Stott v Police [2018] NZHC 1591 (29 June 2018)

Last Updated: 30 July 2018

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2018-409-31/32 [2018] NZHC 1591

BETWEEN	HAMISH PAUL STOTT Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	22 June 2018
Appearances:	A G James for Applicant S L Dayal for Respondent
Judgment:	29 June 2018

JUDGMENT OF NICHOLAS DAVIDSON J APPEAL AGAINST SENTENCE

Introduction

[1] Mr Stott pleaded guilty to one charge of driving with excess blood alcohol, third or subsequent; two charges of driving while disqualified, third or subsequent; and one charge of being found unlawfully in an enclosed yard.

[2] On 14 March 2018, the District Court Judge sentenced Mr Stott to two years and four months imprisonment. He appeals the length of sentence.

Facts

[3] On 28 June 2017, Mr Stott was disqualified from driving for one year and one day for driving contrary to the terms of a zero alcohol licence. The four charges

STOTT v NEW ZEALAND POLICE [2018] NZHC 1591 [29 June 2018]

relevant to this appeal stem from two separate bouts of offending which followed that disqualification.

[4] On 25 August 2017, Mr Stott was driving his Toyota Corolla with a passenger on Southbridge Leeston Road, Leeston. He lost control, crossing the centre line, going through a fence and rolling the vehicle. The vehicle was badly damaged and Mr Stott suffered serious injuries including a Brown-Sequard spinal injury. The passenger was uninjured. A blood sample showed Mr Stott had 201 milligrams of alcohol per 100 millilitres of blood, four times the legal limit.

[5] This incident resulted in one of the charges of driving while disqualified (third or subsequent), and the charge of driving with excess blood alcohol (third or subsequent).

[6] On 8 March 2018, at about 1.35am, Mr Stott drove to a farm property. The farm manager was alerted via text message that the fuel pump was being used, and he saw Mr Stott’s vehicle drive away at speed. The fuel pump was off the hook. The manager rang the Police who stopped Mr Stott. He was charged with driving while disqualified (third or subsequent), and being found unlawfully in an enclosed yard.

District Court

[7] Mr Stott has an extensive offence history at the age of 22. Many convictions come from the Youth Court, but he has continued to offend as an adult, including six convictions for driving while disqualified and four for drink driving.

[8] The Provision of Advice to Courts (“PAC report”) says Mr Stott is at medium risk of re-offending. He was participating in the Medium Intensity Rehabilitation Programme earlier this year but was exited because he missed several sessions, which may have been attributable to illness. The probation officer recommended another sentence of home detention, to allow Mr Stott to return to employment and undertake rehabilitation programmes. He is undergoing physiotherapy for his injuries.
[9] The Judge rejected Mr Stott’s explanations for both sets of events. He said he had arranged for someone to drive his car home from a funeral, but that person had not shown up. There was no explanation why his car was there in the first place. Regarding the second incident, counsel said that Mr Stott and his father were going to check out a swimming hole and go fishing in the middle of the night. Mr Stott told the Police that he believed he had a current driver’s licence. The Judge thought these explanations were “nonsensical”. The two sets of charges were discrete and he took a cumulative sentencing approach, bearing in mind the totality principle.

[10] The sentencing exercise began with the first charge of driving while disqualified (third or subsequent). His Honour referred to Peterson v Police, which set 10 months imprisonment as a base starting point for third or subsequent offenders.¹ The Judge identified no mitigating factors and set the adjusted starting point at 10 months imprisonment.

[11] For driving with excess blood alcohol (third or subsequent), the Judge considered the leading drink driving cases,² and the factors identified in Clotworthy v Police.³ Mr Stott’s blood alcohol level was four times over the legal limit. This was his fifth such conviction within the last four years. His driving was dangerous, resulting in his serious injuries. He was a disqualified driver at the time and had been before the Court for sentence on his last drink drive offence just months prior. He has a long history of driving related and dishonesty offending. Guilty pleas were entered early, and other sentences imposed on him have not included imprisonment. He accepted his decisions leading to this offending were poor but the Judge did not see any true evidence of remorse. There were no mitigating, personal or family circumstances relevant to his offending. Taking all this into account, the Judge set an adjusted starting point of 14 months imprisonment.

[12] For the first set of charges the Judge therefore set an adjusted starting point of 24 months imprisonment for the disqualified driving and excess blood alcohol. A full

¹ Peterson v Police [2009] BCL 223 (HC).

² Clotworthy v Police (2003) 20 CRNZ 439 (HC); R v McQuillan [2004] BCL 808 (CA); R v Stoves

CA264/06, 7 November 2006.

