Emery v Police [2014] NZHC 950 (8 May 2014)

Last Updated: 20 June 2014

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2014-463-000014 [2014] NZHC 950

LEONARD JAMES EMERY Appellant

v

NEW ZEALAND POLICE Respondent

Hearing:	7 May 2014
Appearances:	Tim Barclay for the Appellant Ngaroma Tahana for the Respondent
Judgment:	8 May 2014

_{RESERVED JUDGMENT OF MOORE J}

This judgment was delivered by on 8 May 2014 at 4:00pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

_Date:

EMERY v NEW ZEALAND POLICE [2014] NZHC 950 [8 May 2014]

[1] In the District Court at Rotorua, Mr Emery pleaded guilty to two charges:

(a) driving with excess blood alcohol (“EBA”) (a third or subsequent);

and

(b) driving whilst disqualified (a third or subsequent).

[2] Both charges arose out of the same driving event on 16 December 2013 when the appellant was stopped by the Police for a compulsory breath test. He elected a blood sample to be taken which, on analysis, showed that his blood alcohol level was

231 milligrams of alcohol per 100 millimetres of blood.

[3] On 20 March 2014, the appellant was sentenced to 18 months’ imprisonment on the EBA charge which his Honour took as the lead offence, and eight months’ imprisonment on the driving whilst disqualified charge. Both sentences were ordered to be cumulative with the effect the appellant received an end sentence of 26 months’ imprisonment.

The appeal

[4] Counsel for the appellant responsibly takes no issue with the sentence imposed on the EBA charge, recognising the appellant’s appalling prior convictions for the same offending as well as the very high blood/alcohol reading (on this and other occasions) placed the sentence imposed within the Judge’s sentencing discretion.

[5] Neither does the appellant take issue with the driving while disqualified sentence being made cumulative on the EBA sentence, recognising this approach was properly open to the sentencing Judge following the Court of Appeal’s decision

_{in Hughes v Police.}¹

¹ Hughes v Police [2012] NZCA 388.

[6] Where the appellant submits the sentencing Judge erred was in failing to state how the starting point of 12 months’ imprisonment was arrived at in respect of the driving while disqualified charge. It is also submitted the starting point of 12 months’ imprisonment was disproportionately high when measured against comparable cases and as such amounts to appellate error. The appellant submits the appropriate starting point should have been six months’ imprisonment with an uplift of two months’ imprisonment to reflect the appellant’s previous offending and an early plea discount of two months, leaving a sentence end point of six months’ imprisonment. That sentence, cumulative on the 18 months’ imprisonment on the EBA charge, gives a total sentence end point of two years’ imprisonment.

[7] In other words, the appellant submits that the total term of imprisonment imposed should have been 24 months’ imprisonment rather than the 26 months’ imposed by the Judge.

Legal principles governing the appeal

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

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.

[9] Not every error in a sentence will provide the basis for a successful appeal. The types of error contemplated by s 250(2) include:

(a) errors or law;

(b) failing to take account of or not giving insufficient weight to relevant factors;

(c) taking into account irrelevant factors;

(d) committing an error of principle, such as adopting a starting point which is disproportionately high when measured against other comparable cases.

[10] A different sentence should be substituted when an 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 which amounts to a minor adjustment. If the sentence is within the range that can be properly justified by accepted sentencing principles then the appellant Judge will not intervene. As stated in Knox v Police:²

...an appellate court will only interfere with a sentence if persuaded that the end sentence is manifestly excessive or manifestly inadequate or inappropriate. Whether an end sentence meets one or other of these requirements in a particular case depends on an examination of the sentence actually imposed rather than the precise process by which it is reached.

[11] Thus, Mr Emery’s appeal can be allowed only if I am satisfied there is an error in the sentence which the Judge imposed and that a different sentence should be imposed.

The District Court sentence

EBA charge

[12] Although the sentence imposed in relation to the EBA charge is not under appeal, the circumstances of the offending and the means by which the Judge reached the end sentence are relevant in terms of an assessment of the totality of the offending. I shall thus review how it was that his Honour arrived at an end sentence of two years’ imprisonment.

[13] The sentencing Judge noted that the blood alcohol level was just under three times the legal limit, properly describing the appellant as “grossly intoxicated”. His Honour pointed to the aggravating factor that the appellant had already amassed 13 previous convictions for driving with excess breath alcohol. Although not referred to by the sentencing Judge, the appellant also has a further three convictions for

_{refusing a request to provide a blood sample. His Honour correctly characterised the}

² Knox v Police [2014] NZCA 51 at [16].

appellant as a remorseless, recidivist drink driver. He referred to the principles of sentencing set out in the Sentencing Act 2002 recording that the only principles relevant in the present case were deterrence, denunciation and protection of the public. He then reviewed the relevant case law, citing numerous decisions of the District Court and the High Court noting they all dealt with starting points at around two years’ imprisonment depending on whether there was a related driving while disqualified charge. He commenced with a starting point at the maximum of two years’ imprisonment which he discounted by 25 per cent to reflect the plea of guilty, resulting in an end sentence of two years’ imprisonment.

