Nathan v Police [2014] NZHC 3288 (17 December 2014)

Last Updated: 23 December 2014

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2014-409-000123 [2014] NZHC 3288

BETWEEN	LEONARD TAUROA NATHAN Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	17 December 2014
Appearances:	R G Glover for Appellant K B Bell for Respondent
Judgment:	17 December 2014

_{ORAL JUDGMENT OF GENDALL J}

[1] On Friday 8 August 2014 Mr Leonard Nathan pulled into the forecourt of the BP service station in Riccarton where a police patrol vehicle was present at the time. After speaking to the police and acknowledging that he had been drinking, Mr Nathan subsequently underwent an evidential blood test, which yielded a result

of 116 milligrams of alcohol per 100 millilitres of blood.¹ By way of explanation,

Mr Nathan said simply that he was giving his friend a ride home.

[2] After pleading guilty, Mr Nathan came before Judge Garland in the District Court for sentencing on 31 October 2014.² A starting point of 12 months was adopted, uplifted by six months for past offending and the fact that this offence occurred whilst on bail. A full discount of four and a half months was then permitted for his guilty plea, resulting in an end sentence of 13.5 months imprisonment. In addition, Mr Nathan was disqualified from holding or obtaining a driver’s licence for

_{one year, one month (commencing 22 September 2015) along with:}

¹ _{An offence against the Land Transport Act 1998, s 56(2) and (4).}

² _{Police v Nathan DC Christchurch CRI-2014-009-8572, 31 October 2014.}

NATHAN v NEW ZEALAND POLICE [2014] NZHC 3288 [17 December 2014]

(a) an order authorising Mr Nathan at the end of his disqualification period to apply for a zero alcohol licence;

(b) the imposition of standard release conditions until six months after his sentence end date;

(c) an order for confiscation of Mr Nathan’s vehicle (a 1996 Toyota with registration AUR198); and

(d) an order for reparation in the total sum of $230.56 for analyst and medical fees.

[3] Mr Nathan now appeals this sentence on the basis that the sentence imposed was manifestly excessive and that he should have been sentenced by the same Judge who sentenced him on 22 August 2014 for a drink driving offence that he committed on 5 February 2014.

Jurisdiction

[4] Mr Nathan is able to appeal the sentence imposed as of right.³ This Court, as first appeal Court,⁴ will only disturb the sentence appealed from if the appellant can establish that there was an error in the sentence and that a different sentence should be imposed.⁵ In a recent judgment the Court of Appeal has confirmed that the sentence appeal regime in the Criminal Procedure Act 2011 was not intended to signify departure from the position under the predecessor regimes in the Crimes Act

_{1961, s 385(3) and the Summary Proceedings Act 1957, s 121(3).}⁶

Material before the Court

[5] The Department of Corrections provided an advice report which was before the District Court. It recorded that Mr Nathan is a serving prisoner, who received a

_{six month term of imprisonment on 22 August 2014 and that the current offending}

³ _{Criminal Procedure Act 2011, s 244.}

⁴ _{Section 247.}

⁵ _{Section 250.}

⁶ Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.

occurred whilst he was on bail in respect of that offending. Mr Nathan was upset that both 2014 drink-driving offences were not dealt with together, as I understand the position, because he felt that this would have resulted in a more mild punishment. That aside, he acknowledges that his unhealthy consumption of alcohol is at the root of these matters.

[6] The report discloses that “Mr Nathan’s early history is characterised by a chaotic, maladaptive family environment in which abuse was accepted and condoned.” He led a transient lifestyle, leading to eventual gang involvement. He is not currently in a relationship, but has eight children and an unspecified number of grandchildren, and does not like the impact of imprisonment upon their image. His concern for them came across as genuine.

[7] Mr Nathan has worked in the demolition industry. However, because of the conviction he will need to be a labourer rather than a machine operator due to licence restrictions. He was evicted from Wigram Lodge due to multiple rule breaches, though claims he will have no issues with locating residence upon release. There is no dispute that alcohol underlies Mr Nathan’s offending, though he has expressly disavowed attendance at any rehabilitative programmes whilst in prison.

Judge Garland’s reasoning

[8] Turning now to Judge Garland’s reasoning in the District Court I set out relevant portions of the sentencing process followed by Judge Garland as follows:⁷

[3] The probation officer tells me you are now 52 years of age. You are a serving prisoner. You received a six month term of imprisonment on

22 August last following conviction on your previous drink-drive charge. While you were on bail and on remand for that charge you have offended in

the same manner.

[4] Mr Glover tells me that both matters should have been before the sentencing Judge on the last occasion and he opines that you might have received only a concurrent sentence or if any increase it would only be slightly more than the six month sentence you previously received from Judge Smith.

_...

⁷ Police v Nathan, above n 2.

[9] Then at para [7] Judge Garland goes on:

[7] It is noted in the report that it is your ninth conviction for driving with excess breath alcohol. You have 13 convictions for driving whilst disqualified and seven convictions for breaching community-based sentences. You have a total of 84 convictions spanning 32 years and based on that past history the probation officer suggests your risk of re-offending and causing harm to others is high. As I said the recommendation is for a cumulative term of imprisonment.

[8] I enquired as to whether or not you told Judge Smith when you were sentenced on 22 August last that you had this other charge which was pending. Because blood was taken it had to be sent away for analysis before the police could know for sure that your blood alcohol content exceeded the permissible level and therefore that it amounted to an offence.

