Boey v Police [2012] NZHC 2159 (24 August 2012)

Last Updated: 24 September 2012

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2012-409-000030

CRI-2012-409-000043 [2012] NZHC 2159

ANDREA KELLY BOEY

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 23 August 2012

(Heard at Christchurch)

Appearances: A N D Garrett for Appellant

D Orchard for Respondent

Judgment: 24 August 2012

_{JUDGMENT OF WILLIAMS J}

Introduction

[1] On 29 March 2012, Andrea Boey was sentenced in the District Court to a total term of imprisonment of four years, six months. The sentence related to the

_{following charges, Ms Boey pleading guilty to all of them:}

BOEY V NEW ZEALAND POLICE HC CHCH CRI-2012-409-000030 [24 August 2012]

Offence Offence date Section (all Land

Transport Act

₁₉₉₈₎

Max Penalty

1. Driving while disqualified
   
2. Driving with excess breath alcohol
   
3. Driving while disqualified
   
4. Driving with excess blood alcohol causing death (LEAD)

5. Driving with excess breath alcohol (third or subsequent)

16 May 2011 s 32(1)(A) 3 months or

$4,500 fine

and 6 months (min) +

disqualification

26 May 2011 s 56(1) 3 months or

$4,500 fine

and 6 months (min) +

disqualification

26 May 2011 s 32(1)(A) 3 months or

$4,500 fine

and 6 months (min) +

disqualification

3 July 2011 s 61(1)(b) 10 years or

$20,000 fine

and 1 year (min)+

disqualification

13 December 2011 s 56(2) 2 years or

$6,000 fine and

1 year (min) +

_{disqualification}

6. Driving while forbidden/unlicenced

_driver

13 December

2011

s 52(1)(c) $10,000 fine.

[2] The lead offence was excess blood alcohol causing death for which the Judge imposed a sentence of four years, six months. Fourteen months’ imprisonment was imposed for the excess breath alcohol (third or subsequent), two months for the first excess blood alcohol, and two months for driving while disqualified charges. All terms were concurrent. Ms Boey was convicted and discharged on the driving while forbidden count.

The offending

[3] There were three groups of offending – the first in May, the second in July, and the last in December.

[4] On 16 May 2011, Ms Boey was caught driving. She had been disqualified the year before and the disqualification remained in place on that date.

[5] Just ten days later, on 26 May 2011, Ms Boey was again found driving while disqualified. She was breath-tested. Her reading was 490 ml of alcohol per litre of breath – 90 ml over the limit.

[6] She admitted she knew she was disqualified. She said that she was driving because she was the most sober person in the car (there were two passengers).

[7] Ms Boey pleaded guilty to both counts on 29 June 2011 and was remanded on bail for sentencing.

Second group

[8] On 3 July 2011, four days after those guilty pleas, Ms Boey went to the home of her friend and employer, William Hopwood. They drank wine together there. They went out. Ms Boey drove. On the return trip to Mr Hopwood’s address, Ms Boey lost control of the car at a bend. She was driving too fast. She collided with the corner strainer-post of a deer fence. Mr Hopwood was killed. Ms Boey was quite badly injured.

[9] A blood alcohol test was administered. Ms Boey’s reading was 174 mg of alcohol per 100 ml of blood – more than twice the legal limit. The analysis also revealed the presence of methamphetamine.

[10] Ms Boey says she remembers nothing of these events.

[11] Ms Boey was immediately forbidden from driving any vehicle until she was permitted to obtain (and did obtain) a driver’s licence in accordance with s 113(2)(e) of the Land Transport Act 1998.

[12] Five months later, on 13 December 2011, Ms Boey was stopped by Police while driving in Christchurch. She admitted that she had no driver’s licence and had been forbidden from driving. She refused a breath test, electing a blood test. Her reading was 156 ml of alcohol per 100 ml of blood – this time nearly twice the legal limit. Ms Boey told Police she was driving her friends home as they were too intoxicated to drive and she needed to avoid a “potentially dangerous situation”. Ironically, this offending occurred on the very day that Ms Boey intended to appear in Court and plead guilty to the July offending.

Sentencing approach in the District Court

[13] In the sentencing exercise, his Honour Judge Doherty identified the following aggravating features on the lead offence of EBA causing death:

(a) The offence occurred while Ms Boey was on bail; (b) She was twice the legal limit;

(c) There was methamphetamine in her system; (d) The driving was erratic and careless;

(e) Ms Boey drove while disqualified;

(f) She had previous convictions for driving offences.

[14] The Judge adopted a starting point of five years uplifting by a year for relevant previous convictions and offending while on bail. This was then discounted by 25 per cent for guilty plea producing the final sentence on the lead offence of four years, six months.

[15] On the first group of offences (May 2011), the Judge took the view that those offences would not normally have attracted imprisonment in their own right and so imposed short imprisonment terms (two months each) to be served concurrently.

