Hart v Police [2014] NZHC 429 (11 March 2014)

Last Updated: 17 March 2014

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2014-485-000007 [2014] NZHC 429

BETWEEN BRIAN MITCHELL HART Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 11 March 2014

Counsel: S J Fraser for Appellant

M J Ferrier for Respondent

Judgment: 11 March 2014

_{JUDGMENT OF COLLINS J}

Introduction

[1] The question I have to consider is whether, when imposing a total sentence of

12 months’ imprisonment on Mr Hart, Judge Bergseng made an error, and if so,

whether a different sentence should be imposed.¹

[2] This question arises because Mr Hart appeals concurrent sentences imposed on him by Judge Bergseng in the Wellington District Court on 14 February 2014. The sentences were imposed after Mr Hart pleaded guilty to two charges. Mr Hart was sentenced to:

(1) Twelve months’ imprisonment for refusing a police officer’s request

_{for a blood specimen on a third or subsequent occasion.}²

¹ _{Criminal Procedure Act 2011, s 250(2)(a) and (b).}

² _{Land Transport Act 1998, s 60(1)(a) and (3)(a). Maximum penalty is two years’ imprisonment.}

HART v NEW ZEALAND POLICE [2014] NZHC 429 [11 March 2014]

(2) Twelve months’ imprisonment for driving with excess breath alcohol

on a third or subsequent occasion.³

These sentences were imposed concurrently.

Background

Refusing a blood specimen

[3] At about 4.00 pm on 20 July 2013 Mr Hart drove his Toyota van into the grounds of the Salvation Army Bridge Programme. He was told to leave. Mr Hart backed his vehicle out of the premises and in doing so almost hit a building. He then drove down Owen Street and almost hit a parked vehicle. He then parked his van in Manchester Street. The police located Mr Hart a short time later and requested that he undergo a breath screening test. Mr Hart refused this request and a subsequent request to allow a blood specimen to be taken.

Driving with excess blood alcohol

[4] On 25 September 2013 police were alerted by members of the public about the way Mr Hart was driving his Toyota van in the Waikato region. Two hours later he was stopped by the police in Raglan. A breath alcohol test revealed a reading of

561 milligrams of alcohol per litre of breath.

[5] Mr Hart has 18 convictions for driving with excess breath alcohol and three previous convictions for refusing to allow a blood sample to be taken. In addition, Mr Hart has many other criminal convictions, including multiple convictions for serious driving offences. He has been convicted 11 times for driving while disqualified.

Judge Bergseng’s decision

[6] Judge Bergseng said he may have been inclined to impose a sentence that

was designed towards Mr Hart’s rehabilitative needs if Mr Hart had shown a

_{willingness to address his obvious problems with alcohol.}

³ Section 56(1) and (4)(a). Maximum penalty is two years’ imprisonment.

[7] Judge Bergseng adopted a starting point of 14 months’ imprisonment for both offences but increased the sentence for the offending on 25 September 2013 by a further two months to reflect the fact that offending occurred when Mr Hart was on bail.

[8] Judge Bergseng deducted four months (25 per cent) from the 16 months’ prison sentence that would otherwise have been imposed. This deduction reflected Mr Hart’s guilty pleas.

[9] In reaching the end sentences of 12 months’ imprisonment with the sentences to be served concurrently, Judge Bergseng identified the importance of holding Mr Hart accountable, denouncing his conduct, deterring him from similar offending and protecting the community. Judge Bergseng also stressed the importance of imposing the least restrictive sentence that could be imposed in the circumstances.

Grounds of appeal

[10] Mr Hart’s appeal is based on the following contentions:

(1) That the sentences imposed were excessive.

(2) That Judge Bergseng failed to give proper regard to the attempts Mr Hart has made to “turn his life around”. In particular, prior to sentencing it is said Mr Hart had obtained accommodation in Hastings, found employment in the Hastings area and had gone to medical services in Hastings to organise alcohol treatment.

(3) That a community based sentenced should have been imposed.

