Ilderton v Police HC Timaru CRI 2010-476-7 [2010] NZHC 1275 (21 July 2010)

Last Updated: 5 August 2010

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

_{CRI-2010-476-000007}

PAUL ILDERTON

Appellant

v

POLICE

Respondent

Hearing: 30 June 2010 (by video link)

7 July 2010 (by conference call)

21 July 2010 - disputed facts hearing

Appearances: WNP van Vuuren and P Bartrum for Appellant

C A O'Connor for Respondent

Judgment: 21 July 2010

_{ORAL JUDGMENT OF HON. JUSTICE FRENCH}

Introduction

[1] This is an appeal against sentence.

[2] Following a plea of guilty, the appellant was convicted in the District Court of one charge of drink driving causing injury. He was sentenced to a term of

_{imprisonment of 14 months and disqualified indefinitely.}

ILDERTON V POLICE HC TIM CRI-2010-476-000007 21 July 2010

Facts of the offending

[3] The facts of the offending were that on Boxing Day 2009 the victim and her partner had spent the afternoon or evening at the appellant’s home. They were in the process of leaving. The victim was in the front seat of their car, waiting for her partner, when the appellant got into the driver’s seat. The victim thought he was just going to reverse out of the driveway for them but instead, much to her consternation, the appellant took off at speed for a spin around the block. It was in the early hours of the morning.

[4] The victim said she became very concerned about the manner of his driving. She screamed at the appellant to slow down and stop, but he ignored her and continued driving.

[5] As he approached an intersection, the appellant braked heavily. He lost control of the vehicle, which slid across the road and struck a power pole. The victim was not wearing her seatbelt. She was thrown forward and struck her head on the windscreen.

[6] Police calculate the speed of the vehicle prior to losing control to be in excess of 80 kilometres per hour. They reached that assessment on the basis of the structural damage to the vehicle and the length of the skid marks. The appellant disputes this and says he was only going 60 kilometres per hour. The accident occurred in a built up area where the speed limit is 50 kilometres per hour.

[7] Subsequent blood alcohol procedures undertaken recorded a blood alcohol level of 221 milligrams of alcohol per 100 millilitres of blood.

[8] According to the police summary of facts, the appellant’s explanation was that the brakes had failed. He also stated that he had drunk six glasses of whisky to steady his nerves after the accident, which accounted for the high reading.

[9] The victim, who is an epileptic, suffered a seizure following the accident, as well as a broken wrist, cuts and bruising to her head, neck and arms. In her victim

impact report, she says her arm still gives her pain, and also mentions that she and her partner were without a car for a period of time.

Reports

[10] The information before the District Court Judge included a pre-sentence report. It told the Judge that the appellant is 51 years of age, a sickness beneficiary with only one previous conviction, but that was for drink driving. The level on that occasion was also high at 1081 micrograms. The appellant had been fined $1000 and disqualified for nine months. The disqualification period had not long ended before the incident at issue in this case.

[11] The pre-sentence report recorded the appellant as denying he had a drinking problem, despite alcohol assessment revealing a harmful pattern. The report described alcohol abuse and a sense of entitlement as being factors of the offending.

The District Court sentence

[12] In her sentencing notes, the Judge referred to the appellant’s claim that the reason the blood alcohol level was so high was because immediately after the accident he had consumed whisky to steady his nerves. However, the Judge said she was sentencing him on the basis of the blood alcohol assessment level done at the time, and to which he had pleaded guilty. In taking that view, it appears the Judge was relying on the presumption in s 77(2) of the Land Transport Act 1998:

77 Presumptions relating to alcohol-testing

...

(2) For the purposes of proceedings for an offence against this Act arising out of the circumstances in respect of which a blood specimen was taken from the defendant under section 72 or section

73, it is to be conclusively presumed that the proportion of alcohol in the defendant's blood at the time of the alleged offence was the same

as the proportion of alcohol in the blood specimen taken from the

defendant.

i) The level of alcohol the appellant “had in his system at the time”.

ii) His excessive speed.

iii) The fact that his passenger requested him to stop but he ignored her.

iv) The fact that he continued to drive, and only stopped because he lost control of the vehicle.

v) The fact of the previous relevant conviction, involving as it did a very high level and being in a very short period of time of this offence.

vi) The injuries caused to the victim.

[14] The Judge adopted a starting point of 18 months’ imprisonment, which she uplifted to 21 months on account of the previous conviction. From that total, the Judge then deducted a third due to the early guilty plea, arriving at an end sentence of 14 months.

