McCrae v Police [2012] NZHC 2008 (10 August 2012)

Last Updated: 7 September 2012

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI 2012-416-000009 [2012] NZHC 2008

BETWEEN JAY TEREMOANA MCCRAE Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 9 August 2012

Counsel: D K Nicoloso and A McIlroy for appellant

A Clarke for respondent

Judgment: 10 August 2012

_{RESERVED JUDGMENT OF DOBSON J}

[1] The appellant (Mr McCrae) was sentenced in the District Court at Gisborne on 4 April 2012, to a term of 15 months’ imprisonment plus an indefinite disqualification from driving on one conviction of driving with excess breath alcohol (being his third or subsequent conviction for that offence), and one conviction for driving whilst disqualified. He wishes to argue that the sentence was manifestly excessive, and that the Judge ought to have substituted the sentence of imprisonment with one of home detention.

[2] The notice of appeal was filed out of time, and leave is accordingly required to proceed with it. Although Ms Nicoloso also appeared for him on sentencing, there was apparently no on-going retainer and Mr McCrae has had difficulty instructing her on an appeal. He initially made attempts to file an appeal on his own behalf.

[3] The Police did not oppose the grant of leave and I accordingly grant leave to have the appeal argued.

MCCRAE v NEW ZEALAND POLICE HC GIS CRI 2012-416-000009 [10 August 2012]

[4] The relevant offending occurred at about 6am on 13 November 2011, when Mr McCrae was stopped by the Police because of a concern that the vehicle he was driving had been reported stolen in Gisborne the night before. Mr McIlroy, who spoke to the submissions filed on behalf of Mr McCrae, explained that the vehicle belonged to Mr McCrae’s girlfriend and that an aspect of the domestic dispute that had occurred between them the previous evening and on the morning of his being apprehended was her reporting the vehicle as stolen. Apparently the complaint was dropped, and that context for his being stopped has no further relevance.

[5] When breathalysed, Mr McCrae provided a reading of 196 milligrams of alcohol, being twice the legal limit of 80 milligrams. He was, at the time, a disqualified driver. He told the Police that he had not intended to drive that morning, but had to remove himself from the domestic dispute before it escalated.

[6] This was Mr McCrae’s sixth conviction for driving with an excess blood or breath alcohol level, the last being in November 2010 for which he was sentenced to five months’ imprisonment and disqualified from driving for 18 months. The previous four convictions were entered between January 2006 and September 2008. The first two of these convictions were when he was under 20, but one of those involved his exceeding the level permitted for an adult driver.

[7] The sentencing Judge did not acknowledge any distinction between the forms of the previous convictions. I raised with counsel whether that amounted to an error. Mr Clarke submitted that had there been only three previous convictions, then it would have been a mistake to include a conviction for breach of the lower limit applying to drivers under 20 years of age as one of the qualifying convictions. However, on the basis of Mr McCrae’s record, there are in any event more than three previous “adult” convictions, so that s 56(4) of the Land Transport Act 1998 applies. Mr Clarke submitted that once there are sufficient qualifying convictions, it cannot be an error for the Judge to have regard to the totality of this type of offending, as a relevant consideration in assessing the relative seriousness of the present conviction. I accept that approach.

[8] On sentencing, Judge R Wade considered it impossible to accede to the plea for a sentence of home detention because a community-based sentence would involve the sentencing process “going backwards” in light of the sentence of imprisonment imposed for the last excess breath alcohol conviction in November

2010. The Judge was further deflected from a community-based sentence by Mr McCrae’s poor record of breaching community work orders, for which he has “no fewer than four convictions”. The Judge formed the view that Mr McCrae was:[1]

... simply someone who cannot be relied on to do anything in the community. All you do is go out and commit further offences.

[9] The Judge was reinforced in this view by observations in the pre-sentence report to the effect that rehabilitative components of previous sentences appear to have failed to make any impact on Mr McCrae’s offending behaviour, and that any referral to counselling may prove to be a waste of community resources.

[10] The Judge said that he had had regard to the principles in Clotworthy v Police.[2] The Judge took into account the “very high level” of the alcohol reading and the aggravating factor that Mr McCrae had been driving whilst disqualified, to settle on a starting point of 20 months’ imprisonment. Then, entirely conventionally, the Judge gave a 25 per cent reduction for the early guilty plea.

[11] The submission that the sentence was manifestly excessive rested primarily on the argument that the sentencing Judge had adopted far too high a starting point, relative to the schedule of comparable sentences in Clotworthy, and by reference to the maximum sentence of two years’ imprisonment. Simplistically, it could be argued that a starting point of 20 months out of the 24 months available as a maximum would require this offending to be in the top 17 or so per cent most serious offending of third or subsequent excess breath alcohol convictions. When this case is compared to the many more serious cases coming before the courts, the attribution

_{of that relative level of seriousness is clearly overstated.}

[12] Comparing the starting point of 20 months here with the survey of High Court appeals set out in Clotworthy,[3] the highest there was the sentence (reduced on appeal) of 15 months’ imprisonment for a sixth conviction for excess breath alcohol where the level was more than two and a half times the limit. That case was described as not being within the most serious cases, but near to it. The next group of those surveyed, ranked in descending order of the length of prison

sentences imposed, involved sentences upheld or adjusted on appeal from 12 down to seven months. They were cases of fifth to eighth excess breath alcohol convictions, generally with high recorded levels or other aggravating features. As a group, they are relatively comparable to the present.

