Noble v Police [2012] NZHC 800 (27 April 2012)

Last Updated: 7 May 2012

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2012-443-008 [2012] NZHC 800

BETWEEN PAUL FRANCIS NOBLE Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 27 April 2012

Counsel: K Pascoe for Appellant

S A Law for Respondent

Judgment: 27 April 2012

_{JUDGMENT OF BREWER J}

SOLICITORS

Nicholsons (New Plymouth) for Appellant

_{C & M Legal (New Plymouth) for Respondent}

NOBLE V POLICE HC NWP CRI-2012-443-008 [27 April 2012]

[1] On 13 February 2012 in the District Court at New Plymouth, Judge AC Roberts sentenced the appellant to eight months’ imprisonment.[1] The charge was driving with excess breath alcohol, having been convicted at least twice previously of that offence. In fact, this was the appellant’s fifth conviction for this offence and on this occasion his breath alcohol reading was 851 micrograms of alcohol per litre of breath. The legal limit is 400 micrograms of alcohol per litre of

breath.

[2] Mr Noble appeals his sentence. He contends that a sentence of imprisonment was manifestly excessive. His submission is that the District Court Judge was wrong not to impose a sentence of home detention.

[3] It is common ground that a person appearing for the fifth time for sentencing on a conviction for driving with excess breath alcohol might normally be expected to be sentenced to a term of imprisonment. In this case the key reason for the appeal is that the last time the appellant was convicted for driving with excess breath alcohol was in 2001. At that time he was sentenced to four months’ imprisonment, taking into account that he was on that occasion driving while disqualified. Therefore, there were more than 10 years between that conviction and the present conviction. The convictions prior to the penultimate one were entered in 1988, 1999 and 2000.

[4] Ms Pascoe for the appellant submits that the District Court Judge failed to adequately take into account the gap between this latest conviction and the previous one when considering the seriousness of the offence. Ms Pascoe submits that a sentence of home detention contains clearly recognised elements of denunciation and deterrence. The Court has an obligation to impose the least restrictive sentence appropriate and the District Court Judge failed to do that by dismissing too readily the prospect of home detention. In this case Ms Pascoe submits there are no public safety concerns that cannot be addressed adequately by a sentence of home detention.

[5] Ms Law for the respondent submits that the District Court Judge did take into account all of the factors which he should have done. She places particular emphasis

on the discretionary nature of the decision to impose or withhold a sentence of home detention. In this case she submits the protection of the public is paramount and the appellant’s lack of insight into his offending was a matter properly given weight by the District Court Judge.

[6] In my view, the District Court Judge certainly understood the competing factors which he had to balance in reaching his sentence. He recorded that he was dealing with a mature man who had four previous convictions but who had not offended for a period of 10 years. He was in employment and had a stable family environment. What weighed heavily, in the Judge’s view, in favour of imprisonment were the lack of insight the appellant showed about the effect of alcohol on him and the accompanying lack of remorse. This had manifested itself in a lack of ability or

interest to engage in what the Judge called wholehearted change.[2]

[7] I take it that the District Court Judge was referring to the original pre- sentence report in which it was recorded that the appellant had reported that he had been attending alcohol counselling after his offending. However, when the author of the report contacted the counsellor he was advised that Mr Noble had attended only two sessions in late 2011, had rescheduled his appointments three times subsequently, had missed the latest appointment in 2012 and accordingly had been discharged from the programme. The author of the report concluded:

Mr Noble demonstrates little insight into his offending and limited motivation to complete his counselling. To his credit he admitted his drinking was problematic, however, he appears unremorseful for his offending and showed poor judgment on the night as well as having little concern for his other road users whilst under the influence.

[8] In that report Mr Noble was assessed as posing a medium risk of re- offending. It was the view of the author that if he failed to address his issues seriously and complete alcohol counselling then that risk would increase.

[9] The original pre-sentence report did not have a home detention annex. For the purposes of this appeal hearing a further pre-sentence report (dated 23 April

2012) has been prepared. I note that Mr Noble’s risk of re-offending has now been

assessed as low. However, again there is the rider that the risk will increase unless alcohol counselling is completed. There is no indication in the report that the appellant has made any further effort to receive counselling.

