WHITEMAN V POLICE HC DUN CRI 2008-412-000051 [2009] NZHC 104 (11 February 2009)

IN THE HIGH COURT OF NEW ZEALAND
DUNEDIN REGISTRY
                                                                CRI 2008-412-000051



                                ROSS WHITEMAN
                                    Appellant



                              
            v



                                      POLICE
                                     Respondent



Hearing:       11
February 2009

Appearances: Appellant (In Person)
             R D Smith for Respondent

Judgment:      11 February 2009


     
                    JUDGMENT OF FOGARTY J



[1]    Mr Whiteman you have appealed against a sentence on two charges of
driving with
excess breath alcohol. On one charge you were sentenced to six months
imprisonment and on the second charge you were sentenced to
eight months. The
sentence was cumulative so you were sentenced to a total of 14 months
imprisonment. The second charge occurred
while you were on bail for the first drink
driving charge. The Judge regarded that as an aggravating feature because it showed
that
while you were before the Court on the charge and subject to bail you could not
control your drinking and could not refrain from
driving and the third aggravating
feature the Judge found was that you had previous convictions for drinking and
driving in 1992,
2001, 2002 and 2004. These were your fifth and sixth drink driving


WHITEMAN V POLICE HC DUN CRI 2008-412-000051 11 February 2009

charges. He also said that you had some 117 previous convictions. You have
pointed out that that maybe an error in the arithmetic.
  But on any view of it you
have a large number of convictions.


[2]    In your submissions, which if I may say so, are very clearly
expressed and
presented today, one of your arguments is that the second offending occurred partly
because you were not able to sell
your car, that you had prior to this dispensed with
your car and were using buses which explains why there was a gap in your offending
and that had you been able to sell your car you would not have been able to offend a
second time. I think the Judge did understand
that you did not contemptuously set
out to offend again but that you have a chronic alcohol problem.


[3]    Another point you have
made, and I suspect is really at the heart of your
appeal, is that you consider the Probation report was out of date in respect of
your
mental health history. You do have, and have had for some time, mental health
conditions for which you take medication and as
a result of which you have been
living on an invalid's benefit and I think that to a degree explains your substantial
history of
offending.


[4]    I am persuaded by your submissions that the Probation report was not up-to-
date. To be up-to-date it would need
an up-to-date psychiatric assessment and the
fact of the matter is that that was not done. But the more significant issue in this
appeal is whether or not it would have made any difference to the sentence the Judge
imposed. I do not think it would have made any
difference to the sentence imposed
and the next question I ask of myself is: would it make any difference to me, an
updated history?
The impression I have gained is that your medication has changed
but that the underlying mental health history which underpins this
offending is more
or less much the same.


[5]    There is a case for arguing that people with health problems, such as you
have,
should not be treated by the Courts when the Court is faced with multiple
offending in the same manner in which people without mental
health problems
would be treated because of the real difficulty that people with mental health
problems may have in modifying their
behaviour.

[6]     All these reasons reinforce in my mind the acknowledgment by the Crown
that this is a stern sentence. It could
have been lighter. But it is another question as
to whether it is manifestly excessive.


[7]     Mr Smith, for the Crown, quite
properly drew my attention to a decision
which could be advanced in your favour: Morgan v Police High Court Hamilton
CRI 2007-409-17 22 February 2007 Priestley J, where there are considerable
similarities, two charges, on the first sentenced to six months, on the second to eight
months, a total of 14 months. The Judge on
appeal in that case, Priestley J, drew
attention to the fact that Judges sentencing on excessive blood alcohol charges are
essentially
exercising a discretion that there is no precise or inevitable sentence in
these situations. There are about ten factors which Wild
J in Clotworthy v Police
High Court Wanganui CRI 2003-483-13 25 September 2003 said need to be taken
into account. Because there
are ten factors and because each factor has to be
weighed, one cannot expect that two Judges will necessarily come to the same
decision.
Mr Whiteman, we call this technically questions of degree over which
reasonable people might differ and, as I have explained to you,
the appeal system
does not work on the basis that a High Court Judge's assessment of these factors is
going to be better than a District
Court Judge's assessment.            They are two
judgments. Therefore on appeal the High Court Judge has to be satisfied that there
has been an error in the examination of the relevant factors or that the decision is so
far out of kilter that it should be set aside.


[8]     Now the High Court in the case of Morgan criticised the District Court Judge
for the weight he gave to certain previous
excess breath alcohol convictions because
in that case of Morgan the appellant was facing charges for offending in 2006 but the
previous
offending went back to 1984, more than 20 years earlier. However, in your
case your previous offending was only two years ago. Perhaps
with the benefit of
hindsight one can say that your subsequent offending was trusting yourself to getting
a car again. A factor which
weighed heavily with the Judge in this case is the
protection of the community as an important sentencing purpose.


[9]     For
all these reasons I think that although the sentence was stern it was within
the power of the sentencing Judge to lawfully impose
and that you have not been

able to persuade me that it was manifestly excessive, so much so that this Court
should intervene and
set it aside.


[10]    For these reasons your appeal fails and the appeal is dismissed.




Solicitors:
Crown Solicitor, Dunedin,
for Respondent