Police v Maurirere [2016] NZDC 25385 (23 November 2016)

Last Updated: 15 March 2017

_{EDITORIAL NOTE: NO SUPPRESSION APPLIED.}

IN THE DISTRICT COURT AT TAUPO

CRI-2016-069-001063 [2016] NZDC 25385

NEW ZEALAND POLICE

Prosecutor

v

GORDON HAMILTON MAURIRERE

_Defendant

Hearing:	23 November 2016
Appearances:	Sergeant M McGahey for the Prosecutor S Clarkson for the Defendant
Judgment:	23 November 2016

_{NOTES OF JUDGE M A MacKENZIE ON SENTENCING}

[1] Mr Gordon Maurirere, you appear for sentence today in relation to two charges; driving with excess breath alcohol and driving whilst suspended. It is important that I set out the facts in full.

[2] On 17 June 2016, you were suspended from driving any motor vehicle until

16 September 2016 for excess demerit points. At about 4.09 pm on Saturday

10 September 2016, you drove a vehicle south on State Highway 1, Taupo. The vehicle was the subject of a driving complaint and when located, you admitted to having consumed alcohol recently. Breath test procedures were adopted and an evidential breath test returned a reading of 971 micrograms of alcohol per litre of breath. Your explanation to police was that you had drunk six bottles of beer, some vodka and some bourbon, but had had some cheese and crackers to eat so you could

_{drive home.}

NEW ZEALAND POLICE v GORDON HAMILTON MAURIRERE [2016] NZDC 25385 [23 November 2016]

[3] This is a matter where Mr Clarkson, your counsel, confirms that between a period of 1991 and 2013, you have 10 convictions for driving with excess breath alcohol. You also have 15 previous convictions for driving whilst disqualified spanning a period between 1995 and 2008.

[4] It is true that your offending has slowed down over time, but no sentence seems to make any difference to you. You continue to drive whilst your licence is either suspended or disqualified and you continue to get behind the wheel after consuming alcohol.

[5] The principles and purposes of sentencing are easy to identify in this case. They are deterrence and denunciation, both specific to you and generally. That is important because the submission made by Mr Clarkson that whilst you accept that others might see you are high risk, but you do not think that is the case, is of extreme concern. On any objective level, you are an extremely high risk person in the community. I am focusing on your driving behaviour here. Probation say in the pre-sentence report that there are other convictions which inform their assessment of your risk, but it is of serious concern to me that you do not consider that you are at high risk in the community. When you get behind the wheel, when you know that your licence is suspended and you have had a skinful of alcohol and think that it is a good decision to drive, then you are operating in some sort of alternate reality. This was not a reading which was a minor amount over the trigger level for a criminal prosecution, which is 400 micrograms of alcohol per litre of breath. This is well over twice the limit at 971 micrograms of alcohol per litre of breath. It is

29 micrograms short of being two and a half times the limit. That brings into play other sentencing needs here. The need to hold you accountable. You most definitely have rehabilitative needs, but there is one other significant principle of sentencing and that is the need to protect the public.

[6] This was a situation where the public were at very high risk from you, given the particular constellation of factors surrounding this and that leads me to identify the aggravating factors of this offending. There is the very high reading, as I have already identified. There was driver fault on your part. You came to the attention of the police because you were the subject of a driving complaint. You were driving

whilst your licence was suspended and your previous history for both drink-driving and driving whilst disqualified. You are a recidivist repeat offender for both sets of offending.

[7] There is no tariff case as such for drink-driving of a repeat nature. Sergeant McGahey has correctly identified the well known case of Clotworthy v Police.1 There is another case however which is Samson v Police2 where Justice Whata last year attempted to bring some structure to sentencing for repeat drink-driving offenders and referred to Clotworthy, but indicated that some broad generalisations about starting points are supportable. Samson v Police has

been adopted in other High Court cases as an appropriate approach to a starting point being articulated by a Judge. It is not a tariff case and of course every case turns on its own facts, but it is helpful in terms of a starting point.

[8] Justice Whata set out various categories, in fact four categories. I see you as falling in the second category of one or more seriously aggravating factor where there is, according to Justice Whata, a starting point for the excess breath alcohol offending of 12 to 18 months. I do not need to detail the other three categories, because in my view that is where this fits. In fact, for the excess breath alcohol offending, given the five aggravating factors I have identified, in my view, I am going to start at the top end of that band of 18 months imprisonment, given the particular set of factors that I have referred to.

[9] I am going to uplift that starting point for the driving whilst suspended. There is clear authority to adopt a cumulative sentencing approach and indeed that is what happened in Samson and that is because driving whilst disqualified and driving with excess breath alcohol are different offences. Driving whilst disqualified is an offence which offends against the administration of justice. You were told not to drive and you continue to do so repeatedly.