[9] I am told that the analyst’s report is dated 13 August. The summons was prepared for you on 21 August. You were then in custody and the sentencing took place on 22 August. I am sure that if you had, through your counsel told the Judge that there was this other charge pending at the time of sentencing, the Judge would have deferred sentencing on the first charge. It seems to me as a matter of inference that the Judge was not told and as a consequence you were sentenced on the basis of only one charge. It may well be that you thought that that might bring about a better outcome for you on the day, but I cannot be sure about that.

[10] However now you appear before the Court on this second charge. This offence which was committed while you were on bail pending sentencing on the first charge. Clearly that is a serious aggravating factor.

[11] It is a separate and discrete offence and therefore a cumulative sentencing is appropriate bearing in mind of course the totality principle. In sentencing you I bear in mind the purposes and principles of sentencing set out in ss 7 and 8 Sentencing Act 2002. The maximum penalty for this offence is two years’ imprisonment. The blood alcohol reading was 116 milligrams which is a moderate level. The time which elapsed since your last conviction obviously is very short. This offence, as I said, occurred while you were on bail awaiting sentence on your last drink-drive offence. There is a gap of six months between the last two offences.

[12] This is now your tenth conviction for drink-driving. Your previous convictions were entered in 1985, two in 1988, 1989, 1991, 1998, 2001,

2006 and your last in 2014. There are no additional aggravating features in relation to your driving. You were not a forbidden or disqualified driver at

the time. You have entered an early guilty plea to the charge.

[13] In the past I see you have been sentenced to community-based sentences as well as six terms of imprisonment. You have a very long list of previous convictions for dishonesty, violence, drugs, driving and breach of Court orders and sentences. I do not detect any true remorse evident for your offending. There are no mitigating personal or family circumstances that have contributed to this offence.

[14] On the last occasion I note from the sentencing notes of Judge Smith that she gave you a substantial discount in arriving at a starting point for sentencing purposes because of the eight year gap in your offending that existed at that time. The same cannot be said on this occasion.

[15] Having regard to the factors relating to your offending I adopt a starting point of 12 months’ imprisonment. I uplift that by six months on account of your past history and on account of the fact that you have re- offended while on bail. I then allow a reduction of four and a half months on account of your guilty plea. That gives the following result. On this charge you are sentenced to imprisonment for 13 and a half months. You are disqualified from holding or obtaining a driver’s licence for a period of one year plus one month. That starts from 22 September 2015.

[10] Judge Garland then dealt with the remainder of the orders which I have mentioned above.

Discussion

[11] Mr Nathan faces three hurdles in seeking a reduction in the sentence imposed. First, that this offending occurred whilst on bail. Secondly, Mr Nathan has multiple previous convictions for drink driving offences. And thirdly, related to the second factor, and unlike the position when sentenced by Judge Smith, is that there is no longer any substantial temporal separation between his drink driving offending.

[12] Mr Glover initially advanced this appeal on the basis that the sentence imposed by Judge Garland was cumulative on the six months imposed by Judge Smith on the earlier charge. Initially he claimed that the cumulative sentence was some 19.5 months, much more than would be the case had Judge Smith sentenced Mr Nathan on both charges. But before me Mr Glover now accepts this as

16 months. As it transpires, there is no indication that the sentence imposed was cumulative, which means that it is to be treated as running concurrently,⁸ from the date on which the sentence was imposed.⁹ The question is therefore whether this sentence is manifestly excessive.

[13] Mr Glover, as I have noted, acknowledges now the combined effect of the sentences results in a sentence of some 16 months. This is in accordance with

⁸ See Harvey v General Manager of Rimutaka Prison HC Wellington CRI-2009-485-1748,

_{7 September 2009 at [10].}

⁹ Parole Act 2002, s 76(1).

submissions made to me by Ms Bell for the Crown who accurately describes the combined effect of both sentences as being “just shy of 16 months imprisonment”. This is due to the release date for a short term of imprisonment as being one half of the sentence imposed.¹⁰

[14] In these circumstances Mr Glover has not taken me to a point where I am able to say that the sentence imposed by Judge Garland was manifestly excessive. That is what this appeal is about. It is not about Judge Smith’s sentencing process, though I acknowledge that sentence, and the events leading to it, are relevant factors. While the uplift for previous convictions and the fact that the offending occurred whilst on bail, was at the upper end of the available range, particularly given the nature of the charge as being third or subsequent, and therefore including multiple previous offences, the sheer number of previous convictions for the same offending, albeit spread over a significant period, means the sentence, in my view, was in an acceptable range.

[15] I note a range of relevant matters here. First, the February offence involved driving while nearly two and a half times over the limit; secondly, that the second offence followed six months thereafter; thirdly, that the offending occurred whilst on bail; fourthly, Mr Nathan has a substantial history for similar offending, along with many other offences of various species; and finally, that the justification for offending on this occasion was no more than expedition and convenience. These factors, coupled with the assistance I have gleaned from the decision in Clotworthy v

Police,¹¹ have crystallised my view that a total sentence of 16 months for the two

offences is not manifestly excessive, though it could be correctly categorised as stern.

[16] Having reached this conclusion, there is nothing in the point that Judge Smith should have sentenced Mr Nathan on both charges.

¹⁰ _{Section 86(1).}

¹¹ Clotworthy v Police (2003) 20 CRNZ 439 (HC). I also gained assistance from Hampton v

Police [2014] NZHC 2423; Emery v Police [2014] NZHC 950; Thwaites v Police [2014] NZHC

642; and Dobbs v Police [2013] NZHC 3397.

Result

[17] For all these reasons the appeal is accordingly dismissed.

...................................................

Gendall J

Solicitors:

Rupert Glover Barrister, Christchurch

Raymond Donnelly & Co, Christchurch