Williamson v Police [2016] NZHC 1243 (9 June 2016)

High Court of New Zealand

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Williamson v Police [2016] NZHC 1243 (9 June 2016)

Last Updated: 14 July 2016

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2016-488-15 [2016] NZHC 1243

BETWEEN	LARS GARRY WILLIAMSON Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	9 June 2016
Counsel:	T K Donald for Appellant J Wall for Respondent
Judgment:	9 June 2016

_{JUDGMENT OF DUFFY J}

Solicitors:

Crown Solicitor, Whangarei

Counsel:

T K Donald, Barrister, Whangarei

WILLIAMSON v NEW ZEALAND POLICE [2016] NZHC 1243 [9 June 2016]

[1] Mr Williamson pleaded guilty to one charge of driving whilst disqualified and one charge of driving with excess breath alcohol (third or subsequent). He appeared for sentencing in the Dargaville District Court on 5 May 2016. Judge Harvey sentenced Mr Williamson to 10 months’ imprisonment on the excess breath alcohol (“EBA”) charge and imposed a cumulative sentence of nine weeks’ imprisonment in relation to the charge of driving whilst disqualified. Mr Williamson was also disqualified from driving for a further two years.

[2] Mr Williamson appeals his sentence on the basis that it was manifestly excessive.

Background

[3] Judge Harvey summarised the offending as follows:

[2] The facts that I sentence you on are that on 26 January at about 2.45 in the afternoon you were observed driving a motor vehicle along Kenny Street in Waihi. You were stopped. You denied recently consuming alcohol but you exhibited signs of recent alcohol intake. You were required to undergo a breath screening test and that resulted in a positive reading. A subsequent evidential breath test yielded 869 micrograms of alcohol per litre of breath. Your explanation was that that reading must be accounted for by the fact that you had been drinking the prior night, although you said that you had “a sleep”.

[4] Mr Williamson has an extensive history of EBA and driving whilst disqualified offending. His history is as follows:

Date	Offence	Penalty
11 April 1998	Excess breath alcohol (400mcg/L)	Disqualified from driving for 4 months; fined $400
16 March 2001	Excess blood alcohol (151mg/L)	Disqualified from driving for 7 months; fined $700
4 October 2002	Excess blood alcohol (102mg/L)	Disqualified from driving for 9 months; fined $1,500
18 October 2007	Excess breath alcohol (848mcg/L)	200 hours’ community work; disqualified from driving for 1 year 1 month

2 February 2008	Driving whilst disqualified	6 months’ supervision; disqualified from driving for 6 months
1 June 2009	Excess blood alcohol (284mg/L)	1 year supervision; 250 hours’ community work; 6 months’ community detention; disqualified from driving indefinitely
14 October 2013	Excess breath alcohol (823mcg/L)	5 months’ home detention; 160 hours’ community work; disqualified from driving indefinitely

[5] Mr Williamson has also committed four other driving offences and has been convicted of breaching court orders relating to various home detention and community based sentences on six occasions.

District Court decision

[6] He appeared in the District Court, having pleaded guilty to the following charges:

Offence	Provision	Maximum penalty
Driving with excess breath alcohol (third or subsequent)	Land Transport Act 1998, ss 56(1) and 56(4)	2 years’ imprisonment $6000 fine
Driving whilst disqualified	Land Transport Act 1998, ss 32(1)(a) and 32(3)	3 months’ imprisonment $4,500 fine

[7] Judge Harvey identified a number of aggravating factors associated with the offending: namely, that the reading itself was high; that it had been only two years since Mr Williamson’s previous conviction; and that Mr Williamson was disqualified at the time. The Judge considered that a starting point of 12 to 14 months’ imprisonment would be appropriate. He gave credit for a guilty plea, resulting in a final sentence of 10 months’ imprisonment on the EBA charge. Although he did not specify the credit, by my calculation it works out at roughly a 25% credit for the guilty plea.

[8] Judge Harvey considered that he should impose a cumulative sentence in respect of the driving whilst disqualified offending. He took a starting point of 12

weeks’ imprisonment, which was reduced to nine weeks’ imprisonment to reflect Mr Williamson’s guilty plea, again making it a 25% discount. Mr Williamson was also disqualified from driving for two years.

