Dick v Police [2014] NZHC 434 (11 March 2014)

Last Updated: 31 March 2014

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2013-419-000065 [2014] NZHC 434

BETWEEN LIONEL WIREMU DICK Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 11 March 2014

Appearances: G Walsh for Appellant

T C Tran for Respondent

Judgment: 11 March 2014

(ORAL) JUDGMENT OF LANG J [on appeal against sentence]

DICK v NEW ZEALAND POLICE [2014] NZHC 434 [11 March 2014]

[1] Mr Dick pleaded guilty in the District Court to charges of driving with excess breath alcohol and driving whilst disqualified. He also pleaded guilty to breaching a sentence of community work, breaching a sentence of supervision and failing to answer his bail.

[2] On 1 November 2013, Judge E M Thomas sentenced Mr Dick to two years five months imprisonment.¹ He also disqualified Mr Dick from holding or obtaining a driver’s licence for a period of four years. Mr Dick appeals against both the sentence that the Judge imposed and the length of the order for disqualification. He argues that both were manifestly excessive.

The facts

[3] The driving charges arose out of an incident when Mr Dick was stopped whilst driving his motor vehicle on 10 February 2013. Breath testing procedures revealed that he had 662 micrograms of alcohol per litre of breath. He was also subject to an order disqualifying him from holding or obtaining a driver’s licence for a period of 12 months from 20 July 2012.

[4] The charge of breaching the sentence of community work was laid after Mr Dick failed to report as directed on no fewer than nine separate occasions after having been sentenced to 40 hours community work on 4 February 2013. The charge of breaching supervision arose after Mr Dick failed to report as directed by his probation officer on 26 March 2013. The charge of failing to answer bail arose after Mr Dick failed to appear in Court in relation to the present driving charges on

21 March 2013. Mr Dick was not arrested until 23 August 2013.

The Judge’s decision

[5] The Judge considered that Mr Dick’s previous convictions significantly aggravated the seriousness of the present offending. He noted that this is Mr Dick’s eighth conviction for driving with excess breath or blood alcohol. The most recent previous conviction was in 2012 when Mr Dick received a community-based

_{sentence that he subsequently breached, leading to two of the present charges. The}

¹ Police v Dick DC Hamilton CRI-2013-019-001613, 1 November 2013.

Judge therefore selected a starting point of two years imprisonment on the charge of driving with excess breath alcohol, being the maximum available. The Judge then noted that this was Mr Dick’s seventh conviction for driving whilst disqualified, the last also having been in 2012. Had Mr Dick been appearing for sentence on that charge on its own, the Judge indicated he would have selected a starting point close to the maximum of two years imprisonment. Applying totality principles, however, the Judge applied an uplift of 12 months imprisonment to reflect the charge of driving whilst disqualified. Given the end starting point of three years imprisonment, the Judge did not apply a further uplift in respect of the remaining charges.

[6] The Judge indicated that he proposed to give Mr Dick the maximum available discount for guilty pleas, namely 25 per cent. On my calculations, that would amount to a reduction of nine months from the three year starting point. Instead, the Judge imposed a sentence of two years imprisonment on the charge of driving with excess breath alcohol, and a cumulative sentence of five months imprisonment on the charge of driving whilst disqualified. The Judge sentenced Mr Dick to concurrent terms of one month imprisonment on each of the remaining charges.

The argument on appeal

[7] Counsel for Mr Dick contends that the Judge was wrong to categorise Mr Dick as falling within the worst category of recidivist offenders. He points out that many of Mr Dick’s previous convictions for driving with excess breath alcohol and driving whilst disqualified are historic, and were committed between 1991 and 1995.

[8] Counsel accepts that the Judge was entitled to treat Mr Dick’s response to the most recent convictions in 2012 as an aggravating factor. Nevertheless, he submits that the charge of driving with excess breath alcohol did not warrant a starting point of greater than 16 to 18 months imprisonment.

[9] Counsel for Mr Dick accepts that there must be an uplift to reflect the fact that Mr Dick was prepared to drive notwithstanding the fact that he was disqualified

from holding or obtaining a driver’s licence. He submits, however, that an uplift of

12 months was manifestly excessive having regard to totality principles.

[10] Finally, he submits that an order further disqualifying Mr Dick from driving for a period of four years was manifestly excessive.

[11] Counsel for the respondent contends that all of the sentences were within the available range, and that no error of sentencing principle has been demonstrated.

Decision

The charge of driving with excess breath alcohol

[12] In determining the issues raised on this appeal, I have been assisted by the approach taken by Brewer J in Toetoe v Police.² In that case, the appellant had received a sentence of 18 months imprisonment after being stopped whilst driving and found to have 692 micrograms of alcohol per litre of breath. The nature of the excess breath alcohol offending is therefore broadly similar as that in the present case.

[13] The sentencing Judge had adopted a starting point of two years imprisonment to reflect the fact that this represented the appellant’s eighth conviction for driving with excess breath alcohol. The end sentence of 18 months imprisonment was reached after applying a discount of 25 per cent to reflect an early guilty plea.

