Walters v Police [2014] NZHC 2219 (12 September 2014)

Last Updated: 5 December 2014

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2014-409-55 [2014] NZHC 2219

BETWEEN	MICHAEL STEWART KAMURA WALTERS Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	11 September 2014
Appearances:	C Fletcher for Appellant A Williams and C Martin for Respondent
Judgment:	12 September 2014

_{JUDGMENT OF MANDER J}

[1] Mr Walters appeals his sentence of 4 years imprisonment imposed on two charges of driving while disqualified and a charge of driving with excess breath alcohol, in the aggravated form, being third or subsequent offences of their type. Mr Walters pleaded guilty at his first appearance to these charges. It is submitted on behalf of Mr Walters that the sentencing Judge erred in the following ways:

(a) A failure to afford the appellant a full 25% credit for his early guilty pleas.

(b) Insufficient recognition of the mitigating factors relating to the offending.

(c) Insufficient recognition of personal mitigating factors.

(d) The ultimate sentence of 4 years imprisonment breached the totality principle and was manifestly excessive.

WALTERS v NEW ZEALAND POLICE [2014] NZHC 2219 [12 September 2014]

Credit for guilty plea

[2] Judge O'Driscoll took a starting point of 20 months imprisonment for each charge which he reduced by 4 months to acknowledge Mr Walters guilty plea. This equates to a discount of 20%. It is submitted on behalf of Mr Walters that he was entitled to a full 25% discount. Reliance is placed on the Supreme Court decision of Hessell v R.¹

[3] As observed by the Crown, Hessell v R is not authority for an entitlement to a

25% discount for an early guilty plea. It is not in dispute that Mr Walters entered his plea at an early stage in the proceeding and at the earliest opportunity. The fact remains however that the extension of credit for such a plea is a matter for the sentencing Judge in the exercise of the Judge’s evaluation of the full circumstances of the individual case. Judge O'Driscoll observed, while entitled to credit for the plea, Mr Walters really had no defence available to him to these charges, and the sentencing Court was entitled in its examination of all the relevant circumstances to

identify 20% as the extent of the true mitigatory effect of the plea.²

Mitigating factors of the offending

[4] Mr Walters argues that his last drink-drive charge was some seven years ago. He relies upon the Court of Appeal decision of R v Fair,³ where the appellant in that case had 14 previous drink-driving convictions and 12 previous convictions for disqualified driving. His last conviction for drink-driving was seven years previous, which the Court observed was a “far from negligible” break in his offending.⁴ That factor was considered to take the offence out of the most serious category, lying instead “near to the most serious of cases”.⁵ The Court of Appeal considered that a starting point of 20 months imprisonment for each offence was the most that could be justified, and a concurrent sentence of 18 months imprisonment was ultimately

_{imposed for the drink-driving and driving while disqualified charges.}

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

² _{At [72]-[74].}

³ _{R v Fair [2007] NZCA 282.}

⁴ _{At [19].}

⁵ At [19].

[5] On behalf of Mr Walters it is submitted that while it is acknowledged that he has significantly more disqualified driving offences and four more drink-driving convictions than the appellant in Fair, he, like the appellant in that case, had not incurred a drink-driving conviction for some seven years.

[6] The Crown submits that the interval between the last drink-driving conviction and the offending for which he was before the sentencing Court was canvassed before Judge O'Driscoll. An important factor that needs to be taken into account in assessing whether that period of apparent non-offending is truly a matter of mitigation, is the fact that between the appellant’s last drink-drive conviction in 2007 and the more recent offending, the appellant has during that period spent a significant period of time in custody. When considered against that fact, the interval between convictions is, it is submitted, deserving of less weight.

[7] The Court of Appeal in Fair v R observed that the number of convictions needs to be set against the span over which they were incurred and when they occurred within that period. Convictions remote in time of themselves bear little on the culpability of the offender for his or her present offending. These observations made in Fair v R may have had application to Mr Walters’ case but for the fact that in the seven year period relied upon he was sentenced on four separate occasions to a little under a total of 5 years imprisonment. The driving while disqualified offence was committed in December, shortly after Mr Walters release from prison, two months earlier in September 2013. The further driving while disqualified and the driving with excess breath alcohol occurred in early February the following year. In my view therefore the circumstances of the appellant in Fair v R are distinguishable from Mr Walters’ history. Unlike in Fair v R, Mr Walters offending can rightly be classified as within the most serious of cases for which the penalty is prescribed.

[8] A further mitigating factor relied upon is that the drink-driving which resulted in a breath alcohol level of 469 micrograms of alcohol per litre of breath occurred after Mr Walters was using alcohol to manage emotional stress on account of his daughter’s unveiling. He did not attend the unveiling ceremony but is described as having a memorial drink for her at a friend’s place. It is submitted that Mr Walters

was using alcohol to manage emotional stress that he was feeling at that time, and that this factor ought to have been recognised by way of some discount.

[9] Judge O'Driscoll acknowledged this factor as being one of the personal matters which he was asked to take into account. When set against Mr Walters’ denial of an alcohol problem and the clear priority given by the sentencing Judge to the protection of the community from a person who continues to drink and then drive, it is unsurprising that this factor did not carry any weight with the sentencing Judge. I do not accept that in not doing so Judge O'Driscoll erred in his approach.

