Quensell v Police HC New Plymouth CRI 2011-443-001 [2011] NZHC 172 (2 March 2011)

Last Updated: 28 May 2011

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

_{CRI 2011-443-001}

BETWEEN EZRA JAMES QUENSELL Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 2 March 2011

Counsel: P Keegan for Appellant

S Ellis for Respondent

Judgment: 2 March 2011

_{(ORAL) JUDGMENT OF HEATH J}

Solicitors:

Crown Solicitor, PO Box 738, New Plymouth

Counsel:

_{P Keegan, PO Box 8152, New Plymouth}

QUENSELL V NEW ZEALAND POLICE HC NWP CRI 2011-443-001 2 March 2011

The appeal

[1] Mr Quensell appeals against an effective sentence of 15 months imprisonment, imposed by Judge Roberts in the District Court at New Plymouth. The offending to which the sentence responded involved driving with an excess breath alcohol concentration and driving while disqualified or forbidden.

Facts

[2] The facts with which the District Court Judge was faced, involved three separate incidents. I provide a brief summary of each.

[3] At about 11pm on 27 October 2010, Mr Quensell was driving a motor vehicle on Dawson Street, New Plymouth. He was stopped by the Police. He accepted that he was an unlicenced driver and said that he had only driven the vehicle a short distance to park near his former girlfriend’s address.

[4] At about 4.00pm on 31 December 2010, Mr Quensell was driving along State Highway 29 near Matamata. When stopped he confirmed that he was a disqualified driver.

[5] At about 12.20am on 20 January 2011, Mr Quensell was driving a vehicle on Gilbert Street in New Plymouth. That was after he had been forbidden to drive by Police. He was spoken to after reports of boy racer activity in the area. Mr Quensell failed a roadside breath screening test. Subsequently, he was found to have an excess breath alcohol concentration of 666 micrograms of alcohol per litre of breath.

Procedural history

[6] Mr Quensell came before the Court on one charge of driving while disqualified on a third or subsequent occasion, in respect of the 27 October 2010

incident, on 17 January 2011. He pleaded guilty at that time. The offending that occurred on 20 January 2011 occurred while he was on bail pending sentence.

[7] When arrested on the later charge, Mr Quensell indicated that pleas of guilty would be entered to the remaining charges. One of those, the driving charge relating to the incident in Matamata, was not formally before the Court at that stage by way of information.

[8] Following discussions between counsel and the presiding Judge, on 20

January 2011, Mr Quensell was remanded in custody in circumstances to which I

shall return.

[9] Mr Quensell was brought back before the Court for sentence on 21 January

2011, at which time the Judge imposed the effective sentence in issue. In all there were four charges to which Mr Quensell entered pleas of guilty. They were two charges of driving while disqualified on a third or subsequent occasion, one of driving with an excess breath alcohol concentration and one of driving while forbidden.

Analysis

[10] The nature of the offending is such that it must be addressed by way of totality, with the excess breath alcohol charge being considered as the lead offence for sentencing purposes.

[11] Mr Keegan, for Mr Quensell, has advanced forcefully on his client’s behalf,

three points for my consideration:

(a) The first relates to an indication that is said to have been given at the bail hearing on 20 January 2011, in respect of a likely sentence if Mr Quensell were to enter a guilty plea to remaining charges.

(b) The second relates to the credit given for the guilty pleas.

(c) The third relates to totality and whether the sentence imposed was one that was excessive, given the totality of the circumstances.

[12] On the first point, it is clear from the notes transcribed from the discussions between Mr Keegan and Judge Roberts that no firm sentencing indication was given. A particular exchange between Mr Keegan and the Judge, in which Mr Keegan mentioned a potential sentence of about eight months imprisonment could have been seen by Mr Quensell as some form of implicit acceptance by the Judge of that suggestion but there is nothing in the transcript to indicate that indication was given.

[13] In any event, Mr Quensell does not wish to avail himself of the ordinary remedy when challenging a sentence in excess of that previously indicated. He does not wish me to treat the appeal as one against conviction and to remit the informations for hearing in the District Court. As I understand it, Mr Quensell understands that the credit for the guilty pleas may well disappear if that were to occur.

[14] There is no basis to interfere with the District Court Judge’s sentence on the

first of the grounds advanced.

[15] The second ground relates to the effective credit of 17% for the early guilty pleas. In terms of Hessell v R[1] the Court should now give no more than a 25% credit for guilty pleas. The approach taken by the Supreme Court is much less prescriptive than that previously indicated when Hessell v R[2] was determined by the Court of Appeal.

[16] The breadth of the discretion conferred on the Court by the Supreme Court in Hessell, suggests that authorities such as R v McQuillan[3] may assume greater importance. In that case, the Court of Appeal made it clear that the inevitability of conviction was something that militated against a significant credit for guilty pleas in

_{the context of driving while disqualified and alcohol related driving offences.}

[17] Given that the last of the offences occurred while Mr Quensell was on bail and the inevitability of conviction on the charges, the credit given by the District Court Judge was, if anything, generous. There is no merit in the second point advanced.

[18] The third point relates to the totality principle. The question is simply whether having regard to all the circumstances, the effective sentence imposed was too great to meet the nature of the overall offending. In my view, the sentence was well within the range to meet offending of this type, particularly having regard to the discrete occasions on which the offending took place and the earlier convictions for driving while disqualified and driving with an excess breath or blood alcohol concentration. That ground of appeal also fails.

_{[19] For those reasons, the appeal against sentence is dismissed.}

P R Heath J

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[1] _{Hessell v R [2010] NZSC 135 at [75].}
[2] _{Hessell v R [2010] 2 NZLR 298 (CA).}
[3] R v McQuillan CA129/04, 12 August 2004 at [24].