[10] For that number of previous convictions for driving whilst disqualified, the starting point would be at least 12 months imprisonment, possibly more. I am going

1 _{Clotworthy v Police (2003) 20 CRNZ 439}

2 Samson v Police [2015] NZHC 748

to uplift that 18 months start point by six months to a total adjusted starting point of two years imprisonment and in doing so, I have also cross-checked that with other cases, including a case called Himiona v Police3, which is a useful comparator and is referred to in Samson v Police. I have also cross-checked that with the starting point in Samson v Police where that particular defendant had four previous excess breath alcohol convictions and six previous driving whilst disqualified convictions. The cumulative starting point by Justice Whata in the High Court in terms of Samson v Police was said to be 20 months imprisonment for that offending and the

other case I referred to, Himiona v Police, there was an end sentence of 24 months imprisonment cumulative, including nine months for a thirteenth driving whilst disqualified conviction was imposed. Mr Himiona had a very high breath alcohol level. It was his fifth EBA conviction and he had convictions spanning the period

1990 to 2008. Therefore, considering the aggravating factors I have identified, the bands set out in Samson v Police and where I see that fitting and cross-checking that itself for Samson v Police and Himiona v Police, I stand by the start point of

24 months imprisonment.

[11] Two specific credits for mitigating factors are, firstly, the prospects of rehabilitation. I consider that I am being generous in giving you a discount for that. You clearly have significant rehabilitative needs as per the counselling report and the comments made by the probation officer. I say that I consider I am being generous because in a sense, the prospects of rehabilitation run counter to the submission made that you do not consider that you are at high risk, but nevertheless, I will continue with that approach. That is two months and I am going to give you a credit for your guilty plea which is five and a half months which would lead an end sentence of 16 months and two weeks imprisonment. That comes within the home detention range and Mr Clarkson urges me earnestly to sentence you to home detention.

[12] On the positive side of the ledger, you have a suitable address. You have accommodation. You have employment. You had gone and started some counselling and there is a reference and you have the support of your partner who is

_{in Court.}

3 Himiona v Police [2012] NZHC 1756

[13] In one sense your criminal history does not speak against a term of home detention, because Judges look to see how a defendant has complied with previous sentences. I put to one side the breach of release conditions, because that in and of itself would not mean that I would step back from a term of home detention, all other things being equal. The issue in terms of your conviction history which troubles me the most and gives me the best indicator of your ability and willingness to comply with Court orders is your repeated convictions for driving whilst disqualified. Driving whilst disqualified is a Court order. That speaks volumes about your ability to comply with Court orders. You simply have an utter inability to comply with Court orders. That factor, coupled with the fact that your licence was suspended, yet you elected to play Russian roulette and drive, says to me that you do not comply with any sort of order. Even if I considered that you were a person that could comply, it is you that is not suitable for a sentence of home detention. The community is not safe from you. It is only going to be a matter of time before you get behind the wheel and take yourself out or take someone else out. Repeatedly, you were sentenced for drink-driving. Repeatedly, you do not learn the lesson because you come back before the Court and public safety is above all else the most significant consideration here. I cannot have any trust and confidence that if I sentence you to home detention, that you would abide by that sentence and I am not prepared to risk innocent members of the public. A full-time custodial sentence is the only sentence that I consider best meets the sentencing needs here of a significant need to protect the public, to hold you accountable and to deter and denounce this behaviour where you continue to drink and drive and drive whilst your licence is either suspended or disqualified. You do pose a significant risk and whilst you might be at a point where you are prepared to grow up and contemplate changing, I do consider you are in the grip of a significant issue with alcohol. It is either that, or you just do not care and you are prepared to get behind the wheel.

[14] I do not know if it is about the drinking or the thinking, but in any case, the only appropriate outcome, for the reasons I have set out, is a full-time custodial sentence and accordingly, I decline to impose a sentence of home detention for the reasons that I have given.

[15] It is 16 months and two weeks imprisonment as an end sentence. The special conditions are as per the pre-sentence report and they are:

(a) To attend an assessment for a drug and alcohol programme; (b) To attend and complete a brief drink-driving intervention;

(c) To attend an assessment for a departmental Short Motivational programme;

(d) Not to possess, consume or use any alcohol or drugs not prescribed to you;

(e) To reside at an address approved by a probation officer and not move to any new residential address without the prior written approval of a probation officer.

[16] Those will continue six months post sentence end date.

[17] I indefinitely disqualify you pursuant to s 65 on the charge of driving with excess breath alcohol.

[18] I make an order pursuant to s 65B also –

MR CLARKSON:

Sorry Ma’am s 65 does not apply, only s 65B. It will be a discrete period. [19] All right, discrete, thank you for telling me that, Mr Clarkson.

[20] I will remit your fines, Mr Maurirere. No additional term of imprisonment. That is your fines remitted. Wrap that up and I am going to disqualify you from holding or obtaining a driver’s licence for a period of two years and I make an order pursuant to s 65B Land Transport Act 1998 which is for a zero alcohol licence which is to be in place for three years once your licence is restored.

[21] So fines remitted, 16 months, two weeks imprisonment, two years disqualification, zero alcohol licence order.

[22] In relation to the driving whilst disqualified, there will be a concurrent disqualification of 15 months.

M A MacKenzie

District Court Judge