Grounds of appeal

[9] Mr Williamson appeals his sentence on the basis that it was manifestly excessive. Specifically, he argues that the aggravating feature of driving whilst disqualified was incorporated into the starting point in respect of the EBA charge and therefore Judge Harvey should have sentenced him on a concurrent, rather than a cumulative basis. Mr Williamson also argues that the starting point adopted by the Judge was too high.

Approach to appeal

[10] In terms of the approach to the appeal, s 250(2) of the Criminal Procedure

Act 2011 states that the 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.

[11] In any other case, the Court must dismiss the appeal.¹

[12] The Court of Appeal in Tutakangahau v R has recently confirmed that s 250(2) was not intended to change the previous approach taken by the courts under the Summary Proceedings Act 1957.² Further, despite s 250 making no express reference to “manifestly excessive”, this principle is “well-engrained” in the court’s approach to sentence appeals.³

[13] The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is

¹ _{Criminal Procedure Act 2011, s 250(3).}

² _{Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]- [27].}

³ At [33], [35].

manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.⁴

Discussion

[14] Mr Williamson argues that Judge Harvey erred in two respects: first, that the learned Judge should have sentenced him to concurrent, rather than cumulative sentences of imprisonment; and secondly, that the starting point which Judge Harvey adopted in respect of the EBA offending was too high.

[15] If I find that, as Mr Williamson suggests, there was an error in the sentence that was imposed upon conviction, then it would be appropriate for me to consider whether a different sentence should have been imposed.

Starting point in respect of EBA offending

[16] A leading decision in relation to EBA sentencing is the judgment of Whata J in Samson v Police.⁵ Drawing on existing case law, particularly the leading case Clotworthy v Police,⁶ Whata J established a framework of assessment for EBA offending. He held:

[15] Unsurprisingly, sentencing for this type of offending is not amenable to tariff-like categorisation. But the resolution of EBA (third and subsequent) appeals has become encumbered by numerous and diverse responses to what, at first gloss, appear to be similar fact offending. In order to make some sense of the jurisprudence, and with the assistance of counsel in this appeal and in Bechan v Police, I have reviewed a number of authorities for the purpose of identifying where the current offending might sit in the spectrum of cases that have come before this Court. As a result, I think some broad generalisations about starting points are supportable, namely:

(a) No seriously or only moderately aggravating factors, 9–12 months;

(b) One or more seriously aggravating factors, 12–18 months;

(c) Multiple offences with seriously aggravating factors, 18–20 months;

⁴ _{Ripia v R [2011] NZCA 101 at [15].}

⁵ _{Samson v Police [2015] NZHC 748.}

⁶ Clotworthy v Police (2003) 20 CRNZ 439 (HC).

(d) Multiple offences and very serious aggravating factors (i.e. offending of the worst kind), 20–24 months.

[16] Seriously aggravating factors that appeared to resonate strongly in the sentencing process included a high level of intoxication, dangerous driving, very close proximity in previous EBA offending, and/or a prolonged and continuous history of driving-related offending. Conversely, the following mitigating factors appeared significant in terms of the length of end sentence and/or the type of sentence (e.g. home detention):

(a) The absence of seriously aggravating factors; (b) High levels of remorse;

(c) Genuine attempts to address the underlying causes of the offending;

(d) No previous sentence of imprisonment;

(e) No previous sentence with a rehabilitative focus; and/or

(f) Lengthy gaps between the current and prior offending.

[17] To be clear, the foregoing summary does not purport to provide tariffs or a complete list of matters to be considered. It is simply the outcome of a canvass of authorities which I have found useful for the purpose of commencing the finer grained assessment required in this appeal. Indeed, the following analysis aptly illustrates the care that must be taken when relying on precedent in this context other than as an initial indicator as to the suitability of sentence.

[17] In the present case, there are two aggravating factors, namely Mr Williamson’s high level of intoxication (being more than three times the legal limit of 250mcg per litre of breath) and his extensive history of driving-related offences. Relevant mitigating factors include Mr Williamson’s remorse, as demonstrated by the letter that was provided to the District Court, as well as the fact that he has not previously been sentenced to a term of imprisonment.

