O'Hara v Police [2012] NZHC 1263 (7 June 2012)

Last Updated: 18 June 2012

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2012-419-08
CRI-2012-419-10 [2012] NZHC 1263

BETWEEN TODD O'HARA Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 7 June 2012

Counsel: MBJ Curran for Appellant

SN Cameron for Respondent

Judgment: 7 June 2012

_{JUDGMENT OF BREWER J}

SOLICITORS/COUNSEL

Mike Curran (Hamilton) for Appellant

_{Almao Douch (Hamilton) for Respondent}

O'HARA V POLICE HC HAM CRI-2012-419-08 [7 June 2012]

Introduction

[1] By notice of appeal dated 13 March 2012, the appellant appeals his sentence of 12 months’ imprisonment handed down against him in the District Court at Thames on 28 February 2012 by Judge MLSF Burnett.

[2] This was a re-sentence. The appellant had, on 10 May 2011 in the District Court at North Shore, been sentenced to five months’ community detention and nine months’ supervision on one charge of driving with excess breath alcohol (third or subsequent offence). In fact, it was his fifth conviction for this offence.

[3] However, the District Court Judge also had to sentence the appellant on a number of other charges. There were two charges of breach of community detention and three charges of breach of supervision. These five charges related to the original sentence for driving with excess breath alcohol.

[4] Finally, the District Court Judge had to sentence the appellant on one charge of driving while disqualified. The date concerned was 9 February 2012.

[5] The overall sentence of 12 months’ imprisonment was made up in this way:

(a) Driving with excess breath alcohol (third or subsequent offence) –

eight months’ imprisonment;

(b) On each of the charges of breach of community detention and breach of supervision – three months’ imprisonment concurrent with each other but cumulative as to three months (in total) on the eight months imposed for the driving with excess breath alcohol charge;

(c) Driving while disqualified – one months’ imprisonment cumulative

upon the other sentences.

[6] Before coming to the submissions of counsel, I note that the appellant has a very lengthy criminal history. Of direct relevance are his convictions for driving with excess breath alcohol:

Date Sentence

1995. Disqualified from driving for six months; Fine of $1,000
1996. Disqualified from driving for nine months; Fine of $1,250

1998 Disqualified from driving for eight months;

One months’ imprisonment (concurrent with two

other minor charges)

2004 Disqualified from driving for one year;

Six months’ imprisonment (denied leave to apply for

home detention)

The term of imprisonment was concurrent with identical sentences for unlawfully taking a motor vehicle and failing to answer District Court bail

[7] The dates for breaching the community based sentences are: (a) Breach of community detention – 21 June 2011

(b) Breach of community detention – 22 June 2011 (c) Breach of supervision – 30 June 2011

(d) Breach of supervision – 29 July 2011 (e) Breach of supervision – 4 August 2011

Appellant’s submissions

[8] The first ground of appeal is that the District Court Judge, in taking a starting point of 12 months’ imprisonment for the driving with excess breath alcohol charge, failed to relate that sentence to the earlier sentence of community detention and

supervision. Counsel cites the decision of Heath J in White v Police,[1] which was approved by the Court of Appeal in R v Morgan.[2]

[9] Mr Curran for the appellant submits that the District Court Judge effectively punished the appellant for non-compliance with the community based sentence. The sentencing notes relating to the original sentence are not available. Mr Curran has advised me that it appears the file has been lost somewhere in the District Court system. He tells me that extensive efforts have been made to find the file, to no avail. As a result he submits, and I agree, that I must take it that in order to reach an end sentence of community detention and supervision the Judge in question must have stressed the principle of rehabilitation and come down from a short term of imprisonment. In terms of the approach to this appeal, I will take it that I should seek the lower end of a period of imprisonment from which to base my assessment of the appeal.

[10] So far as the breaches of the community detention and supervision sentences are concerned, counsel for the appellant submits that although the District Court Judge was entitled to deal with these matters separately, she should still have had consideration to the totality principle. There is nothing on the face of the sentencing notes which shows that she did.

