Noble v Police [2012] NZHC 1984 (8 August 2012)

Last Updated: 7 September 2012

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI 2012-443-023 [2012] NZHC 1984

BETWEEN DAVID NOBLE Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 7 August 2012

Counsel: A Dallison for appellant

S A Law for respondent

Judgment: 8 August 2012

_{RESERVED JUDGMENT OF DOBSON J}

[1] On 7 June 2012, the appellant (Mr Noble) was sentenced in the District Court at New Plymouth on one conviction for driving with excess breath alcohol, being his third or greater number of convictions for that offending. Judge A C Roberts sentenced Mr Noble to 18 months’ imprisonment, and he now appeals against that sentence on the bases that it was manifestly excessive and that the sentencing Judge was wrong to reject a sentence of home detention as the appropriate alternative to imprisonment.

[2] On behalf of Mr Noble, Ms Dallison casts the circumstances of the driving conduct in this offending as being “innocuous”. Mr Noble was stopped at about

9 o’clock in the evening at a random breath testing check, and found to have a breath alcohol level of 481, relative to the limit of 400, micrograms of alcohol per litre of breath. There had been nothing in Mr Noble’s driving to excite the attention of the Police, and his explanation was that he had miscalculated the amount of alcohol he thought he could legitimately drink before driving. I am somewhat sceptical that a

_{person who is obviously a seasoned drinker, and has in the past had real problems}

NOBLE v NEW ZEALAND POLICE HC NWP CRI 2012-443-023 [8 August 2012]

with his alcohol consumption, could misjudge by what is arithmetically 17 per cent

the extent of “safe” drinking he could undertake.

[3] An important component in the relative seriousness of this offending is the extent of Mr Noble’s previous relevant convictions, and the sentences imposed on him for them. At the age of 57 he has 12 previous convictions for driving with excess breath or blood alcohol. The convictions span 30 years and the last one was some five years prior to the present offending. Most recently, in February 2008, Mr Noble was sentenced to nine months’ home detention and given a “final warning”. Prior to that he had been sentenced to terms of imprisonment for 10 months in August 2006 and three months in October 1996.

[4] The Judge reviewed the extensive history of alcohol-related offending and expressed the view that, at his age, Mr Noble was now not capable of changing his ways in relation to alcohol-related offending. The Judge rejected home detention as a “thoroughly inadequate response to your totally unacceptable behaviour”, and settled on the sentence he did in the following context:[1]

... You were given a final warning in February 2008. You were told then, reoffend and prison beckons. You reoffended. One day, Mr Noble, you might even at this advanced point of your life wake up to the fact that drink has compromised you. You may be with medical problems but alcohol is not helping. Alcohol is again costing you your liberty today and no more will you be indulged with limp sentences.

The pre-sentence report had recommended a short term of imprisonment, and the sentencing Judge recorded that that course had been urged on him by counsel then appearing for Mr Noble.

[5] Ms Dallison cited the 10 factors relevant to sentencing in repeat or recidivist excess breath alcohol offending from the High Court decision in Clotworthy v Police.[2] Considering those factors to measure the relative seriousness of the offending in this case, Ms Dallison argued that a sentence of 18 months’

_{imprisonment was manifestly excessive. In Clotworthy, the survey conducted by}

Wild J reflected a range of sentences between four months and two years’

imprisonment on the fourth to fourteenth convictions.[3]

[6] For the Police, Ms Law referred to the survey in Clotworthy as reflecting twelfth and thirteenth convictions attracting sentences of between 16 months and two years’ imprisonment.

[7] Of the factors in Clotworthy, certainly the first being the level of the alcohol reading is relatively low on this occasion. The second factor of the length of time elapsed since the last drink driving conviction could be said to be at the “better” end of the scale in that there has been no offending for five years. Also, this is not a case of there being two or more such offences in close succession. The manner of Mr Noble’s driving did not justify attention by the Police. I have some reservations in endorsing it as “innocuous” when the very rationale for the law is that all drivers have their reactions inhibited by alcohol, to the point that the law presumes a risk to themselves and other road users once the level of alcohol consumption causes readings over the legal limit. For adult drivers, New Zealand is more tolerant of alcohol consumption than other comparable jurisdictions. I would prefer to treat the absence of any observed bad driving as a neutral factor, in comparison with bad driving or an accident comprising an aggravating factor.

[8] Continuing through the factors identified in Clotworthy, Mr Noble was not disqualified from driving at the time. He entered a prompt guilty plea and is reported by the Police as having been remorseful about the bad choice he had made when apprehended.

[9] As to previous sentences, both home detention and imprisonment have been tried. The sentencing Judge may have approached the sentencing with an expectation that, where such an offender re-offends, there has to be an expectation of escalation in the seriousness of the sentencing response. The Judge explicitly acknowledged that Mr Noble had been given a “final warning” when last sentenced for this offence. However, each piece of offending must be considered in the context

_{of all its circumstances, including the relevant background of the offender, and the}

Court cannot constrain its individual sentencing assessment by any prediction of outcomes on a future occasion.

