 16 months' imprisonment.[24] Ms Boyd countered that all three cases should be distinguished because inToetoe and Te Papa there was an intervening conviction breaking the duration of non-offending while in Samson multiple aggravating factors were present including a reading almost double the limit, indefinite disqualification and an almost unbroken chain of driving-related offending over nine years.6 Toetoe v Police [2013] NZHC 2686; Te Papa v Police [2013] NZHC 3218.[25] As Whata J remarked, care must be taken when relying on precedent in this context other than as an initial indicator as to the suitability of sentence and, as with any sentencing, there will invariably be sentences that do not fit into a particular box.[26] Concerning the three aggravating circumstances advanced by Mr Bourke, I recognise Ms Boyd's point that item (g) in the Clotworthy list, namely previous sentences and in particular whether they included imprisonment, was identified by Whata J as being relevant to uplift for aggravating personal circumstances, not for assessment of starting point. However I accept Mr Bourke's submission that the factof the dual offences is a serious aggravating factor and that the blood alcohol levels were also aggravating factors, although not as serious.[27] Consequently I consider that the present appeal falls into Samson category (b). Like Whata J,7 I am unable to accept that the appellant's recent offending falls at the minor end of EBA offending that might attract a starting point of less than 12 months.[28] That said, I incline to the view that the appropriate starting point for the appellant would not be in the upper range of Samson category (b). I consider that, even taking into account that this is the second time the appellant has faced multiple EBA charges, 14 months' imprisonment would have been the more apt starting point. However applying to that starting point a 25 per cent discount for early pleas, the figure which would result for a term of home detention would be 5.25 months.[29] Hence the difference between that figure and the sentence imposed would only be a fraction of a month, which in my view would plainly amount to tinkering with the sentence imposed. Accordingly I find that the end sentence was not manifestly excessive.87 Samson v Police at [22] above.8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [35].Least restrictive outcome[30] Ms Boyd submitted that Judge Sygrove failed to impose the least restrictive outcome appropriate in accordance with the sentencing hierarchy pursuant to s 8(g) of the Sentencing Act 2002. What she described as the unique circumstances of theappellant's case, in particular the 21 year gap in drink drive offending and the personal circumstances leading to the re-offending, justified a starting point short of imprisonment. Drawing attention to observations of the Court of Appeal in R v Rawiri that a sentence of community work has a significant punitive aspect, she contended that a sentence of community work coupled with supervision would effectively meet the purposes of sentencing of denunciation and deterrence and rehabilitation.9[31] I recognise that a substantial period of time has elapsed since the appellant'sprior EBA offending. That is a matter I took into account in my assessment of the starting point, as did Judge Sygrove at [6].10 However in light of the aggravating factors, the submission that a sentence of community work would have been an appropriate level of sentence is unduly optimistic. In my view a moderate period of home detention was the least restrictive outcome in the circumstances of this case.Disposition[32] For the reasons explained above, the appeal is dismissed.______________________________Brown J9 R v Rawiri [2011] NZCA 244 at [18].10 At [5] above.