Cuckson v Police HC Invercargill CRI-2011-425-000033 [2011] NZHC 940 (15 August 2011)

Last Updated: 2 September 2011

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

_{CRI-2011-425-000033}

MARK CUCKSON

Appellant

v

POLICE

_Respondent

Hearing: 15 August 2011

Appearances: P Byrne for Appellant

E Riddell for Respondent

Judgment: 15 August 2011

_{ORAL JUDGMENT OF HON JUSTICE FRENCH}

Introduction

[1] This is an appeal against sentence.

[2] Following pleas of guilty, the appellant Mr Cuckson was convicted of three charges: driving with an excess breath alcohol level, reckless driving, and failing to stop and ascertain injury in a non-injury crash.

[3] A District Court Judge sentenced him to concurrent terms of imprisonment of one month. He also ordered Mr Cuckson to pay reparation in the sum of $13,439.13 and disqualified him from holding or obtaining a driver licence for a period of 12

_months.

CUCKSON V POLICE HC INV CRI-2011-425-000033 15 August 2011

The facts of the offending

[4] At about 11 p.m. on Saturday 21 May this year, Mr Cuckson drove a car around the streets of Wanaka while over three times the legal limit.

[5] In the course of his driving, he had two separate crashes, failing to stop at both of them. He mounted a footpath, nearly hitting some pedestrians; damaged three cars (one of which was written off), a boat trailer, and knocked over a large double power pole, causing all the street lighting in that area to go out.

[6] When spoken to by the police, Mr Cuckson stated he had been drinking all day, and had been taken home by friends. He could not remember driving or the reasons for it. His breath alcohol level was 1251.

Sentencing in the District Court

[7] The information before the sentencing Judge included a pre-sentence report. It told the Judge the appellant is a 20 year old seasonal working visitor, a first offender with what the Judge described as an enormous drug and alcohol problem. The pre-sentence report recommended community work and supervision.

[8] Mr Cuckson is a British national. Prior to his offending he had been served with a notice of liability for deportation in relation to a matter for which he had received diversion in September 2010.

[9] By the time of the sentencing in the current matter on 8 August, Mr Cuckson had been told he had until 13 August 2011 to depart New Zealand voluntarily or face the prospect of being served with a deportation order.

[10] In those circumstances, his counsel advocated that the matter could be dealt with by way of an immediate payment of a substantial amount of reparation, giving Mr Cuckson an opportunity to depart New Zealand.

[11] The sentencing Judge was not attracted to that proposition. He accepted that Mr Cuckson has a significant history of drug and alcohol abuse, and commented that he believed Mr Cuckson was in need of intensive therapy. However, in the Judge’s view, it was preferable for Mr Cuckson to seek that assistance in his home country.

[12] The Judge acknowledged that funds were available immediately to pay the total amount of reparation sought, namely $13,489.13, and stated that he was taking that into account.

[13] The Judge went on to consider the principles and purposes under the Sentencing Act 2002. He noted that electronic monitoring was not available as an option because of the area in which Mr Cuckson lives, and that, due to his imminent departure from New Zealand, he would not be able to complete a community-based sentence. In the Judge’s view, it would be unacceptable were Mr Cuckson to be allowed to leave the country without penalty, especially having regard to the seriousness of the offending. The Judge considered that a short, sharp shock would benefit Mr Cuckson, and that accordingly, in all the circumstances, the penalty would have to take the form of a sentence of imprisonment.

[14] The Judge imposed one month’s imprisonment in respect of each charge, the

sentence to run concurrently, and made the other orders I have already mentioned. [15] I pause here to record that full reparation has been paid.

Grounds of appeal

[16] On appeal, counsel, Ms Byrne, challenges the imposition of the custodial sentence on two grounds:

(i) That the sentence was manifestly excessive, the Judge failing to have sufficient regard to Mr Cuckson’s age, his early guilty pleas, his remorse, lack of previous convictions and character references.

(ii) Most importantly, the Judge erred in principle:

a. by taking Mr Cuckson’s immigration status into account as a reason for rejecting a community-based sentencing option;

_{b. by failing to recognise that reparation is a sentence.}

Discussion

[17] The Judge’s approach was understandable. This was a disgraceful piece of driving and Mr Cuckson is indeed very fortunate that he did not seriously injure or kill someone. There are significant aggravating features.

[18] However, as Ms Riddell has responsibly acknowledged, it is well established that a person’s immigration status and liability for deportation should not be taken into account on sentencing. [1]

[19] It follows that the Judge has erred in principle.

[20] That being the case, I must now consider the matter afresh.

[21] As Ms Riddell also responsibly acknowledged, in the normal run of things it would be unusual for a first offender, notwithstanding the high breath alcohol level, to be sentenced to a term of imprisonment of one month, in the circumstances.

[22] That being the case, I consider a custodial sentence is not tenable, and that the most appropriate course of action would be to impose a fine instead.

[23] I have come to that conclusion taking into account also the fact that Mr Cuckson has already served a week in prison. That, his counsel tells me, has been enough to constitute the short, sharp shock that the District Court Judge considered desirable. Moreover, prior to sentencing, Mr Cuckson was subject to a

_{nightly curfew, as part of his bail conditions.}

[24] Accordingly, in all the circumstances, I have come to a clear view that the sentence of a term of imprisonment must be quashed. It is substituted by the imposition of a fine in respect of the drink driving charge in the sum of $2500. The fine is to be paid immediately.

[25] In all other respects (the reparation and the disqualification) the Judge’s

decision is confirmed.

Solicitors:

MacAlister Todd Phillips, Queenstown

Crown Solicitor’s Office, Invercargill

---

[1] R v Ondra [2009] NZCA 489; R v Ahlquist [1989] NZCA 87; (1989) 4 CRNZ 238; R v Appitu CA31/98, 29 April

1998; R v Zhang CA56/05, 24 May 2005; Nath v R [2010] NZCA 418.