R v Westrupp DC Nelson CRI-2011-042-1569 [2011] NZDC 960 (28 June 2011)

Last Updated: 3 January 2020

IN THE DISTRICT COURT AT NELSON

CRI-2011-042-001569 CRI-2011-042-001570

THE QUEEN

v

JUSTIN YELVIE WESTRUPP

Hearing: 28 June 2011

Appearances: S K O'Donoghue for the Crown M G Dollimore for the Prisoner

Judgment: 28 June 2011

NOTES OF JUDGE S M HARROP ON SENTENCING

[1] You appear for sentence today on four charges, and they are all serious matters, but some particularly. The lead charge is an indictably laid charge of wilfully attempting to pervert the course of justice by providing some false details to the police and by trying to implicate someone else in drink driving that you had committed by planting paperwork relating to that into his pocket while he was unconscious or asleep, this is on 15 April this year.

[2] What preceded that was that you were indefinitely disqualified and at

10.30 pm you drove a vehicle which was not yours on Rui Street in Nelson. You were stopped by the police and you showed signs of recent alcohol consumption and the breath test result confirmed that, it had a level of 716 micrograms of alcohol per litre of breath which is nearly twice the legal limit, so obviously you were a potential killer on the road, with that level of breath alcohol.

R V WESTRUPP DC NEL CRI-2011-042-001569 [28 June 2011]

[3] You were photographed and released and then on going back to your campervan, and having given the police false details, you put the paperwork given to you by the police relating to the excess breath alcohol into the trouser pocket of your unconscious associate and he turned up at the police station the following day, confused about what had happened. So obviously you attempted to shift the blame to him. And there is other information on the file, not apparent from the summary, that you planned to do this. You knew that you were not allowed to drive, you knew you were not allowed to drive drunk, and despite some associates trying to discourage you from driving, and despite considering the situation for a while, you went out and did it and sought to throw the police onto the wrong trail by what you did.

[4] Obviously the Courts regard this very seriously. The implication in serious criminal offending of another person, who is completely innocent, is obviously something that requires a deterrent sentence. There is no dispute about that from you or Mr Dollimore. And, unfortunately, it is the kind of thing that you have done before. Of course, it has not been quite the same, but you have a lengthy history of dishonesty and driving offences.

[5] The Crown in their submissions and the probation report refer to you having seven previous drink driving convictions. I consider it is only six because the first one that is recorded is a Youth Court matter, so I proceed on that basis, but as I have observed today, the difference between six and seven is not very significant for present purposes. Either way, it is very serious.

[6] I should say, the attempting to pervert the course of justice carries a seven year prison term. The driving with excess breath alcohol on a third or subsequent occasion carries two years’ imprisonment, a $6000 fine, and at least a year’s disqualification. The fact you were driving while disqualified, that charge carries three months’ imprisonment. And the breach of release conditions, because you were released from prison, I think, only in February, that carries a year as well.

[7] You have pleaded guilty to all of those things fairly promptly and you have been in custody since you were arrested, and I understand that you have been

re-called to prison to complete your sentence, which I think will run now until August.

[8] I do not propose to go into the submissions in great detail, because there is no great dispute between counsel. It is agreed that a prison sentence is the only realistic possibility today, and it is my obligation to keep that as short as I reasonably can, taking into account everything that is relevant.

[9] I have read the pre-sentence report and I have to say you present a sad case because you are somebody whose life, like so many in our community, has been blighted by alcohol and by your poor judgement when you are under the influence of alcohol. I am not suggesting that you are the perfect citizen when you have not been drinking, of course you are not, but it is clear that if you could get on top of your drinking problem, you have the potential, and you are still only 25, to be a good member of the community.