[10] A further factor identified in Clotworthy was the offender’s record of convictions for other types of offending. Ms Dallison acknowledges that Mr Noble’s criminal history is an unenviable one. His record is dominated by serious driving offences, including numerous convictions for driving whilst disqualified or as an unlicensed driver, in addition to the excess breath or blood alcohol convictions. He also has a spate of convictions for dishonesty, violence, possession of firearms and cannabis, and breaches of the terms of sentences imposed.

[11] Finally, Clotworthy recognises the relevance of any mitigating personal or family circumstances contributing to the offending. Having recognised that the driving conduct did not cause specific concern because of accident or injury, and given Mr Noble’s explanation that he drove as a result of miscalculating how much alcohol he might safely drink, there is nothing more on this head.

[12] Reflecting on the appropriate weighting to each of these considerations in Mr Noble’s case, I am satisfied that the length of sentence imposed was manifestly excessive. Whilst the factors can be reflected in a variety of approaches, one analysis that conforms to the model suggested by Clotworthy is to attribute a starting point of 15 months to reflect all circumstances of the offending, subject to an uplift of three months to reflect the extent of previous convictions, both directly of this type, and more generally, making a starting point of 18 months’ imprisonment.

[13] As to mitigating circumstances, Mr Noble has two on-going health problems. A report from his general practitioner dated 28 March 2012 confirms that he has a long history of symptoms of ischaemic heart disease. Mr Noble takes a variety of medication to address his heart-related problems. He also has chronic low back pain dating from an injury in 2002. The sentencing Judge was somewhat critical of the implication from the doctor’s report that Mr Noble is not particularly compliant with doctors’ instructions for best protecting his own health.

[14] Since sentencing, Ms Dallison reports that Mr Noble has recently been hospitalised on account of his health conditions, and she argues that these concerns render the sentence that would otherwise be appropriate for him to be disproportionately severe. Section 8(h) of the Sentencing Act 2002 obliges the Court to have regard to any such disproportionate severity, and as Mr Noble’s circumstances now present themselves, I am satisfied that an allowance should be made on that account.

[15] The other important mitigating circumstance is Mr Noble’s early guilty plea, and his expression of remorse for the misjudgement involved. That entitles him to the full 25 per cent discount sanctioned by the Supreme Court’s approach in Hessell v R.[4]

[16] Although the arithmetic is affected somewhat by rounding, making a deduction of 10 per cent from the starting point of 18 months to recognise disproportionate severity of the sentence and then 25 per cent of the remainder for the early guilty plea, results in an end sentence of a little more than 12 months’ imprisonment. I am satisfied that rounding that down to 12 months’ imprisonment is an adequate sentence in all the circumstances of this offending.

[17] The second aspect of Mr Noble’s appeal was the criticism of the Judge not substituting the prison sentence with one of home detention. It is appropriate to reflect on that in light of my finding that the length of prison sentence was manifestly excessive.

[18] Despite adopting that approach, I am not persuaded that the Judge’s rejection of home detention constitutes an error that should be altered on appeal. In opposing this aspect of the appeal, Ms Law cited the Court of Appeal’s decision in James v R on the approach to be taken to an appeal against refusal to grant home detention:[5]

We record that an appeal against a refusal to grant home detention does not provide an opportunity to revisit or review the merits. The question is whether Judge Tuohy erred in exercising his sentencing discretion: that is, did he apply an incorrect principle, give insufficient or excessive weight to a

particular factor, or was he plainly wrong? ... We are satisfied, in accordance with earlier authority in this Court, that the decision about whether home detention will meet those objectives in a particular case is a strictly evaluative exercise. It is a matter of judgment for the sentencing Judge to determine whether home detention is an adequate response to the seriousness of the offending.

[19] Notwithstanding my finding that the length of prison term was manifestly excessive, I am not satisfied that the approach the Judge adopted in rejecting home detention reflects any relevant form of error. As with the approach adopted by Brewer J in the case of a namesake of this appellant, where the sentencing Judge has appropriate regard to all the relevant factors in declining home detention, the exercise of the Judge’s discretion should not be set aside, regardless of the view that

might be taken on a complete review of the merits.[6]

[20] I accordingly allow the appeal and substitute a term of 12 months’ imprisonment. The special condition imposed by the sentencing Judge and term of disqualification from holding a driver’s licence remain unchanged.

Dobson J

Solicitors:

Billings, New Plymouth for appellant

Crown Solicitor, New Plymouth for respondent

---

[1] _{Police v Noble DC New Plymouth CRI-2012-043-485, 7 June 2012 at [6].}

[2] Clotworthy v Police (2003) 20 CRNZ 439.

[3] At [18].

[4] _{Hessell v R [2010] NZSC 135 at [73].}

[5] James v R [2010] NZCA 206 at [17].

[6] R v Noble [2012] NZHC 800.