[11] Counsel submits that the imposition of a cumulative term totalling three months for those breaches is the maximum available, and there is no indication that the major mitigating factor of guilty pleas has been taken into account.

[12] I pause here to note that counsel is incorrect in one respect. The maximum that the sentencing Judge could have imposed on each of the charges of breach of community detention was six months’ imprisonment and on each of the charges of breach of supervision a term of three months’ imprisonment.

[13] Finally, in relation to the breach charges, counsel for the appellant submits that the District Court Judge should have taken into account that the appellant was

subject to the community detention and supervision orders and did make some efforts to comply. The appellant should have been given credit for this.

[14] So far as the sentence in relation to driving while disqualified is concerned, the appellant’s submission is that this is his first conviction for that offence and although a separate sentence was warranted, it should not have been a term of imprisonment. The most appropriate outcome, it is submitted, was for a period of disqualification to be served cumulatively on the period of disqualification already in existence.

[15] Counsel for the appellant does not suggest what an appropriate re-sentencing package would be under the circumstances I have outlined. He simply notes that the appellant will have served more than three months’ imprisonment and suggests that that should be sufficient.

Respondent’s submissions

[16] Counsel for the respondent submits that the original sentencing Judge likely had in mind a starting point of around 10-12 months’ imprisonment. Given that the appellant’s failures to comply with the community based sentences began almost immediately after the sentence was handed down, no credit should be given for the period of time in which he was subject to that sentence. Accordingly, counsel for the respondent submits that there is nothing out of the way by the District Court Judge adopting a starting point of 12 months’ imprisonment. This was, after all, the appellant’s fifth offence and it involved a relatively high reading (866).

[17] With respect to the overall sentence on the breaches charges of three months’ imprisonment cumulative upon the eight months for the driving with excess breath alcohol charge, counsel for the respondent submits that this is entirely justifiable. Counsel points out, and I agree, that counsel for the appellant was incorrect to submit that the District Court Judge had imposed the maximum penalty. That would have been the case if there had been one charge of breach of supervision, but here there were five charges including two of breach of community detention.

[18] In relation to the sentence for the charge of driving while disqualified, the respondent’s submission is that a cumulative sentence was necessary and under the circumstances imprisonment was inevitable. The offence was committed while the appellant was still subject to sentence, and after other charges had been laid relating to other breaches. Another factor was that the appellant, on being stopped by the Police, gave false details.

The District Court Judge’s decision

[19] I can glean very little assistance from the District Court Judge’s decision as to the basis upon which she came to her conclusions. I understand fully why it is that counsel for the appellant considered it necessary to bring this appeal. I also note that the District Court Judge appears to be confused as to what she was actually sentencing on. In the first paragraph of her sentencing notes, the District Court Judge referred to the appellant being for sentence on three charges of breaching home detention in addition to the three charges of breaching supervision and two of breaching community detention. There were no charges of breaching home detention and there is nothing in the sentencing notes to indicate that the District Court Judge had realised that mistake by the time she decided “for all of the breaches” to add three months’ imprisonment to the sentence of eight months’ imprisonment on the driving with excess breath alcohol charge.

Analysis

[20] Ultimately, my task is to determine whether the end result of the re-sentence was clearly excessive. I will do that by going through the charges and considering what would have been appropriate sentences. If I determine that the District Court Judge’s result was wrong, I can quash the sentence, or any part of it, and substitute the sentence which I find should have been imposed in the first place. However, my task is not to re-sentence.

[21] I begin with the charge of driving with excess breath alcohol (third or

subsequent offence). I accept Mr Curran’s submission that, as enunciated by the

Court of Appeal in R v Morgan,[3] the District Court Judge had to have regard to the original sentence and to arrive at a re-sentence which was not disproportionate. Imprisonment was inevitable given that the appellant had failed to take advantage of the opportunity offered to him for a community based sentence. However, that failure could not be taken into account for the purpose of assessing what a proper sentence should be.