[14] Brewer J came to the conclusion that a starting point of two years imprisonment was manifestly excessive having regard to other cases involving similar offending. These included Koopu v Police,³ in which a 16 month starting point was upheld in respect of the appellant’s eighth conviction for driving with excess breath or blood alcohol. In Kucenko v Police,⁴ a starting point of 20 months imprisonment was upheld in respect of an appellant who had been convicted on nine

_{previous occasions for drink driving offences.}

² _{Toetoe v Police [2013] NZHC 2686.}

³ _{Koopu v v Police [2013] NZHC 1356.}

⁴ Kucenko v Police [2012] NZHC 3398.

[15] Brewer J also noted that the appellant’s record of driving with excess breath alcohol fitted into two phases, with two gaps in which no offending occurred of ten years and nine years respectively. He considered that neither the appellant’s history nor the circumstances of the current offending put the appellant in the most serious category of offenders.

[16] Similar observations can be made in respect of the present case. The circumstances of the present offending are relatively unremarkable. There was no element of danger to the public, other than that inherent in any situation where a person with excess breath or blood alcohol is prepared to drive.

[17] Mr Dick’s criminal history also warrants careful consideration. It shows that he acquired four convictions for driving with excess breath alcohol between 1991 and 1995. There was then a gap until 2001, when he appears to have offended twice on the same day. There was then a further gap of 11 years, until Mr Dick was found driving in 2012 with 976 micrograms of alcohol per litre of breath. The fact that the present offending occurred just 12 months after the offending in 2012 is obviously, however, a matter of concern.

[18] Looking at Mr Dick’s overall history, I consider that the significant gaps that I have identified mean that he is not a person who has offended habitually. Rather, he has offended from time to time with the most serious period of offending occurring between 1991 and 1995. I am therefore driven to the conclusion that he is not a recidivist offender who fits into the category of offenders for whom the maximum penalty should be reserved. I consider that an appropriate starting point on the charge of driving with excess breath alcohol was one of approximately 18 months imprisonment.

[19] In reaching that conclusion, I bear in mind the fact that Mr Dick received a sentence of nine months imprisonment for his offending in 2001, and he then received a sentence of 90 hours community work in 2012. Had the latter sentence not been imposed, it is likely that a sentence of around 12 months imprisonment would have been appropriate. An uplift of 50 per cent for the present offending is

sufficient to mark the short space of time between the previous offending in 2012 and the present offending.

The charge of driving whilst disqualified

[20] There must be an uplift to reflect the fact that this is the seventh occasion on which Mr Dick has driving whilst disqualified. Of those convictions, however, four occurred during the period between 1991 and 1995. There was then a gap until

2003, and then a further gap until 2012 when he drove whilst his licence was suspended. For the same reasons as I have given in relation to the charge of driving excess breath alcohol, I do not consider that Mr Dick’s criminal history marks him out as a recidivist offender for whom the maximum penalty is appropriate. Bearing in mind totality principles, I consider an uplift of six months to reflect the charge of driving whilst disqualified would be appropriate.

The remaining charges

[21] This would leave an end sentence of two years imprisonment before taking into account the remaining charges. I consider that these require a discrete uplift, because each represents a separate instance of Mr Dick deliberately flouting orders imposed by the Court, or requirements made of him by the probation authorities. I consider that the most egregious of these is Mr Dick’s failure to attend community work on nine separate occasions. I consider that this warrants a cumulative sentence of two months imprisonment. I consider that cumulative sentences of one month’s imprisonment each are warranted on the remaining two charges.

End sentence

[22] This means that, after taking into account a discount of 25 per cent to reflect Mr Dick’s guilty pleas, I would be left with an effective end sentence of 18 months imprisonment on the charges of driving whilst disqualified and driving with excess breath alcohol. The remaining charges would produce an end sentence of three months imprisonment. This means that there would be an effective end sentence of one year nine months imprisonment, rather than two years five months imprisonment

as the Judge ultimately imposed. This leads me to conclude that the end sentences that the Judge imposed were manifestly excessive, and should be reduced.

Result

[23] I quash the sentences of imprisonment that the Judge imposed. In their place, I impose a sentence of 18 months imprisonment on the charge of driving with excess breath alcohol. That encompasses Mr Dick’s culpability in respect of that charge, and also the charge of driving whilst disqualified. I impose a concurrent sentence of six months imprisonment on the charge of driving whilst disqualified. I impose a cumulative sentence of two months imprisonment on the charge of breaching the sentence of community work, and a further cumulative sentence of one month’s imprisonment on the charge of breaching bail. I impose a concurrent sentence of one month’s imprisonment on the charge of breaching supervision.

[24] This leads me to the orders disqualifying Mr Dick from driving for a period of four years. The Judge imposed those orders on both the driving charges. The material that counsel have provided is insufficient to enable me to determine whether or not the order that the Judge made is outside the available range. I therefore grant leave to counsel for Mr Dick to file additional submissions within 21 days dealing with this aspect of the appeal. Counsel for the respondent is to provide submissions in response within seven days thereafter. If necessary, I will then determine that

_{issue on the papers.}

Lang J

Solicitors:

Crown Solicitor, Hamilton

Counsel:

G Walsh, Hamilton