May v Police [2012] NZHC 624 (2 April 2012)

High Court of New Zealand

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May v Police [2012] NZHC 624 (2 April 2012)

Last Updated: 12 April 2012

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2011-443-000004 [2012] NZHC 624

BETWEEN DANIEL JASON MAY Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 2 April 2012

Counsel: J C Hannam for Appellant

J M Marinovich for Respondent

Judgment: 2 April 2012

_{ORAL JUDGMENT OF COLLINS J}

Introduction

[1] The appellant appeals the length of the prison sentences imposed by the District Court in New Plymouth on 20 February 2012 in relation to the following offences:

(1) Three charges of driving with excess blood alcohol causing injury on

8 October 2011.

(2) One charge of driving whilst disqualified on a third or more occasion.

This offence also occurred on 8 October 2011.

(3) Driving with excess breath alcohol on a third or more occasion. This offence occurred on 26 November 2011.

(4) Driving while disqualified on a third or more occasion. This offence also occurred on 26 November 2011.

MAY V NEW ZEALAND POLICE HC NWP CRI-2011-443-000004 [2 April 2012]

[2] The appellant was sentenced to a total period of imprisonment of three years and nine months in relation to these offences. The minimum non-parole period of two-thirds of the sentence was imposed on the three charges of driving with excess blood alcohol causing injury. The appellant was disqualified from driving for a total period of three years.

Background

[3] On 8 October 2011 the appellant was driving a BMW north bound on South

Road, Oakura. He had two associates in the car. They had all been drinking.

[4] The appellant was driving at grossly excessive speed. His two passengers observed that the appellant was driving at 160 kmph. They told the appellant to slow down. He did not respond.

[5] At a point near the Oakura Pony Club the vehicle driven by the appellant crashed into the back of a motor vehicle being driven by Mr Poole. As a result of the speed at which the appellant was driving, the BMW moved into the right hand lane and crashed into a second vehicle driven by Mrs Moyle. After that collision, the BMW again collided with the vehicle being driven by Mr Poole.

[6] As a result of this driving the appellant, his co-passengers and Mrs Moyle suffered the following injuries:

(1) One of the appellant’s associates received a large laceration to the top

of his right hand, severing three of his tendons.

(2) The second of the appellant’s associates suffered a badly dislocated shoulder. He required surgery to re-attach the tendons to the bone. He spent several nights in hospital.

(3) Mrs Moyle was very severely injured. She was hospitalised for 10 days, six of which were in the Intensive Care Unit. Mrs Moyle underwent extensive surgery which included the extraction of 1.2

metres of her small intestine. She also received a fractured sternum and soft tissue trauma to her chest.

(4) The appellant also received serious injuries. Those injuries included seven breaks to his right leg and multiple fractures to one of his knees.

[7] The accident caused by the appellant’s driving resulted in all three vehicles

being written off.

[8] A blood specimen taken from the appellant was found to contain 172 milligrams of alcohol per 100 millilitres of blood.

[9] On 26 November 2011 the appellant was driving a Toyota motor vehicle in New Plymouth. A breath test was carried out. That test produced a reading of 724 micrograms of alcohol per litre of breath.

[10] Prior to 8 October 2011 the appellant had amassed a disturbing number of convictions for alcohol-related offending. These offences included:

(1) On 13 June 2006 he was sentenced to 40 hours’ community work and disqualified from driving for six months for driving whilst his licence was suspended or revoked.

(2) On 9 January 2008 he was disqualified from driving for a further six months for driving while his licence was suspended or revoked.

(3) Also on 9 January 2008 (in relation to another incident) he was sentenced to a cumulative period of 100 hours’ community work for having excess breath alcohol while driving.

(4) Also on 9 January 2008 (in relation to a further incident) he was sentenced to 150 hours’ community work, disqualified from driving for one year and given a final warning for driving while disqualified.

(5) On 14 October 2009 he was sentenced to three months’ imprisonment and disqualified from driving for one year one day for refusing to give a blood specimen.

(6) On 14 April 2011 he was sentenced to six months’ imprisonment for driving with excess breath alcohol on a third or more occasion and disqualified from driving indefinitely.

Sentencing notes

[11] The District Court Judge fully explained the appellant’s offending of 8

October and 26 November 2011. He explained the appellant’s personal circumstances. He gave consideration to the impact of the appellant’s offending on others, particularly Mrs Moyle and Mr Poole.

[12] Thereafter the District Court Judge:

(1) determined that his sentencing starting point for the three charges of driving with excess blood alcohol causing injury would be two years’ imprisonment to which he added a further one year’s imprisonment to take account of the appellant’s:

(a) previous relevant offending; and

(b) the totality of offending on 8 October 2011.

(2) determined that a starting point for driving with excess blood alcohol on 26 November 2011 and driving while disqualified on that date would be two years’ imprisonment.

[13] When assessing mitigating factors the District Court Judge determined that only one factor existed in the appellant’s favour, namely the fact that he pleaded guilty at the earliest opportunity. He received a 25 per cent discount to the prison sentence for this.