[15] As she was required to do, the Judge then turned to consideration of home detention or community detention. She concluded:

[26] I have concluded that home detention would not achieve the purposes and principles of sentencing that I have mentioned. In my view there is a clear need, particularly for offenders such as yourself, to bring it home to you and others within the community, the rural community, the seriousness of drinking and driving, and hopefully by the sentence of imprisonment I will not only deter you, but I will stop others for thinking that it is okay to drive whilst they have been drinking.

Grounds of appeal

[16] On appeal, no issue was taken with the disqualification, but it was submitted that the sentence was manifestly excessive because 14 months was too long, and the Judge was wrong not to impose a sentence of home detention.

[18] Counsel accepted that the decision whether or not to impose the sentence of home detention involved the exercise of a discretion. That means, of course, that appellate intervention is only warranted if the sentencing Judge has made an error of principle, taken into account an irrelevant factor, or failed to take into account a relevant factor, or the decision was plainly wrong.

[19] What is alleged as error in this case was as follows:

i) That the Judge placed undue or excessive weight on certain factors, including deterrence, recent previous conviction and apparent attitude revealed by probation officer’s report.

ii) The Judge gave insufficient weight to factors including the fact the appellant had only recently started offending, having reached the age of 50 conviction-free.

iii) The fact the blood test had been taken after the accident, by which time the appellant had consumed alcohol to calm his nerves.

iv) Amends made to the victim.

v) The fact of being assessed as at low risk of further offending. vi) The fact he was not working due to a shoulder injury which

made the sentence of imprisonment disproportionately severe. vii) The fact the victim’s injuries were not serious.

viii) That the Judge wrongly placed weight on the decisions of

Barnes v Police HC Timaru CRI-2009-476-000018, 16

October 2009, French J and Andersen v Police HC Auckland

CRI-2008-404-000080, 10 April 2008, Venning J, despite the

fact those cases were highly distinguishable, involving as they did fatalities and where the driving had been more culpable.

ix) The Judge failed to consider whether the interests of deterrence could be met by a sentence of home detention, contrary to the Court of Appeal decision in R v Iosefa [2008]

_{NZCA 453.}

Discussion

[20] At the conclusion of the hearing in June, I indicated that with one exception, none of the matters raised could in my view qualify as error warranting appellate intervention. The one exception was the sentencing Judge’s treatment of the claim that the appellant’s high blood alcohol level was attributable to his having consumed six glasses of whisky after the accident to steady his nerves, the issue being whether, instead of simply invoking the presumption, the Judge should have turned her mind to consider whether to hold a contested facts hearing.

[21] There is no doubt that the high level of 221 was a significant aggravating feature. It was the first aggravating feature identified by the Judge in her notes.

[22] Counsel then filed further submissions and referred me to a number of authorities, including the Court of Appeal decision in Transport Ministry v Sowman [1978] 1 NZLR 218, which has been confirmed in recent years in Woodhouse v Police HC Wellington CRI-2010-435-000002, 19 May 2010, Miller J; Russell v Police HC Whangarei CRI-2009-488-000046, 15 December 2009, Potter J; and Police v Holland [2009] DCR 152.

[23] The following principles can be distilled from those authorities:

i) In principle, neither the statutory presumption nor s 24(1)(b) of the Sentencing Act 2002 prevents a sentencing Judge from having regard to actual blood alcohol levels for the purposes of sentencing.

ii) A distinction is to be drawn between the fact of being over the limit - which cannot be contested - and the extent to which the driver is over the limit - which may be contested at sentencing.

iii) However, the discretion to consider such material for sentencing purposes is only to be exercised in exceptional cases and where there is cogent material. This is reinforced by s 24(2)(c) of the Sentencing Act, which refers to disputed facts not having to be considered if they are wholly implausible or manifestly false.

[24] It follows from these principles that the Judge was wrong not to turn her mind to holding a contested facts hearing. Had she done so, it is likely she would have been sceptical of the appellant’s claims, but unable, without knowing more, to dismiss them as manifestly false or wholly implausible. As I have said, there is no doubt that the high level was an important aggravating feature.

[25] One option in these circumstances is for the appeal Court to remit the matter back to the District Court for the contested facts hearing to take place. The other is for the appellate Court itself to conduct the contested facts hearing. The contested facts hearing needed to be held as soon as possible, and because of that I decided that the most appropriate course of action was for me to conduct the hearing myself.

[26] The contested facts hearing duly took place today when I heard from two witnesses.