[13] Mr Clarke did not cite any High Court decisions inconsistent with those surveyed in Clotworthy, that might support a starting point as high as 20 months, for offending having the characteristics present here. What he did seek to emphasise

_{was the combination of aggravating features in Mr McCrae’s case, namely:}

there was a relatively constant pattern of such offending by a relatively young

_man;

the pattern was worsening in terms of increasing levels of alcohol revealed;

_and

Mr McCrae was driving heavily intoxicated when still disqualified after

_{serving a term of imprisonment for the same form of conviction.}

[14] Mr Clarke also invited me to acknowledge that the sentencing Judge might well have been reflecting a local concern for enhanced deterrence when the Gisborne region has suffered a tragically large number of fatal accidents where Mr McCrae conforms closely to the typical profile of those involved in the fatalities. However, a perceived regional need for additional deterrence should not deflect the Court from the task of seeking a measure of consistency between sentences, so I do not accept

_{that this point can have particular relevance here. Such a concern may justify a level}

of sentence that, on comparative terms, is stern, but it cannot save a sentence that is manifestly excessive.

[15] The other indicators of relative seriousness raised by Mr Clarke are indeed valid. He submitted that the end sentence was stern, but not manifestly excessive. Those factors add to the number of convictions, and what I treat as moderate to high (rather than high) level of reading, in taking this offending above the mid point on any continuum of relative seriousness.

[16] Were this solely a further excess breath alcohol conviction, I would be inclined to nominate a starting point of around 14 months. The additional conviction for driving whilst disqualified, which is routinely an additional element with repeat drunk drivers, would justify an additional two months or so to reflect the totality of the offending. Accordingly, I consider a starting point of 16 months would be appropriate for concurrent sentences on these convictions. Applying a 25 per cent discount for early guilty pleas would reduce the sentence to one of 12 months’

imprisonment.[4]

[17] On the second aspect of Mr McCrae’s appeal, seeking substitution of the prison sentence with a term of home detention, both the written and oral submissions proceeded as if the appeal constituted a re-sentencing exercise. I was, in effect, invited to re-evaluate the considerations relevant to that exercise in Mr McCrae’s case and, assuming I was persuaded that home detention was appropriate, to substitute such a sentence.

[18] As emphasised in the submissions for the Police, that is not an available approach where the appeal is one from the exercise of a discretion. The onus is on an appellant to establish that the sentencing Judge acted on a wrong principle, took into account an irrelevant consideration, failed to take into account a relevant

_{consideration, or was plainly wrong in law.}[5]

[19] I have assessed the sentencing Judge’s approach to home detention in light of my finding that the length of prison sentence decided upon by him was manifestly excessive. Notwithstanding that change in circumstances, I am not persuaded that the considerations he had regard to either contained irrelevant factors, or that he omitted any further relevant ones.

[20] An important aspect of the challenge to the Judge’s approach was the argument that he had been unduly and unjustifiably negative about Mr McCrae’s prospects of rehabilitation, and that the Judge was wrong to reject submissions relating to Mr McCrae’s new-found maturity, his commitment to address his drinking problems and, as a consequence, the appropriateness of a sentence of home detention.

[21] The same themes had been urged on the sentencing Judge, and were firmly rejected. On argument of the appeal, Mr Clarke confined himself to the somewhat cynical rejoinder that claims of new-found maturity and commitment to rehabilitative measures arise in a surprisingly large proportion of cases where convicted persons are confronting a sentence of imprisonment.

[22] On all I have read and heard, I would not adopt so bleak a view of the prospects of rehabilitation as the sentencing Judge did. Notwithstanding that, a healthy measure of scepticism at the claims of new-found maturity are justified.

[23] There is no case for treating this aspect of the sentencing as having misfired. Declining the apparently forceful submissions in favour of home detention was well within the options open to the Judge and I am not persuaded that he was plainly wrong. Accordingly, that aspect of the appeal must be dismissed.

[24] In substituting the shorter sentence of 12 months’ imprisonment, I observe that Mr McCrae need only hold to his resolve to pursue courses to help him with his drinking problem for a shorter period than he will have been contemplating until the determination of the appeal. It is to be hoped that the expressions of support for him from his father and his employer will enure until he has completed the present sentence, and that he will then take steps to avoid any repetition.

[25] Accordingly, the appeal is allowed to the extent of reducing the term of imprisonment from 15 to 12 months. The order for disqualification of licence remains unchanged.

Dobson J

Solicitors:

Woodward Chrisp, Gisborne for appellant

Crown Solicitor, Gisborne for respondent

---

[1] _{Police v McCrae DC Gisborne CRI 2011-016-3024, 4 April 2012 at [3].}
[2] Clotworthy v Police (2003) 20 CRNZ 439 (HC).

[3] At [17].

[4] _{Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.}

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