Hughes v R [2012] NZCA 388 (27 August 2012)

Last Updated: 6 September 2012

IN THE COURT OF APPEAL OF NEW ZEALAND

CA519/2011 [2012] NZCA 388

BETWEEN ALLAN HERBERT HUGHES Appellant

AND THE QUEEN Respondent

Hearing: 14 August 2012

Court: Arnold, Ellen France and Randerson JJ

Counsel: S G Vidal for Appellant A Markham and P D Marshall for Respondent

Judgment: 27 August 2012 at 11.30 a.m.

JUDGMENT OF THE COURT

1. A cumulative sentence of imprisonment can be imposed in respect of offences of driving while disqualified and driving with an excess breath or blood alcohol level when the offences have been committed in a single act of driving.
2. The circumstances in which such a sentence may be imposed are fact-dependant. The broad approach and some relevant factors are discussed in this judgment.

100. There is no basis to interfere with the sentences imposed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Randerson J)

Introduction

[1] The appellant pleaded guilty in the District Court to one charge of driving with excess breath alcohol and one charge of driving while disqualified on the same occasion. He was convicted and sentenced by Judge Coyle to cumulative terms of 18 months imprisonment on each charge.[1]
[2] Whata J dismissed the appellant’s subsequent appeal against sentence[2] but subsequently granted leave to appeal to this Court on two questions of law:[3]

• (a) Whether a cumulative sentence of imprisonment can be imposed in respect of offences of driving while disqualified and driving with an excess breath or blood alcohol level, when the offences have been committed in a single act of driving; and
• (b) If such cumulative sentences can be imposed, what are the circumstances in which such a sentence could be properly imposed.

Background facts

[3] It is common ground that the appellant is a recidivist offender in relation to charges of the kind at issue. Commencing in 1972, he now has 18 convictions for driving with excess breath/blood alcohol and 24 for driving while disqualified.
[4] On 23 November 2010, he was stopped while driving in Tuatapere. He was observed to be affected by drink and admitted to having consumed 12 beers. An evidential breath test recorded 606 mg per litre of breath (the legal limit being 400 mg). The appellant also admitted being disqualified from driving at the time having been indefinitely disqualified in February 1991. His explanation for driving was that he was going to pick up the daughter of a friend who had suffered a minor injury. It was not suggested there was anything else about the appellant’s manner of driving which was unsafe other than that inherent in the charges he faced.
[5] The charges for the offending were laid indictably since the appellant had more than two relevant previous convictions.[4] Each offence carried a maximum penalty of two years imprisonment or a fine not exceeding $6,000 as well as a mandatory disqualification for a minimum of one year.

The sentence in the District Court

[6] Judge Coyle noted the appellant’s previous convictions. His last conviction for similar offending was in 2003. On that occasion his ultimate sentence imposed on appeal was a cumulative sentence of three years imprisonment.[5] In sentencing on this occasion, the Judge considered the appellant had a high risk of offending; he had attempted to minimise and justify his offending; and he had taken no responsibility for what had occurred. The Judge was somewhat sceptical about the appellant’s willingness to address his alcohol addiction, noting that he had ample opportunity to address this in previous years.
[7] Deterrence and denunciation were regarded by the Judge as important:

[6] I need to impose a sentence which is going to act as a significant deterrent to you. In particular to denounce repeat drink driving and repeat driving while disqualified. The prime focus of my sentencing has to be the interests of the community as you are a menace on the roads and a danger to the public through your repeat drink driving. I need to hold you accountable and responsible for your offending. In short Mr Hughes you are a recidivist drink driver and a recidivist driver when disqualified and the community needs protection from you.