[11] Mr Hart has also filed an application for leave to adduce further evidence on appeal. That evidence is a comprehensive report by Mr Brooking, an expert on alcohol addiction. Mr Brooking assessed Mr Hart on 7 March 2014 and advises:

(1) Mr Hart began drinking when he was 16 years old.

(2) Mr Hart is now 58. He has at least 33 prison sentences, many of which appear to be linked to alcohol and drug abuse.

(3) Mr Hart meets the Diagnostic and Statistical Manual of Mental

Disorders (DSM IV) criteria for dependence on alcohol.

(4) Mr Hart participated in a one month treatment and counselling programme in 2004. Mr Brooking considers a one month non- residential programme as “totally inappropriate for someone like Mr Hart”.

(5) “What Mr Hart really needs is a willing Judge and a therapist [to] roll with resistance to work with him to enhance his motivation” to be treated. (emphasis added)

Legal principles governing an appeal

[12] Prior to the commencement of the Criminal Procedure Act 2011, appeals against sentence were governed by s 121 of the Summary Proceedings Act 1957. Section 121(3)(b) of the Summary Proceedings Act 1957 allowed the High Court to quash a sentence imposed by the District Court where it was found that the sentence was:

... one which [was] clearly excessive or inadequate or inappropriate, or if the High Court [was] satisfied that substantial facts relating to the offence or the offender’s character or personal history were not before the court imposing sentence ...

Appeals under s 121(3)(b) of the Summary Proceedings Act 1957 were normally allowed if the High Court was satisfied that the sentence imposed by the District Court was “manifestly excessive”.⁴ While the Court was cautious before interfering with the discretion of the sentencing judge, there was a need to maintain

_{consistency in sentences imposed for similar types of offending.}⁵

⁴ _{R v Brooks [1950] NZLR 658 (CA).}

⁵ Police v Sutherland HC Wellington CRI-2006-435-1, 27 June 2006 at [16]; R v Pawa [1978]

[13] Section 250 of the Criminal Procedure Act 2011 now governs sentence appeals from the District Court to the High Court. Section 250(2) of the Criminal Procedure Act 2011 provides:

(2) The first appeal court must allow the appeal if satisfied that—

(a) for any reason, there is an error in the sentence imposed on conviction; and

(b) a different sentence should be imposed.

[14] Not every error in a sentence will provide the foundations for a successful appeal. The types of error that are contemplated by s 250(2)(a) of the Criminal Procedure Act 2011 include:

(1) errors of law;

(2) failing to take account of or not giving sufficient weight to relevant factors;

(3) taking account of irrelevant factors; and

(4) committing an error of principle, such as adopting a starting point that is disproportionately high.

[15] A different sentence should be imposed when the appellate Judge believes a different type of sentence should be imposed or the length of the sentence should be altered, but not in a way that amounts to a minor adjustment.

[16] In summary, I proceed on the basis that I can only allow Mr Hart’s appeal if I am satisfied that there is an error in the sentence which Judge Bergseng imposed and that a different sentence should be imposed.

_{[17] In undertaking my task, I shall:}

2 NZLR 190 (CA).

(1) Examine the starting point that should have been imposed for

Mr Hart’s offending;

(2) Examine what adjustments could be made to reflect aggravating and mitigating factors relevant to Mr Hart.

(3) Determine what adjustments could be made to reflect the totality of

Mr Hart’s offending.

Starting point

[18] As was explained by Woodhouse J in Tua v Police it is important for a sentencing Judge to adopt a starting point which reflects all aspects of the offending rather than the bare number of previous convictions, which the offender may have for driving offences.⁶ In that case, Mr Tua had multiple previous convictions for driving while disqualified.