[22] I do not know the circumstances of the driving or why the original sentencing Judge chose a community based sentence. I note that the reading was quite high (866) but that six years had elapsed since the last offence. Having discussed the matter with counsel, I will adopt the most favourable view for the appellant. I note that Mr Curran for the appellant submitted that a starting point in the range of three to nine months’ imprisonment was available given that this is not an area where there is a tariff decision. I agree with Mr Curran that the District Court Judge went too high in adopting a starting point of 12 months’ imprisonment. That would have been unexceptional, and indeed lenient, if she had been sentencing in the first instance. But given that the original sentencing Judge had decided that a sentence of five months’ community detention combined with nine months’ supervision was appropriate, a lower sentencing range was indicated. In my view that is eight months’ imprisonment. To that must be applied a 25% discount for the early guilty plea. That takes the end sentence to six months’ imprisonment. I note that the District Court Judge gave a one-third discount, but that is excessive. The offence was committed on 30 January 2011, after the decision of the Supreme Court in

Hessell v R[4] was released.

[23] I agree with counsel for the respondent that no further discount should have been given for the time served of the community based sentences. It is clear from the other charges and from the Department of Corrections report that there was scant compliance. Further, the community detention sentence was suspended on 15 July

2011 because the appellant no longer had suitable accommodation. I accept that

Mr Curran has a point when he stresses that the appellant did serve a period of community detention and was subject to the sentence of supervision. But, standing

back and looking at the eight months’ imprisonment starting point reduced to six months’ imprisonment for the early guilty plea, I do not see any offence against the principle of totality.

[24] As to the five breaches of the original sentence, I find that the District Court Judge was correct to treat them cumulatively. Mr Curran responsibly accepts that. They are discrete offences unconnected to the original sentence. However, I do accept that the totality principle has to apply. Two of the five charges carried a maximum sentence of six months’ imprisonment. They related to breaches of curfew

– the heart of a sentence of community detention. Three of the charges have a maximum sentence of three months’ imprisonment. A standalone sentence of four to five months’ imprisonment was justified. A reduction for pleas of guilty would be required, but given that pleas of not guilty were entered originally on the more serious charges of breach of community detention, it would have been in the order of

15%. Nevertheless, taking into account the totality principle, I agree with the District Court Judge that a total sentence of three months’ imprisonment cumulative with the excess breath alcohol charge was appropriate. That makes a total of nine months’ imprisonment.

[25] As for the charge of driving while disqualified, I agree with the submissions of counsel for the respondent that a sentence of imprisonment had to be imposed and that it had to be a cumulative sentence. The circumstances of that offending, albeit a first offence, mean that it would have been inappropriate to simply impose a further period of disqualification from driving. This offence occurred in the context of complete defiance of the regime to which he was subject. I agree with the District Court Judge that one month imprisonment would be appropriate. That would be cumulative upon the nine months to which I have just referred and brings a total term of 10 months’ imprisonment.

Decision

[26] The District Court Judge’s sentences amounted to eight months, plus three

months, plus one month, totalling 12 months’ imprisonment. The way that I have

calculated an appropriate sentence yields six months, plus three months, plus one month, totalling 10 months.

[27] The Court of Appeal frequently enjoins appellate Judges not to tinker with the sentences of Judges of lower Courts. In this case I think that the outcome I have reached is materially different to the outcome reached by the District Court Judge.

[28] Accordingly, I allow the appeal in respect of the charge of driving with excess breath alcohol (third or subsequent offence). I quash the sentence of eight months’ imprisonment and substitute a sentence of six months’ imprisonment.

[29] I confirm the remaining sentences of the District Court Judge and they are to be served, as before, cumulatively as to three months plus one month on the substituted sentence of six months’ imprisonment. The total period of imprisonment

_{is accordingly 10 months.}

Brewer J

---

[1] _{White v Police HC Hamilton CRI 2006-419-44, 6 April 2006.}
[2] R v Morgan [2008] NZCA 232.
[3] _{Ibid, at [14]-[15].}
[4] Hessell v R [2011] 1 NZLR 607 (SC).