[8] In imposing cumulative rather than concurrent sentences, the Judge was guided by a judgment of Heath J in Police v Tawhara[6] in which reference was made to this Court’s decision in R v McQuillan.[7] Having considered ss 83 and 84 of the Sentencing Act 2002, the Judge decided the appellant’s offending justified a cumulative sentence. He regarded the offences as being different in kind. The charge of driving with excess breath alcohol had a public safety component while the charge of driving while disqualified raised the issue of non-compliance with court orders and the wider question of the administration of justice.
[9] Noting that in Tawhara Heath J had adopted a two year starting point in relation to each of the charges of driving with excess breath alcohol and driving while disqualified on the footing that the offending was near to the worst of its type, Judge Coyle considered it appropriate to adopt the same two year starting point. He said the appellant’s offending “clearly tops the scale as it were with your number of offending”.
[10] From the two year starting point, the Judge applied a discount of 25 per cent for the appellant’s guilty plea to arrive at a sentence of 18 months imprisonment in relation to each of the charges, each term to be served cumulatively to produce an effective sentence of three years. He was not willing to reduce the sentence further for remorse or willingness to attend a programme for alcohol addiction as counsel had suggested. A further period of disqualification from holding or obtaining a driver’s licence was imposed for a period of two years. The Judge pointed out to the appellant that, even after that time, the earlier indefinite disqualification imposed in 1991 would continue to apply, subject to the discretion of the Director of Land Transport to reinstate his licence.

The High Court decision on appeal

[11] Whata J found that the sentence imposed was not manifestly excessive. Nor had the Judge proceeded on an erroneous basis. He regarded the following factors as significant: the multiple prior convictions for both driving with excess alcohol and driving while disqualified which largely offset the length of time that had elapsed since the appellant’s last drink-driving conviction in 2003; the sentence was consistent with the observations made by Heath J in Tawhara; and there was a reasonable analogy to another High Court decision cited to the Court.[8]
[12] In his subsequent decision granting leave to appeal, Whata J observed it was reasonably obvious that the two offences were different in type and consequence but noted that the question had not been squarely addressed by the Court of Appeal in this specific context and considered that the guidance of the Court on the application of cumulative sentences for this specific combination of offending could be helpful given the frequency of combined offending of this type. The Judge noted the issues upon which leave to appeal was sought had not been raised either in the District Court or the High Court.

Submissions

[13] For the appellant, Ms Vidal submitted that this Court’s decision in McQuillan, although supporting cumulative sentences for drink-driving and disqualified driving offences, was distinguishable on the basis that there were two separate occasions each giving rise to two offences. She relied on the decision of this Court in R v Fair[9] to support the submission that it was not appropriate to rely upon recidivism in order to select the maximum penalty as a starting point. To impose cumulative sentences was unfairly to double count that factor, especially where the charges arose from a single incident of driving with no other aggravating features relating to that driving.
[14] Ms Vidal further submitted that the offences of driving while disqualified and drink-driving were more similar than they were different and that the District Court ordinarily imposed concurrent sentences where that combination of offences arose from one incident of driving. To apply the Tawhara approach would be to effect a radical change in how the District Court sentences in cases of this type. Since the charges arise out of the same actus reus, the cumulative sentences ought not to be imposed for drink-driving and disqualified driving offences arising from a single incident.
[15] Alternatively, cumulative sentences should only be imposed in exceptional circumstances and, in doing so, the court should adopt the sentencing methodology adopted by this Court in R v Taueki.[10] There were no aggravating features of the offending other than the previous offending which did not justify a cumulative sentence. Nor was a cumulative sentence justified on the ground that the sentencing Judge considered the maximum available penalty was insufficient.
[16] Counsel submitted that the first question on appeal should be answered in the negative, in which case no answer would be required on the second. The outcome she sought on the appellant’s behalf was that the sentences imposed should be treated concurrently rather than cumulatively.
[17] Mr Marshall presented the submissions on behalf of the Crown. He submitted that there was no jurisdictional barrier to imposing cumulative terms of imprisonment for the combination of offences involved in the present case, even when the offences were committed in a single act of driving. The Judge had correctly concluded that the offences were different in kind. The fundamental requirement was that the overall sentence reflected the totality of the offending. Concurrent sentences were to be preferred over cumulative sentences. Care should be taken to differentiate between a general appeal and an appeal under s 144 of the Summary Proceedings Act 1957, the latter being confined solely to questions of law.