Mitigating factors of the appellant

[10] Mr Walters submits that greater account should have been taken in mitigation of his remorse and of his changed personal circumstances, in particular his new employment and entry into a positive personal relationship. In that regard, Mr Walters provided a letter of apology to the Court and a letter from his supervisor who attested to his attributes as a worker. Further reference was made to Mr Walters entering into a new relationship with a partner who has been a positive influence on him.

[11] Judge O'Driscoll was entitled to place little, if any, weight on the appellant’s letter. Expressions of remorse after apprehension can be viewed as hollow when set against an offender’s history. As Judge O'Driscoll noted, “actions speak louder than words”, and whatever attributes Mr Walters may have as a worker or what potential he may have to improve his conduct and attitude as a result of a new relationship have to be set against the fact that within six months of being released from prison he has continued to offend, not once, but twice, on two separate occasions. This offending is a continuation of his recidivism for which he was recently released from prison, namely two instances of driving while disqualified and providing the Police with false particulars. That offending follows repeated breaches of release conditions. That these matters put forward in mitigation carried little weight with Judge O'Driscoll is unsurprising.

Totality

[12] Reliance is placed on s 85(2) of the Sentencing Act which requires that where cumulative sentences of imprisonment are imposed, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending. It is not in issue that the sentencing Judge was entitled to impose cumulative sentences for the offending for which Mr Walters was before the Court. Further, it is accepted that cumulative sentences may be imposed for drink-driving

and disqualified driving offences arising from the same incident.⁶ The submission

however made on behalf of Mr Walters is that while he may fall within the category of “most serious” recidivist driving offenders, the total sentence of 4 years imprisonment was a period wholly out of proportion to the gravity of the overall offending and therefore in all the circumstances manifestly excessive.

[13] In response, the Crown submits that Judge O'Driscoll was aware of the issue of totality and directly addressed that consideration in imposing sentence. The appellant’s drink-driving and disqualified driving offence history is emphasised. Those convictions are but a subset of some 160 previous convictions which include breaches of sentences, failing to appear, escaping custody and failing to stop or provide details to enforcement officers. The Crown acknowledges, as indeed did Judge O'Driscoll, that the sentence imposed was stern, but observed that while Mr Walters continues to drink and drive he is a danger on the road.

[14] In sentencing Mr Walters, Judge O’Driscoll observed that the presentence report assessed him as having a high likelihood of reoffending. Mr Walters continual denial in the face of a manifest drinking problem was of concern to the sentencing Judge and strongly indicated that he would continue to put the community at risk. There is no indication that Mr Walters conduct will desist.

[15] Judge O'Driscoll in imposing sentence noted that imprisonment has not deterred Mr Walters in the past and that the prime purpose of the sentencing exercise before him was to protect the community. The Sentencing Act provides that a

_{sentencing Judge must impose the maximum penalty in respect of offending which}

⁶ Hughes v R [2012] NZCA 388.

falls within the most serious of cases,⁷ and that a sentencing Court must impose near to the maximum for offending which is near to the most serious.⁸

[16] I have already concluded that Mr Walters offending does fall within the most serious category. Mr Walters' criticism of the approach taken by Judge O'Driscoll under this heading is not directed at the sentences of 16 months imprisonment which attach to each of the three separate offences, but that the cumulative sentence of 48 months imprisonment was not moderated by the totality principle. In that regard, Judge O'Driscoll expressly examined the 48 month term against the totality principle and whether it represented the least restrictive sentence in the circumstances. In carrying out that exercise, Judge O'Driscoll listed the following considerations which he considered applied to Mr Walters offending and which remain undisputed on appeal:

• Contempt for the rules of the road.

• Contempt for Court orders.

• By drinking - putting innocent road users at risk.

• Appalling record for drinking and driving and driving while disqualified.

• High risk of reoffending.

• The need to protect the community.

[17] Taking those considerations into account, Judge O'Driscoll concluded that, while a stern sentence, it was one that was designed to protect the community, and bring home to Mr Walters that his driving while disqualified and drink-driving simply will not be tolerated any further. In order to achieve those sentencing objectives, Judge O'Driscoll assessed that the 4 year term of imprisonment was the least restrictive sentence and did not breach the totality principle.

[18] The sentence imposed is severe. In the circumstances of this case however, I

_{have not been brought to the position where I can conclude that the sentence was}

⁷ _{Sentencing Act 2002, s 8(c).}

⁸ Section 8(d).

outside the range available to Judge O'Driscoll in the exercise of his sentencing discretion. Judge O'Driscoll made plain the objective of the sentence was to protect the community and to have Mr Walters understand that his conduct is inexcusable and simply will not be tolerated further. On a cumulative approach, the maximum total sentence that was available to the sentencing Judge was one of 6 years. As I have observed, it is understandably not contended for on appeal that the imposition of cumulative sentences for each of the three offences was not a legitimate approach for the sentencing Court to take. It follows therefore that the ultimate sentence imposed was two-thirds of that available to the sentencing Judge.

[19] The overriding factor will always be the principle of totality, but in the extreme circumstances of this offender and his demonstrated unwillingness to arrest his conduct, the Court has been led to impose what might be considered an extreme sentence but one that a sentencing Court may be required to resort to in exceptional circumstances. It therefore follows from my assessment that the sentence is not manifestly excessive. Accordingly, the appeal is dismissed.

Solicitors:

Public Defence Service, Christchurch

Raymond Donnelly, Christchurch