Did the Judge fail to state how the starting point was arrived at (on the driving while disqualified charge)?

[14] On the driving while disqualified charge, while recognising it was separate, his Honour properly determined it called for the imposition of a cumulative sentence. He set a starting point of 12 months’ imprisonment which he reduced by 33 per cent, presumably in credit for an early guilty plea. This is a very generous discount well

in excess of the 25 per cent prescribed in Hessell v R.³

[15] His Honour expressly referred to the fact that the charge reflects the appellant completely ignores orders of the Court. Earlier in the judgment, his Honour reviewed a broad range of cases in the context of setting the starting point for repeated EBA offending. His Honour concluded that all of the cases referred to dealt with starting points of around two years’ imprisonment or more:

... depending on whether driving while disqualified is relevant as well.⁴

[16] Immediately following that observation, his Honour recorded the appellant was a disqualified driver because he had been disqualified indefinitely with the last indefinite disqualification imposed only on 3 October 2011. It is apparent from those words that the Judge had examined relevant authority and turned his mind to the proximity of the most recent indefinite disqualification. I do not accept that there was no explicable basis for how the starting point of 12 months’ imprisonment was

_{arrived at.}

³ _{Hessell v R [2011] 1 NZLR 607 , [2010] NZSC 135.}

⁴ Tua v Police [2013] NZHC 2994 at [7].

Was the starting point of 12 months’ imprisonment disproportionately high and thus,

either wrong in law or in principle?

[17] In order to assess proportionality, it is necessary to review comparable cases.

[18] In Himiona v Police,⁵ Heath J dismissed an appeal against two years’ imprisonment for driving with EBA and driving while disqualified. The appellant had six previous convictions for EBA and 12 previous convictions for driving while disqualified. For the EBA charge, the sentencing Judge took 20 months as the starting point and reduced it to 15 months on a guilty plea discount. On the driving whilst disqualified charge, the Judge took 12 months as a starting point reducing it to nine months. Heath J saw no reason to disturb the sentence.

[19] In Koopu v Police,⁶ Woodhouse J dismissed an appeal against a sentence of

21 months’ imprisonment for driving with EBA and driving while disqualified. The appellant had seven previous convictions for drink driving and six previous convictions for driving whilst disqualified. The sentencing Judge set a starting point of 16 months’ imprisonment for the EBA charge, reduced to 12 months. On the driving while disqualified conviction, the starting point of 12 months was reduced to nine months. Woodhouse J saw no error of principle in imposing cumulative sentences.

[20] In Iwikau v Police,⁷ Williams J allowed an appeal against a nine month sentence of imprisonment for one charge of driving while disqualified and one charge of failing to stop. It was the appellant’s seventh driving while disqualified conviction. The sentencing Judge adopted a starting point of 10 months’ imprisonment, uplifting this by six months’ for the previous convictions. Deductions were made for the guilty plea and certain personal and mitigating factors. On appeal, Williams J adopted a 10 months’ starting point but noted it was at the top of the allowable range. The nine month end sentence was reduced to seven and a half

_{months’ imprisonment.}

⁵ _{Himiona v Police [2012] NZHC 1756.}

⁶ _{Koopu v Police [2013] NZHC 1356.}

⁷ Iwikau v Police [2013] NZHC 2515.

[21] In the present case, this is the appellant’s eighth conviction for driving while disqualified. On its face, that factor alone may justify setting the starting point at at least 12 months’ imprisonment when compared to the cases referred to above. I note counsel for the appellant’s submission to Woodhouse J’s observations in Tua v Police⁸ that 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 has for driving while disqualified. There is authority that relies on Tua v Police for a lower starting point.⁹ However I consider that Tua v Police is an exceptional case which reflects the specific circumstances of the offending and of the offender which are not present in the current case.

[22] In that context the comments of Williams J in Iwikau deserve consideration:

Mr Iwikau has been convicted of driving whilst disqualified every 12 months or so for the last four years. This is not a case where the offender has relapsed after a long period of non offending. This is a pattern of re- offending that runs like clockwork. In the present case, there were five offences between 1998 and 2002 and three between 1981 and 1983.

[23] Mr Barclay properly emphasised the appellant’s last conviction for driving while disqualified was more than 10 years ago and such a large gap justifies some downward adjustment reducing the starting point to 10 months’ imprisonment. In this case, however, the appellant’s persistent EBA offending clearly demonstrates this is not a case where the offender has made concerted efforts to turn their life around as in Tua.

[24] As a result a 12 month starting point, while stern, was available to the Judge and there was no error of law or principle. Even if I am wrong, it is clear from the cases above that a final sentence of eight months was firmly within the acceptable

_{range and not manifestly excessive.}

⁸ _{Tua v Police [2013] NZHC 2994 at [15].}

⁹ Gunn v Police [2014] NZHC 356 per Collins J.

Result

_{[25] The appeal is dismissed.}

Moore J

Solicitors:

T Barclay, Rotorua

Crown Solicitor, Rotorua