Analysis

[18] The key sections of the Sentencing Act relevant to this appeal are ss 83 to 85. We accept Mr Marshall’s submission that the first question is answered by s 83(1) which provides:

83 Cumulative and concurrent sentences of imprisonment

(1) A determinate sentence of imprisonment may be imposed cumulatively on any other determinate sentence of imprisonment that the court directs, whether then imposed or to which the offender is already subject, including any sentence in respect of which a direction of that kind is or has been given.

[19] There can be no doubt that the District Court Judge had the jurisdiction to impose cumulative sentences for each of the offences with which the appellant was charged. We do not know whether the usual practice of the District Court is to impose concurrent sentences on drink-driving and driving while disqualified charges arising from the same incident. Whether this is so or not does not affect the jurisdiction of the Court to impose cumulative sentences in such circumstances in any particular case.
[20] The jurisdiction to impose cumulative sentences in cases of this kind was confirmed by this Court in McQuillan. This Court observed[11] that the cumulative sentence imposed in the District Court in that case “reflected the failure of previous short terms of imprisonment for drink-driving offences to bring home to the appellant his responsibilities, and the need to deter him from further repetition of his offending in the interests of public safety”. And in Tawhara, Heath J helpfully summarised a series of High Court decisions in which cumulative sentences had been imposed in similar cases.[12]
[21] In relation to the second question, s 84 of the Sentencing Act provides guidance as to the general circumstances in which it will be appropriate to impose cumulative or concurrent sentences:

84. Guidance on use of cumulative and concurrent sentences of imprisonment

(1) Cumulative sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are different in kind, whether or not they are a connected series of offences.

(2) Concurrent sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are of a similar kind and are a connected series of offences.

(3) In determining for the purpose of this section whether 2 or more offences committed by 1 offender are a connected series of offences, the court may consider—

(a) the time at which they occurred; or

(b) the overall nature of the offending; or

(c) any other relationship between the offences that the court considers relevant.

[22] Again, we accept Mr Marshall’s submission that s 84(1) applies in the circumstances of the appellant’s offending. We are satisfied that the two offences involved in this case are different in kind. As the District Court Judge said, the offence of driving with excess breath alcohol is concerned with road safety. While the offence of driving while disqualified also bears upon road safety, it is primarily concerned with the enforcement of court orders. Those who flout the orders of the court challenge the authority of the court and must be dealt with accordingly as part of the administration of justice.[13] In those circumstances, cumulative sentences of imprisonment are generally appropriate in terms of s 84(1) whether or not they relate to a connected series of offences.
[23] It follows that the fact that the two offences faced by the appellant arose from the same driving incident does not preclude the court from imposing cumulative sentences if it is otherwise appropriate to do so.
[24] We note in passing that Ms Vidal’s submission that each offence has the same actus reus is not sustainable. The only common element is the driving of a motor vehicle. The offence of driving with excess breath alcohol also requires the fact of that excess to be established and the offence of driving while disqualified requires the prosecution to prove the disqualification as well as the driving.
[25] While s 84 provides general guidance on the approach to be adopted when considering cumulative or concurrent sentences of imprisonment, the Court must also have regard to the totality of the offending in terms of s 85:

85 Court to consider totality of offending

(1) Subject to this section, if a court is considering imposing sentences of imprisonment for 2 or more offences, the individual sentences must reflect the seriousness of each offence.

(2) If cumulative sentences of imprisonment are imposed, whether individually or in combination with concurrent sentences, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.

(3) If, because of the need to ensure that the total term of cumulative sentences is not disproportionately long, the imposition of cumulative sentences would result in a series of short sentences that individually fail to reflect the seriousness of each offence, then longer concurrent sentences, or a combination of concurrent and cumulative sentences, must be preferred.