[18] Taking into account all those factors I consider that Judge Harvey was justified in imposing a starting point of 12 months’ imprisonment. Whilst that is not to say that is the starting point I might have chosen if I were sentencing at first instance, sitting in the appellate jurisdiction I have to say that there is no error in relation to this aspect of the sentencing judgment.

Decision to sentence on a cumulative basis

[19] This matter can be disposed of in relatively short order. In Hughes v R, the Court of Appeal considered whether the District Court Judge was wrong to impose cumulative sentences in respect of EBA and driving whilst disqualified offences.⁷

The Court held:

[19] There can be no doubt that the District Court Judge had the jurisdiction to impose cumulative sentences for each of the offences with which the appellant was charged. We do not know whether the usual practice of the District Court is to impose concurrent sentences on drink- driving and driving while disqualified charges arising from the same incident. Whether this is so or not does not affect the jurisdiction of the Court to impose cumulative sentences in such circumstances in any particular case.

[20] The Court of Appeal went on to say:

[22] ... We are satisfied that the two offences involved in this case are different in kind. As the District Court Judge said, the offence of driving with excess breath alcohol is concerned with road safety. While the offence of driving while disqualified also bears upon road safety, it is primarily concerned with the enforcement of court orders. Those who flout the orders of the court challenge the authority of the court and must be dealt with accordingly as part of the administration of justice. In those circumstances, cumulative sentences of imprisonment are generally appropriate in terms of s

84(1) whether or not they relate to a connected series of offences.

[23] It follows that the fact that the two offences faced by the appellant arose from the same driving incident does not preclude the court from imposing cumulative sentences if it is otherwise appropriate to do so.

[21] It follows that Judge Harvey was entitled to impose cumulative sentences in respect of the two offences of driving with EBA and driving whilst disqualified. There is no error in relation to this aspect of the sentencing judgment.

Was the final sentence manifestly excessive?

[22] Notwithstanding my findings above regarding the starting point and cumulative sentences, the final point to consider is whether the total sentence that was imposed in the District Court was manifestly excessive. Section 85 of the

_{Sentencing Act 2002 is relevant in relation to this issue. That section provides:}

⁷ Hughes v R [2012] NZCA 388.

85 Court to consider totality of offending

(1) Subject to this section, if a court is considering imposing sentences of imprisonment for 2 or more offences, the individual sentences must reflect the seriousness of each offence.

(2) If cumulative sentences of imprisonment are imposed, whether individually or in combination with concurrent sentences, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.

(3) If, because of the need to ensure that the total term of cumulative sentences is not disproportionately long, the imposition of cumulative sentences would result in a series of short sentences that individually fail to reflect the seriousness of each offence, then longer concurrent sentences, or a combination of concurrent and cumulative sentences, must be preferred.

(4) If only concurrent sentences are to be imposed,—

(a) the most serious offence must, subject to any maximum penalty provided for that offence, receive the penalty that is appropriate for the totality of the offending; and

(b) each of the lesser offences must receive the penalty appropriate to that offence.

[23] The central principle is that “the total sentence must represent the overall

criminality of the offending and the offender.”⁸

[24] The end sentence in this case was stern, but it was one of approximately one year’s imprisonment. It is not a sentence that I could describe as being manifestly excessive. It is a sentence that is consistent with existing case law regarding EBA and driving whilst disqualified offences.⁹ It necessarily follows that Mr Williamson cannot meet the required test to persuade me that the appeal should be allowed.

Result

[25] The appeal is dismissed.

[26] Now, Mr Williamson I realise you may well find a sentence of imprisonment difficult to serve. It is your first sentence of imprisonment, but I strongly advise you

⁸ _{R v Xie [2006] NZCA 201; [2007] 2 NZLR 240 (CA) at [18].}

⁹ See for example Spooner v Police HC Rotorua CRI-2010-463-55, 31 August 2010; Koopu v

Police [2013] NZHC 1356; Toetoe v Police [2013] NZHC 2686; Clotworthy v Police, above n 6.

to do all you can to get on top of your alcohol problem. The fact that when you were stopped in the middle of the day and you had a reading of 860 mcgs which you say you attribute to drinking the night before, if that was so you must have drunk an incredible amount to still have that level midday the next day. So all I can say to you is that unless you use this experience to get on top of the issues you are likely in the future to be back before the courts getting further sentences of imprisonment. That is inevitable.

Duffy J