Police v Crosby [2017] NZDC 14206 (29 June 2017)

Last Updated: 30 November 2017

_{EDITORIAL NOTE: NO SUPRESSION APPLIED.}

IN THE DISTRICT COURT AT CHRISTCHURCH

CRI-2016-009-008118 [2017] NZDC 14206

NEW ZEALAND POLICE

Prosecutor

v

ALAN CROSBY

_Defendant

Hearing:	29 June 2017
Appearances:	A Trinder for the Prosecutor P Johnson for the Defendant
Judgment:	29 June 2017

_{NOTES OF JUDGE D J L SAUNDERS ON SENTENCING}

[1] Mr Alan Crosby, you have pleaded guilty to a charge of driving with excess breath alcohol, causing injury to another road user. This offence occurred on 30 July last year at Rolleston. The circumstances of the offending is set out in the summary of facts and it makes for fairly grim reading. You were driving during the middle of the day on State Highway 1, there was a moderate to heavy traffic flow on the road at the time. Just close to the Berkett’s Road intersection, you turned your vehicle to the right, crossing the centre line into the path of the southbound vehicle.

[2] That vehicle is being driven by a 36 year old woman who was heading south. She was unable to brake or avoid the collision. Her vehicle was effectively written off because she had to be cut from the vehicle and she sustained fractured knee cap,

_{fractured pelvis, deep lacerations that required stitches, as well as dental injuries.}

NEW ZEALAND POLICE v ALAN CROSBY [2017] NZDC 14206 [29 June 2017]

[3] It is fortunate that this was not a fatality given that it was a head-on collision on the open road and that you were the person who crossed the centre line. When you were tested, the level was 848 micrograms, that is well over any legal limit. As you know, the legal limit now is 250 micrograms and you come to Court on an offence if you are over 400. You should know all of that because you have been a regular offender and this now represents a 13th conviction for drink-driving.

[4] The last relevant previous one was in August 2014 when you were convicted in the Invercargill Court and received six months’ imprisonment. That could be seen in light of the authorities that I have been looking at to be a quite lenient sentence for you on that occasion, because that represented your 12th conviction and certainly on the Higher Court’s analysis of matters, a starting point even then should have been up around the 18 months to 22 months’ imprisonment.

[5] In this case, this is more than just a drink-driving, it is in the drink-driving causing injury, which carries with it a maximum penalty of five years’ imprisonment. The Courts have certainly signalled in more recent years a hardening attitude to recidivist drink-drivers who cause harm to innocent road users and that there are sentences now approaching those that can sometimes be employed for manslaughter.

[6] I appreciate the victim in this case has made a recovery of sorts. Financially she is going to be out of pocket because you simply do not have the means to pay reparation.

[7] You were subject to a very full report from Odyssey House through ADAS and while they recommended the He Waka Tapu eight-week residential course, they made the comment that that was not amenable to home detention because of water based activities that are carried out as part of their programme.

[8] With respect to the ADAS assessor, I believe that this matter goes beyond an eight-week residential programme and indeed a drug treatment programme run by Care New Zealand should, in my view, be undertaken by you in the course of the sentence that I must impose today.

[9] So far as starting point is concerned, I have had some discussion with counsel in relation to that. It would seem that certainly, as I have said even on a straight excess breath alcohol conviction, you would have been dealt with with a starting point in the range of 18 months to the maximum of two years, but this goes beyond that type of assessment because there is the injury aspect and the aggravating factors were that you were a recidivist drink-driver, high level and you undertook a dangerous manoeuvre in making this turn. I believe the explanation I read was that you were intending to turn to go behind a hedge so that you could urinate.

[10] The starting point in my view in relation to this offence, given that the maximum penalty is five years, is one of two years, six months. To that, the aggravating feature of the prior history should be factored into it and an uplift of at least six months could be seen as appropriate in relation to the prior history.

[11] So far as mitigating circumstances are concerned, you have pleaded guilty and I accept from what Mr Johnson has put forward today that you have, yourself, suffered serious injuries as a result of a subsequent crash in which your partner was the driver and again, which alcohol was involved.

[12] The credit that you get for the guilty plea which was not at the first available instance will be in the range of about 20 percent. I give further credit for the fact that you are now suffering some serious injuries and which are going to need some ongoing care. Corrections need to be made aware of that and they will ensure that you continue to get the treatment while you are in custody.

[13] The view that I have reached is that from the three years that I reached as a starting point, credit for the guilty plea and for the injuries brings the sentence back into the range of two years, four months. You will need to approach the Parole Board when you have served one-third of the sentence. Hopefully you will undertake a drug and alcohol programme while you are in custody and if you wish to back that with a residential programme on release on parole, then that will be for you to convince the Board that you are still motivated to address the issues around your alcohol.

[14] This is a case where more than the minimum mandatory disqualification of

12 months is appropriate. Given the history of offending, I consider that a disqualification period of two years is appropriate in relation to this and accordingly, you are disqualified from driving for two years from today’s date. The end sentence then is two years, four months. At the completion of any disqualification period, you will be subject to s 65B which will be a zero alcohol licence.

D J L Saunders

District Court Judge