(4) If only concurrent sentences are to be imposed,—

(a) the most serious offence must, subject to any maximum penalty provided for that offence, receive the penalty that is appropriate for the totality of the offending; and

(b) each of the lesser offences must receive the penalty appropriate to that offence.

[26] Applied to the present case:

• (a) If concurrent sentences of imprisonment were to be imposed:
  • They must reflect the seriousness of each offence.[14]
  • They could not exceed the maximum available sentence of two years imprisonment in each case.
  • The most serious offence must receive the penalty that is appropriate for the totality of the offending and the lesser offence must receive the penalty appropriate to that offence.[15]
• (b) If cumulative sentences of imprisonment were to be imposed:
  • They must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.[16]
  • Longer concurrent sentences (or a combination of concurrent and cumulative sentences) must be preferred if the need to ensure the total cumulative sentence is not disproportionately long, would result in a series of short sentences that individually fail to reflect the seriousness of each offence.[17]

[27] While s 84 provides general guidance in relation to cumulative and concurrent sentences, it is important to keep in mind the key principles of sentencing this Court discussed in R v Xie[18] in relation to multiple offending. This Court endorsed[19] the continuing application of the following key principles of sentencing stated earlier in R v Williams[20] and in R v Barker:[21]

• (a) With multiple offences the sentence must reflect the totality of the offending.
• (b) In respect of multiple offences, this Court will not insist that the total sentence be arrived at in any particular way.
• (c) The total sentence must represent the overall criminality of the offending and the offender.

[28] In Xie, this Court went on to say[22] that these principles survived the enactment of the Sentencing Act and that ss 84 and 85:

...do not have the effect of trumping the central principle of sentencing for multiple offending, namely that the total sentence must represent the overall criminality of the offending and the offender.

[29] We see these principles having application to sentencing in cases such as the present. We would add that, in arriving at the appropriate sentence, the Court must have regard to all the provisions of the Sentencing Act relevant to the case. We also accept Ms Vidal’s submission that the general approach to sentencing described by this Court in Taueki should be applied, although a busy District Court Judge sentencing in cases of this kind need not carry out this exercise with the degree of rigour called for in more serious cases. On appeal, it is the appropriateness of the final sentence that counts, not how it is made up.
[30] In Fair this Court was dealing with an appeal against a sentence of two years imprisonment imposed concurrently on two charges of driving with excess breath alcohol and driving while disqualified. It was the appellant’s 14th conviction for driving with excess breath alcohol and he had 12 previous convictions for driving while disqualified. The level of alcohol was 967 mg per litre of breath.
[31] The Judge had adopted the maximum available penalty of two years imprisonment as the starting point for the appellant’s sentencing on the footing that the case was within the “most serious of cases” for the purposes of s 18(c) of the Sentencing Act. Addressing a submission that the case was not in that category, the Court said:

[13] Sometimes, even in the absence of other highly aggravating factors, sheer recidivism can call for a sentence at or close to the maximum: McKinlay v Police HC CHCH CRI2006-409-116 7 August 2006. But the number of convictions needs to be set against the span over which they were incurred and when within the span. Convictions remote in time, of themselves, may amount to little more than a statistic. They may derive such significance as they have from the convictions that follow. Generally speaking, the closer convictions are to the offence for sentence the more aggravating they become. If they are close in time they can be highly aggravating; if there has been a significant gap less so. Once again an exercise in judgment is called for.