[10] You have got some, as Mr Dollimore says, you have had some good work ability and attitude, you have got some good personal qualities but they are all being trumped in a big way by your offending and your attitudes. And it does seem that unfortunately you seem to think, and I do not understand how you can think this, that the person who was lying unconscious and who you tried to implicate, that he is somehow responsible for this. That is quite wrong, of course, he is the victim. I do not have a victim impact statement from him but I can well imagine how he feels about what you tried to do. But you do not appear to have much insight into your offending, and that is a real concern because that suggests you are likely to do it again if you get the chance.

[11] The probation officer observes that you have not been able to demonstrate the necessary fortitude to desist in alcohol use, or in fact to refuse to use illicit drugs while on parole, and you have admitted to drug use while on parole, and I think it is right to describe it as a lack of fortitude. You need courage, guts, determination to do something about your alcohol problem. Nobody else can do it for you, but there will be help available.

[12] I am pleased to see you have got family members here, family members are very important in situations like this because they are the best people to help you get on the right path. Obviously they have not been able to do it to date, but they are here today and I have noted your father’s comments which are relayed in the probation report which I think have force, his idea that you need to find a fresh paddock, get away from the people you have been associated with, the lifestyle you have been associated with. And I think, clearly, you need residential treatment for alcohol assistance and although, because of the sentence I am going to impose today, I am not going to direct that as part of the sentence, the Parole Board, I am sure, will understand when they read these notes and also the pre-sentence report that that should be a primary focus of the release conditions that are imposed by them later.

[13] The way that I reach the sentence is that, and I should just refer to the fact that the Crown submits that overall a starting point of two and a half to three years’ imprisonment is appropriate, I think two and a half years is the least restrictive that I can adopt. Although the Crown also submits that the wilfully attempting to pervert the course of justice is different in kind from the other driving matters, and strictly that is right and it should have a cumulative sentence, I think in practice it is better to regard it as part and parcel of this whole incident. It is a seriously aggravating feature of the drink driving and the driving while disqualified and the breach of release conditions background to it, but in my view an overall view can be taken because it is part and parcel of the same offending. So I think an overall starting point of two and a half years is the least restrictive I can properly impose. It could well have been more. And I should say that takes into account all of the charges.

[14] There clearly needs to be an uplift for your previous convictions, the least uplift I think is appropriate is about four months, I could easily have made it six in a case like this, because you have got not only all of those drink driving matters, but you have got a number of dishonesty charges, burglary, theft, giving false details. So I think a four month uplift is the least I can impose. So that takes it up to 34 months’ imprisonment.

[15] On the credit side, there is obviously the mitigating factor that you pleaded guilty. You did not acknowledge your responsibility immediately when spoken to by the police, but you certainly pleaded guilty fairly early in the piece, and you are entitled to credit for that which I would assess at about 20 percent, and I would reduce the sentence by seven months on account of that. So that brings it down to 27 months, two years and three months. That is the sentence that I intend to impose on the lead charge of wilfully attempting to pervert the course of justice.

[16] With a sentence at that level, I do not impose conditions, that is a matter for the Parole Board to assess. I do have to consider whether to impose a minimum period of imprisonment. I see no reason to do that in this case and so I decline to do so.

[17] On the second charge in terms of seriousness, the drink driving matter, there will be a sentence of 12 months’ imprisonment, but I emphasise that is concurrent with the other one because I have taken it into account in reaching the starting point overall, as I had said. On that charge, I am required to disqualify you indefinitely, which is rather academic because you are already indefinitely disqualified, but under s 65(4) Land Transport Act 1998 your recent other drink driving matters puts me in that position. So, pursuant to s 65 Land Transport Act, you are ordered to attend an assessment centre and are disqualified from holding or obtaining a driver's licence until the Director of Land Transport removes that disqualification.

[18] On the disqualified driving charge, I have to impose a discrete disqualification, that is one of six months, and that starts now. And there will be a sentence of one month’s imprisonment concurrently with the other sentence that I have imposed.

[19] Finally, on the breach of release conditions, there will be a concurrent sentence of two months’ imprisonment imposed on that one.

S M Harrop

District Court Judge