The Queen v Fraser [2006] NZCA 122 (12 June 2006)

Last Updated: 22 June 2006

IN THE COURT OF APPEAL OF NEW ZEALAND

CA74/06

THE QUEEN



v



BRENT FRASER

Hearing: 30 May 2005

Court: O'Regan, John Hansen and Gendall JJ

Counsel: W M Johnson for Appellant
K J Beaton for Crown

Judgment: 12 June 2006

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS

(Given by O’Regan J)

Introduction

[1]	The appellant, Mr Brent Fraser, pleaded guilty to charges of driving with excess blood alcohol and driving while disqualified. It was his twelfth conviction for drink driving and his eighteenth for driving while disqualified. The appellant also pleaded guilty to supplying false details during the course of police procedures.
[2]	The appellant was sentenced to 18 months’ imprisonment and was denied leave to apply for home detention. He appeals that sentence to this Court.

Facts

[3]	On 24 August 2004 the appellant appeared in the District Court at Lower Hutt and was convicted on two charges of driving with excess breath alcohol, two charges of driving while disqualified, dangerous driving, failing to stop and careless use of a motor vehicle. On that occasion, Judge Davidson imposed a sentence of 240 hours’ community work.
[4]	On 17 December 2004, the appellant was pulled over by police at about 1.00 am. The appellant’s vehicle came to the attention of police after it swerved within its lane and struck the raised median barrier separating the two streams of traffic on the road. The appellant was spoken to by police. It was apparent that he had been drinking. The appellant gave a false name to the police. He later said the details he had given were those of his best friend.
[5]	Breath and blood testing procedures were carried out. The subsequent blood test revealed the appellant’s blood-alcohol level was two and a half times the legal limit.

Sentence

[6]	The charges were laid indictably. The appellant pleaded guilty to all charges on the morning of the trial.
[7]	In sentencing the appellant, Judge Mackintosh noted the appellant had had a lifelong struggle with alcohol. She noted the appellant’s particular propensity towards driving-related offending – he had previous convictions for dangerous driving and reckless driving, not to mention the previous 17 convictions for driving while disqualified and the previous 11 convictions for driving with excess blood or breath alcohol.
[8]	The Judge also noted that the appellant’s offending was ‘committed hard on the heels’ of the sentence imposed by Judge Davidson in August 2004. Inferring from this that the community-based sentence had no deterrent effect on the appellant’s drinking and driving, Judge Mackintosh concluded that she had to impose a custodial sentence. She referred to the appellant as a ‘recidivist offender’.
[9]	The Judge identified the aggravating features of the appellant’s offending as being:

(a) The fact that the offence was committed while the appellant was subject to the community work-based sentence imposed by Judge Davidson;

(b) The appellant’s previous convictions;

(c) The appellant’s significantly high blood-alcohol level;

(d) The fact that the appellant’s car swerved and hit the median in the middle of the road, which could have easily caused an accident; and

(e) The appellant’s provision of false details to police.

[10]	Judge Mackintosh said the appellant was entitled to credit for his guilty plea, despite it being entered on the morning of the trial. The Judge also noted the position of the appellant’s partner and young child. She acknowledged the strain that the imprisonment of the appellant would put on his family, who relied on him as a provider.
[11]	The Judge determined that the appellant should be sentenced concurrently on all three charges. If he were sentenced cumulatively, the Judge said that would lead to excessive imprisonment. The Judge considered a starting point of 20 months’ imprisonment was appropriate. She said the appellant was entitled to a two month discount in light of his guilty plea and familial circumstances. That left a sentence of 18 months’ imprisonment.
[12]	Judge Mackintosh then considered the appellant’s application for leave to apply for home detention. She said:

[19] The issue of leave to apply for home detention arises. In the circumstances, I have considered that issue. You have a history of breaching Court orders, breaching of bail. Those are the kinds of issues that the parole board would take into account in deciding whether or not to grant leave to apply for home detention. In my view, home detention is not appropriate and your application for home detention will be declined.

[13]	The Judge disqualified the appellant from driving for 12 months but noted this was somewhat unnecessary given the appellant was the subject of an indefinite disqualification.

Submissions

[14]	Mr Johnson, for the appellant, did not dispute the length of the term of imprisonment imposed by Judge Mackintosh. Mr Johnson took issue only with the Judge’s decision not to grant leave to apply for home detention.
[15]	Mr Johnson submitted the Judge did not give adequate weight to the appellant’s personal circumstances and the financial and emotional hardship the appellant’s family must endure by his being imprisoned. Mr Johnson referred to a letter presented to the District Court by the appellant’s partner outlining childcare difficulties and financial pressures. Mr Johnson said these would be alleviated if the appellant were granted home detention.
[16]	Mr Johnson also suggested that, while the appellant is a repeat offender, his offending has been "less frequent" in the years 1995-2002.
[17]	In his oral submissions, Mr Johnson argued that the Judge had determined that home detention was not appropriate. She had therefore addressed the wrong issue: she ought to have confined her consideration to the appropriateness of leave being given to the appellant to apply to the Parole Board for home detention.
[18]	Ms Beaton, for the Crown, submitted that, although the Judge did not specifically refer to the applicable considerations under s 97(3)(a) and (b) of the Sentencing Act 2002, those factors were effectively considered in the Judge’s sentencing remarks. Ms Beaton further pointed out that the Sentencing Act did not require the factors listed in s 97(3)(a) and (b) to be given equal weight. The Judge did take into account the appellant’s personal and familial circumstances when reaching her decision on sentence, but concluded that deterrence, denunciation and community protection were the paramount factors. In reaching this conclusion, the Judge did not err in principle.

Discussion

[19]	We do not think there is any doubt that Judge Mackintosh was well aware that she was determining only whether leave should be granted to apply for home detention. Her comments at [19] of her sentencing notes (reproduced at [12] above) make this clear, notwithstanding the apparent slip of the tongue in the last sentence.
[20]	It is also clear that Judge Mackintosh took into account the difficult family circumstances of the appellant. However, she gave greater significance to the nature and seriousness of the offence, particularly given the recidivist nature of the appellant’s offending. She was entitled, in the exercise of her discretion, to take into account the prior history of the appellant, particularly his failure to comply with Court orders. She was also entitled to conclude from the appellant’s offending while subject to a merciful community-based sentence for his most recent prior offending that a period in prison was necessary to deter him from offending further.
[21]	We are satisfied that no error in approach has been identified in the Judge’s consideration of the discretion to grant leave, and that her decision which was one which was properly open to her.

Result

[22]	The appeal is devoid of merit and we dismiss it.

Solicitors:
Crown Law Office, Wellington