[32] In the circumstances, this Court considered the case did not require the maximum sentence to be imposed under s 8(c). The gap of seven years since the last offence of a similar kind, and the absence of any driving incident, meant that the offence was better described as “near to the most serious of cases” in terms of s 8(d) of the Sentencing Act. The starting point should not have exceeded 20 months. After considering the appellant’s age and frail health, concurrent sentences of 18 months imprisonment were imposed.
[33] We endorse the general observations made in Fair about the relevance of recidivism as an aggravating factor in cases of this type. We accept that the end sentences imposed in Fair were significantly less than those in the present case but we bear in mind that this is not a general appeal. Rather, it is a second appeal, limited to questions of law under s 144 of the Summary Proceedings Act. In this context, comparisons of the outcome in other cases is a fact-dependant exercise which is not material to the questions of law we are asked to determine.[23]
[34] In addressing those questions, it was open for the Judge to impose cumulative sentences in the context of this case. We are satisfied he did not err in law. He was entitled to impose cumulative sentences in the circumstances. The appellant’s recidivism in relation to similar offending was a factor the Judge was entitled to take into account as an aggravating circumstance calling for a deterrent sentence. It was open for the Judge to conclude that the appellant’s case was within (or at least near to) the most serious of that kind and that the combination of offences was such that concurrent sentences would not adequately reflect the overall culpability of the offender.
[35] The Judge could not have imposed concurrent sentences in excess of two years. If he considered a sentence of more than the maximum sentence available was appropriate, he could only have achieved that outcome by imposing cumulative sentences. Since the two offences were different in kind, it was appropriate for the Judge to impose cumulative sentences in accordance with the general guidelines in s 84(1) of the Sentencing Act.

Result

[36] We answer the two questions posed in this way:

• (a) A cumulative sentence of imprisonment can be imposed in respect of offences of driving while disqualified and driving with an excess breath or blood alcohol level when the offences have been committed in a single act of driving; and
• (b) The circumstances in which such a sentence may be imposed are fact-dependant. The broad approach and some relevant factors are discussed in this judgment.

[37] In this case, the sentencing Judge did not err in law and the sentences imposed were open to him. In those circumstances, there is no basis to interfere with the sentences.

Solicitors:
Crown Law Office, Wellington for Respondent

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[1] Police v Hughes DC Invercargill CRI-2010-025-4089, 18 March 2011.
[2] Hughes v Police HC Invercargill CRI-2011-425-12, 20 May 2011.
[3] Hughes v Police HC Invercargill CRI-2011-425-12, 25 August 2011.
[4] Land Transport Act 1998, s 56(1), s 56(4), s 32(1)(a) and s 32(4).
[5] Hughes v Police HC Invercargill CRI-2003-425-17, 31 October 2003.
[6] Police v Tawhara HC Whangarei CRI-2010-488-44, 8 September 2010.
[7] R v McQuillan CA129/04, 12 August 2004.
[8] Miles v Police HC Hamilton CRI-2005-419-42, 2 May 2006.
[9] R v Fair [2007] NZCA 282.
[10] R v Taueki [2005] 3 NZLR 372 (CA).
[11] McQuillan, above n 7, at [24].

[12] See Tawhara, above n 6, at [22]–[27], which cites Collins v Police HC Hamilton AP100/02, 16 December 2002; Hughes v Police, above n 5; Sykes v Police HC Dunedin CRI-2006-412-4, 15 March 2006; Miles v Police, above n 8; Sands v Police HC Christchurch CRI-2006-409-170, 27 September 2006; and Moon v Police HC Whangarei CRI-2010-488-7, 9 July 2010.
[13] McQuillan, above n 7, at [23].
[14] Sentencing Act 2002, s 85(1).
[15] Sentencing Act, s 85(4).
[16] Sentencing Act, s 85(2).
[17] Sentencing Act, s 85(3).
[18] R v Xie [2007] 2 NZLR 240 (CA).
[19] At [17].
[20] R v Williams CA79/00, CA90/00 and CA91/00, 31 May 2000 (CA).
[21] R v Barker CA57/01, 30 July 29001 (CA).
[22] At [18].

[23] See Tawhara, above n 6, at [22]–[27] for a recent survey of comparative sentences for recidivist drink-driving offenders. In Tawhara itself, cumulative sentences totalling two years and six months imprisonment were upheld on an appeal by the police brought with the Solicitor-General’s consent.