[27] The police called a Constable Lamano, who was actually off duty on the night of the accident. He lived nearby, and went to attend. He testified that Mr Ilderton acknowledged he was the driver and that he smelt of alcohol.

[28] The constable said that Mr Ilderton wanted to return home so he could inform the victim’s partner of what had happened. Initially the constable told him to stay at the scene, but in the end both of them returned to the appellant’s house, which is only a short distance from the scene of the accident.

[29] The constable said that during the course of their walk, Mr Ilderton made the following comments. First he acknowledged that he had had a few drinks. Secondly, he referred to his previous conviction for drink driving. He then asked the police officer to be a friend to him and to get him out of trouble. He expressed concern that he was going to lose his job as a result of what had happened. The constable said that in response he told Mr Ilderton that he would be processed at least for drink driving.

[30] On arrival at the house, the constable left Mr Ilderton there and returned to the scene of the accident. He stated that later, when he saw Mr Ilderton again, Mr Ilderton had cleaned his face and changed his shirt.

[31] The constable also told me that he made notes at home of his observations on the same day as the incident, 27 December. These were typed up at the police station the following day.

[32] For his part, the appellant also gave evidence. He had a somewhat different version of events, although aspects of it were the same as the testimony given by the constable.

[33] Mr Ilderton acknowledged he had been drinking prior to the accident, and said he estimated he had drunk about five or six stubbies of Speights beer. He also stated that during the course of the evening he consumed a dinner of roast beef.

[34] He acknowledged that during the walk home from the accident scene to his house, he may have told the constable about his previous conviction. He denied asking the constable to get him out of trouble, but also said his head was in turmoil and that he was worried about what had happened to the victim.

[35] He stated that when he went into his house and told his wife, who is a registered nurse, what had happened, she slapped his face and went into their bedroom. He said he then went into the kitchen and drank a glass containing three to four shots of undiluted whisky. Following that, he spoke briefly to the victim’s partner, who had returned from the accident scene and then had a second glass of

undiluted whisky also containing three to four shots. He denied he had washed his face and changed his shirt by the time the police arrived.

[36] Mr Ilderton estimated there was a 12 to 15 minute interval between the time that he arrived back at the house and the time the police arrived.

[37] His explanation for drinking the alcohol was that he was nervous and wanted to calm his nerves. He talked about wanting to unwind, or calm down.

[38] I have carefully considered the evidence of Mr Ilderton. As counsel has pointed out, there is only his evidence as to what happened in the kitchen, as no-one else was present to observe what he was doing. I therefore cannot be sure whether or not he did consume the two glasses of undiluted whisky as he claims. However, I am satisfied that even if he did consume the whisky in the house, it is an irresistible inference that his intention in doing so was to thwart the breath testing procedures.

[39] By his own account, his previous conviction was on his mind when he got home. He knew the police were on their way and that he would be breath tested. I also accept the evidence of Constable Lamano that he had asked the constable to be a friend to him and to get him out of trouble.

[40] In my view, against that background it is implausible that his intention in drinking the alcohol was to calm down especially given also the large quantity of whisky and the short period of time involved. I do not consider his explanation is an inference that is equally consistent with the inference of an intention to defeat any blood testing or breath testing processes. Unfortunately, in my assessment, the adverse inference is irresistible, and certainly one which I consider to be beyond reasonable doubt, given in particular the context and the previous conversation with the constable on the way home.

[41] My finding therefore, as a result of the contested facts hearing, is that any alcohol drunk after the accident was drunk with the deliberate purpose of defeating any subsequent breath testing processes.

[42] In light of that finding, Mr van Vuuren very properly accepted that the appeal must fail. Indeed, it could be said that my finding would be grounds for increasing the sentence. However, I certainly was not minded to take that approach.

[43] In my view, looking again at the Judge’s reasoning, it is very clear to me that her considerations were measured and reasoned. The sentencing notes are detailed. She has clearly considered all of the appellant’s personal circumstances and taken them into account. She was also cognizant of the principles and purposes of sentencing. She was not saying that home detention does not have a deterrent aspect, but simply that in her assessment this case required more.

[44] Her citation of Barnes and Andersen has to be seen in that context. I do not interpret the Judge as saying these were cases that were directly comparable. They clearly are not. The significance of those cases is simply that they reflect the Courts taking a stricter approach to this type of offending.

[45] It follows from all of the above that I consider the decision the Judge reached was a decision open to her – indeed it was one I would have reached myself on the same material.

[46] The appeal is accordingly dismissed.

Solicitors:

Petrie Mayman Clark, Timaru

Crown Solicitor’s Office, Timaru