[10] Mr Noble’s address is suitable for home detention. It is noted that two of the residents have numerous convictions but their presence does not seem to be regarded as disqualifying. However, the report does conclude that the appellant appears to be an unsuitable candidate for electronic monitoring due to his repeat offending and lack of insight into it. I have to say that that does not seem to me to necessarily follow.

[11] I also note that the job which the appellant was employed in at the time of his arrest is no longer available to him.

[12] Ms Pascoe has placed emphasis on a decision of Ronald Young J delivered in this Court on 4 July 2011.[3] In that case His Honour had to consider an appeal by a man who had been sentenced to six months’ imprisonment, having been convicted of his ninth drink driving offence. The last had been in May 1999, some 12 years before the offending for which he had been sentenced to six months’ imprisonment. Young J quashed the sentence of imprisonment and substituted a sentence of community work and community detention. Ms Pascoe submits that I should either follow suit or at most impose a sentence of home detention.

[13] There is one crucial distinction between the case that Young J had to consider and the case I have to consider. It is that the appellant in Young J’s case had shown that he could rehabilitate himself, most importantly for society, in his attitude to drink driving. His Honour concluded:[4]

He has since his last offence, 12 years ago, taken a responsible attitude to drink driving. He has addressed his alcohol issues. He has adopted a lifestyle aimed to avoid drink driving. He has a good employment record and otherwise a good record in the community. In those circumstances I think a sentence stopping short of imprisonment was the appropriate sentence.

[14] None of these things can be said about the appellant in this case.

[15] I accept that a sentence of home detention is not a sentence devoid of deterrence and denunciation. In suitable cases it can adequately hold an offender accountable for his actions. But I am not persuaded that the District Court Judge was wrong in imposing a sentence of imprisonment. The appellant, albeit 10 years previously, had already been sentenced to a term of imprisonment on his last conviction for this type of offending. There was nothing before the District Court Judge that showed that he had learned from that experience, nor that he had gained any insight into his relationship with alcohol. His level of intoxication on this occasion was high – more than twice the legal limit. Importantly, he had enrolled in an alcohol counselling course as a result of being apprehended on this occasion and had shown little interest in completing it.

[16] That is not, however, the end of the appeal. In sentencing Mr Noble, the District Court Judge took a starting point of eight months’ imprisonment. There can be no issue with that. However, His Honour then raised the sentence by two months to take account of the appellant’s previous convictions. Given the charge (in shorthand, driving with excess breath alcohol for the fifth time), the uplift must relate to Mr Noble’s other convictions. He has quite a few, starting in 1981 and (relevantly) finishing in 2002. However, in my opinion the nature of those convictions do not justify an uplift in the starting point. For example, the 2002 conviction was for common assault. In my view, the relevance of the other convictions was to deny the appellant a good character which, outside the context of the offending for which he was being sentenced, could have been ground for a reduction.

[17] Further, the District Court Judge reduced the 10 months he had reached at that point to eight months’ imprisonment as a credit for the appellant’s plea of guilty. That amounts to a credit of 20%. In terms of Hessell v R,[5] the maximum credit available for an immediate plea of guilty is 25%. Although a credit of 25% is not an entitlement, I am considering this sentence de novo. The summary of facts said that

_{the appellant was stopped at a routine vehicle checkpoint. He was completely}

compliant and co-operative. Unusually, the author of the summary of facts recorded that the appellant had shown remorse upon his state of impairment being demonstrated. He pleaded guilty at the first available opportunity.

[18] In my view, the starting point of eight months’ imprisonment should not have been uplifted. A full credit of 25% was available. This would have resulted in a final sentence of six months’ imprisonment. Accordingly, I have reached the view that an end sentence of eight months’ imprisonment was manifestly excessive.

[19] I allow the appeal. The sentence of eight months’ imprisonment is quashed and a sentence of six months’ imprisonment is substituted. The sentence of disqualification of 12 months and one day commencing on 13 February 2012 is to

_remain.

Brewer J

---

[1] Police v Noble DC New Plymouth CRI-2011-043-003342, 13 February 2012.

[2] Ibid, at [18].
[3] Priest v Police HC New Plymouth CRI-2011-443-21, 4 July 2011.

[4] Ibid, at [11].

[5] Hessell v R [2011] 1 NZLR 607 (SC).