[19] I do not think the 14 months’ prison sentence adopted as the starting point by Judge Bergseng is out of proportion to sentences for offending of this type that have been imposed in similar circumstances.⁷

[20] On the contrary, the starting point of 14 months’ imprisonment was closely aligned to previous sentences that have been imposed upon Mr Hart for offending of this kind. On the last occasion that Mr Hart was convicted for refusing a police officer’s request for a blood specimen he was sentenced to 15 months’ imprisonment. That conviction was imposed in the Hastings District Court on 16 October 2002. Since then, Mr Hart has been convicted of driving with excess breath alcohol on three occasions. On each occasion he was sentenced to 12 months’ imprisonment. The last occasion he was sentenced for this type of offending was on 21 October

_{2010. Judge Bergseng adopted a starting point that was entirely appropriate.}

⁶ _{Tua v Police [2013] NZHC 2994 at [16].}

⁷ Himiona v Police [2012] NZHC 1756; Hakiwai v Police [2012] NZHC 2625; Koopu v Police

[2013] NZHC 1356.

Aggravating factors

[21] Judge Bergseng increased Mr Hart’s provisional prison sentence for driving with excess breath alcohol by two months to reflect the fact that this offending occurred while he was on bail.⁸ This was entirely appropriate.

[22] There were no other aggravating factors relied upon by Judge Bergseng.

Mitigating factors

[23] While there was a suggestion that Mr Hart had attempted to “turn his life around” Judge Bergseng was entitled to conclude on the information he was presented with that Mr Hart had not truly displayed a willingness to address his underlying problems in a meaningful way. Mr Hart’s extensive history of serious driving offending whilst under the influence of alcohol painted a very pessimistic picture.

[24] Mr Brooking’s report provides evidence that Mr Hart is willing to address his history of alcohol abuse. Obviously Mr Brooking’s report was not available for Judge Bergseng. I am sympathetic to Mr Brooking’s suggestions. However, while Mr Brooking’s report provides a basis for considering alternative sentences for Mr Hart, ultimately, Mr Brooking’s report does not undermine the force of Judge Bergseng’s reasoning that Mr Hart needed to be sentenced to prison for his offending.

[25] The reduction of Mr Hart’s prison sentence by 25 per cent to reflect his early

guilty pleas was entirely appropriate.

Totality

[26] Judge Bergseng decided to impose concurrent rather than cumulative sentences. It was possible that a cumulative sentence would have been justified

_{because the two offences were unconnected and reflected two quite distinct and}

⁸ Sentencing Act 2002, s 9(1)(c).

separate instances of criminal offending.⁹ However, it would also then have been necessary to assess whether a cumulative sentence of imprisonment would have been “wholly out of proportion to the gravity of [Mr Hart’s] overall offending”.¹⁰

[27] In my assessment, the totality of Mr Hart’s offending, when viewed in

context, was appropriately reflected in the end sentence of 12 months’ imprisonment.

[28] A sentence of 12 months’ imprisonment was appropriate because:

(1) it holds Mr Hart accountable for the harm he has done;¹¹

(2) promotes a sense of responsibility in Mr Hart;¹²

(3) denounces Mr Hart’s conduct;¹³

(4) Deters Mr Hart and others from similar offending;¹⁴

(5) Protects society from Mr Hart;¹⁵ and

(6) it is the sentence that is the least restrictive sentence that could be imposed in the circumstances of this case.¹⁶

[29] Accordingly, I believe the appeal must be dismissed. In reaching this conclusion, however, I strongly urge the authorities to take steps to ensure Mr Hart is afforded the opportunity to receive proper treatment for his alcohol dependency

_{issues while he is in prison along the lines recommended by Mr Brooking.}

⁹ _{Moon v Police HC Whangarei CRI-2010-488-7, 9 July 2010.}

¹⁰ _{Section 85(2).}

¹¹ _{Section 7(1)(a).}

¹² _{Section 7(1)(b).}

¹³ _{Section 7(1)(e).}

¹⁴ _{Section 7(1)(f).}

¹⁵ _{Section 7(1)(g).}

¹⁶ Section 8(g).

Conclusion

[30] Mr Hart’s appeal is dismissed. All sentences and orders made by

_{Judge Bergseng remain in force.}

_{D B Collins J}

Solicitors:

John Dean Law Office, Wellington for Appellant

Crown Solicitor, Wellington for Respondent