[16] On the third group of offending (December 2011) the Judge identified the following aggravating features:

(a) Ms Boey was nearly twice the legal limit;

(b) She was on bail awaiting sentence on the earlier matters and was intending to plead guilty that afternoon to the EBA causing death charge;

(c) The Judge concluded a starting point of one year would be appropriate with an uplift of six months given the obvious aggravating context. This was also reduced by 25 per cent for early guilty plea leaving a final sentence of 14 months.

[17] While the Judge considered there was a good argument for a cumulative approach to this sentencing, he decided not to adopt that approach in this case. There were two reasons:

(a) The totality principle suggested a total sentence of five years, eight months was too high;

(b) Ms Boey had suffered serious injuries and these should be taken into account.

[18] The third group of offences was therefore sentenced concurrently.

Submissions

[19] Mr Garrett argued that the sentence was excessive. He argued that the starting point was too high – it should have been three-and-a-half to four years rather

than five. He also argued that the uplift was too high – it should have been six months rather than 12.

[20] Mr Garrett focussed on Ms Boey’s injuries. She had fractured her neck vertebrae in the accident as well as her skull. It is understood that the accident had brought on an epilepsy condition and that she had suffered 14 seizures in the last four months. Mr Garrett argued that insufficient account had been taken of the significant reduction in quality of life that Ms Boey now suffered.

[21] Mr Garrett also argued that the uplift for aggravating features went too far. He submitted that, although other aspects of this offending and Ms Boey’s circumstances were aggravating, it could not be said that her driving fault was at the serious end of the scale and an uplift of 12 months required such a finding.

[22] Mr Garrett also handed up a letter from Ms Boey in which she acknowledged her wrong and expressed what appeared to be an earnest desire to make good on that wrong and great sorrow for the loss of her friend and employer.

[23] Mrs Orchard submitted that the statutory maximum penalty for EBA causing death had been doubled in 2011 making all previous authorities on penalty in this offence redundant. Mrs Orchard submitted that an end sentence in the range of three-and-a-half years under the previous penalty regime would have been unexceptionable and that an end sentence of four-and-a-half years in this case must be viewed the same way in light of the doubling of penalty.

[24] Mrs Orchard argued that Judge Doherty did take account of the injuries suffered by Ms Boey. The technique he used, she argued, was to refuse to impose cumulative sentences on the third group of offending. This was effectively a discount of around six months.

My view

[25] I agree with Mrs Orchard.

[26] A review of a number of EBA causing death cases suggests to me that a starting point prior to 2011 of between three and four years was the norm for offending of this nature.[1] The doubling of the maximum penalty from five to ten years in 2011 was clearly a signal from Parliament that the Courts should adopt a sterner approach. Speeches by the Hon Stephen Joyce MP, (the sponsor of the Amendment Bill) and the Hon Jackie Blue MP, member of the Transport and Industrial Relations Select Committee[2] make it clear that the increase was particularly focussed on recidivist drink drivers and at-risk offenders. Ms Boey’s case is the very sort of case this legislation appears to have been aimed at. I note that in other areas where penalties have been increased, the Courts have traditionally taken such increases as an indication to take a sterner approach.[3]

[27] I conclude that a starting point of five years must be seen as well within range after 2011 in cases of this nature.

[28] Similarly, in light of the disturbing context of previous drink drive offending and the fact that Ms Boey was on bail awaiting sentence for driving while disqualified and EBA, a 12 month uplift from that starting point was in range in my view. I do not think a 20 per cent increase could be seen as excessive in these circumstances.

[29] I also agree with Mrs Orchard that the significant injuries Ms Boey suffered were taken proper account of in the Judge’s decision to sentence the third group of offending concurrently. This had the practical effect of giving Ms Boey a discount

_{on what could have been a final sentence of five years on a totality basis.}

_{[30] The appeal is dismissed accordingly.}

Solicitors:

A N D Garrett, 1/167 Deans Avenue, Christchurch

Raymond Donnelly, PO Box 533, Christchurch 8140

J Williams J

---

[1] Te Amo v R [2010] NZCA 307 ; McPike v Police HC Auckland CRI-2010-404-151, 28 June

2010; Barnes v Police HC Timaru CRI-2009-476-000018, 16 October 2009; Tevi v Police

HC Dunedin CRI-2009-412-12, 29 July 2009; Petterson v Police HC Gisborne AP14/04, 14

May 2004; Hitchens v R CA380/03, 25 March 2004; R v Fallowfield CA181/96, 22 August

_1996.

[2] _{666 NZPD 14070, First Reading and 671 NZPD 17794, Second Reading, respectively.}

[3] See, for example, R v A [1994] 2 NZLR 129 (CA) at 131 in respect of sexual violation and

Police v DeWeyer HC Whangarei CRI 2005-488-000020, 22 April 2005 in relation to EBAs.