[14] The sentences imposed by the District Court Judge were described in the following way:[1]

Moving on to deal with the secondary offending, and recognising that this occurs at a time when you were, and must have been, anticipating a Court appearance, and given that this offending was quite separate and distinct, I do, as Mr Marinovich urges me, intend to impose a cumulative sentence. This, after all, was your sixth conviction for driving with excess breath. It is exacerbated by your continued driving while disqualified. I intend there to impose a cumulative sentence of two years and thus with an end sentence start point on both matters of five years.

The end sentence though is three years and nine months. That sentence is made up as follows:

(a) On the excess breath alcohol causing bodily injury, three years’ imprisonment on all three charges. The disqualification period is two years.

(b) On the driving while disqualified, 8 October, 12 months’ imprisonment, concurrent. Disqualification, again, two years. That is all subject, however, to the indefinite disqualification.

(c) Dealing with the matters of 26 November, the excess breath alcohol, nine months, cumulative.

(d) Driving while disqualified, nine months’ imprisonment, concurrent with the nine months’ cumulative so that the end sentence is three years and nine months.

[15] The District Court Judge also imposed a further year’s disqualification for driving for the events of 26 November 2011. The effect of this was that the appellant was disqualified from driving for three years.

[16] The District Court Judge also set a minimum non-parole period of two-thirds of the sentence on the three charges of driving with excess breath alcohol causing injury.

Grounds of appeal

[17] The primary ground of appeal concerns the District Court Judge’s apparent

_{starting point of two years for the offences which occurred on 26 November 2011.}

The appellant explains that if the starting point of those offences was in fact two

years’ imprisonment then that was the maximum allowed by law.

[18] The appellant also points out that whilst the District Court Judge was entitled to impose a cumulative sentence for the offences of 26 November 2011, he needed to have regard to the total effect of the prison sentence imposed. The appellant relies upon the following commentary in Adams on Criminal Law (Sentencing) para SA85.02:

Where cumulative sentences are imposed some may need to be shorter than would otherwise be appropriate for the offence, so as to make the overall sentence length fairly reflect the totality of the offending.

[19] In his submissions, the appellant says:

Principally the complaint in respect of sentencing is in respect of the two years for the secondary offending, being the maximum allowable and in conjunction with there being no allowance for overall totality.

Analysis

[20] I have carefully examined the District Court Judge’s sentencing notes. I think some confusion has occurred when the District Court Judge explained the sentence which he imposed. That confusion was no doubt attributable to the District Court Judge sitting in a very busy Court, dealing with multiple cases and issues. In this Court, the Crown very responsibly acknowledged that the District Court Judge appears to have made an error when calculating the appellant’s prison sentence.

[21] To avoid further confusion I record my approach in the following way:

(1) I agree with the District Court Judge that the overall starting point for the three charges of driving with excess blood alcohol causing injury on 8 October 2011 is three years. This starting point fairly reflects:

(a) the seriousness of the offending on 8 October 2011; and

(b) the appellant’s list of previous convictions which are a

particularly aggravating feature of this case.

(2) I agree with the District Court Judge’s decision to impose a one year

period of imprisonment for driving whilst disqualified on 8 October

2011. That sentence reflects the fact that the appellant has offended in this way on many occasions. That sentence should be a concurrent sentence.

(3) I agree that the appellant is entitled to a discount of 25 per cent for pleading guilty at the first available opportunity.

The result is that in relation to the offending that occurred on 8 October, the

appellant’s sentence is 27 months’ imprisonment.

[22] I also agree that a cumulative sentence needs to be imposed in relation to the offending that took place on 26 November. That was an entirely different bracket of offences, committed with the full knowledge that the appellant was likely to be sent to prison for a substantial period of time in relation to the offending on 8 October.

[23] In my view the starting point for driving with excess breath alcohol on 26

November 2011 was 12 months. That sentence should be treated concurrently with a sentence of 12 months’ imprisonment in relation to the driving while disqualified offence also committed on 26 November 2011. These sentences reflect:

(1) the seriousness of the offending on 26 November 2011; and

(2) the Court’s concern that the appellant is a recidivist offender.

[24] As with the offending on 8 October 2011, the appellant is entitled to a 25 per cent discount for pleading guilty at the earliest opportunity in relation to the offending that occurred on 26 November 2011.

[25] The end result is that the appellant should be sentenced to a total period of imprisonment of three years. In reaching this conclusion I have considered not only each offence individually, but I have also assessed the appellant’s overall culpability. In my view a total sentence of three years’ imprisonment for all matters before the Court is appropriate.

[26] I also support the approach taken by the District Court Judge when he imposed a minimum non-parole period of two-thirds of the sentence imposed in relation to the charges of driving with excess blood alcohol causing injury committed on 8 October 2011.

[27] The total three year period of disqualification imposed by the District Court is also appropriate and upheld.

Conclusion

[28] The appellant’s appeal against the total sentence of three years nine months imposed by the District Court on 20 February 2012 is allowed. That total sentence is replaced with a total sentence of three years’ imprisonment. The disqualification sentences are upheld as is the order imposing a minimum non-parole period of two- thirds of the sentence imposed in relation to the three charges of driving with excess

_{blood alcohol causing injury.}

_{D B Collins J}

Solicitors:

Crown Solicitor, New Plymouth

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[1] R v May DC NWP CRI-2011-043-3607, 20 February 2012 at [26] and [28].