³ At [20].

discount for early guilty pleas meant a sentence of 18 months imprisonment on these charges.

[13] On the second set of charges, the Judge brought to account that this offending occurred while Mr Stott was on bail for the earlier charges, and in breach of a curfew. For the charge of driving while disqualified (third or subsequent), the Judge imposed an adjusted starting point of 12 months imprisonment. This was reduced by three months for Mr Stott’s early guilty plea, a final sentence of nine months imprisonment. For the charge of unlawfully being found in an enclosed yard, the Judge uplifted the sentence by one month.

[14] The final sentence imposed on all four charges was thus two years and four months imprisonment (18 months for the first incident, 10 months for the second), and the Judge did not therefore consider home detention. Mr Stott was disqualified from holding or obtaining a driver’s licence for 18 months, ordered to attend an assessment centre, and to pay the analyst’s fee of $109.25. There was an order for confiscation of his car.

Principles on appeal

[15] Appeals against sentence are brought as of right by s 244 of the Criminal Procedure Act 2011, and determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.⁴ The Court of Appeal in Tutakangahau v R said that “an appellate court will not intervene where the sentence is within the range that can be properly be justified by accepted sentencing principles”.⁵ It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.⁶

⁴ Criminal Procedure Act 2011, ss 250(2) and 250(3).

⁵ Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

⁶ Ripia v R [2011] NZCA 101 at [15].

Submissions

Appellant’s submissions

[16] Counsel for the appellant, Mr James, submits that the end sentence of two years and four months imprisonment is manifestly excessive as:

(a) the starting points adopted were too high;

(b) the Court did not adequately consider the totality principle;

(c) nor adequately consider Mr Stott’s youth;

(d) nor adequately consider hardship resulting from his injuries; and

(e) nor adequately consider that this is Mr Stott’s first sentence of imprisonment.

[17] Aside from driving while disqualified and breaching community work orders when he was 17 years old, Mr Stott is submitted to have complied with Court orders. The Medium Intensity Rehabilitation Programme, in which he was participating and which he clearly needs, came to an end when he missed some sessions, possibly due to his medical appointments.

[18] Mr Stott told his counsel that before being taken into custody, he had been seeing a physiotherapist, three times per week and intended to increase that to five sessions. He says that there has been no rehabilitation provided in prison, despite his request for such. Mr James submits that imprisonment has interrupted Mr Stott’s rehabilitation and this factor is relevant to the appeal.

[19] Mr James points out that Mr Stott’s four convictions for driving while disqualified all occurred within a six week period in 2014. His Youth Court offending of the same nature occurred in 2010. In Bechan v Police, a starting point of 18 months imprisonment was replaced on appeal by 14 to 16 months for a fifth driving with
excess breath alcohol offence within four and a half years.⁷ Whata J held that more weight should have been given to the fact that it was the defendant’s first sentence of imprisonment. Escalation in sentence should be proportionate to the escalation in the offending.⁸

[20] In Samson v Police, the defendant committed his fifth drink driving and seventh driving while disqualified offence.⁹ A 20 month starting point for the excess breath alcohol offending was replaced on appeal by 12 to 18 months. An 18 month starting point for driving while disqualified was replaced with 12 months. The High Court accepted that the sentence should be cumulative and applying the totality principle, the overall starting point was set at 20 months.

[21] In Tawa v Police, the defendant faced one charge of driving with excess blood alcohol, his fourth such conviction; two charges of driving while disqualified, being his sixth and seventh such convictions; and one charge of careless driving.¹⁰ There were two incidents. In the first, Mr Tawa crashed a motorcycle into a car, suffering a broken leg and a head wound. He recorded 192 milligrams of alcohol per 100 millilitres of blood. In the second incident, while on remand, he was found driving the same motorcycle while disqualified. The sentencing Judge set a starting point of 20 months imprisonment for the first set of offending, uplifted by six months to reflect the “brazen” second offending, and a further three months to reflect previous convictions. On appeal, the High Court found the 20 month starting point was stern but within range, however, the six month uplift offended totality principles and it was replaced with a three month uplift. The further three month uplift was held inappropriate. The starting point was therefore 23 months.

[22] In Avramenko v R, the defendant faced one charge of driving with excess blood alcohol, his ninth such charge, and one charge of driving while disqualified, his sixth such charge.¹¹ He had been sentenced to short sentences of imprisonment, but these had clearly not deterred him. The District Court Judge set a starting point of 22 months

⁷ Bechan v Police [2015] NZHC 747.

⁸ At [16].

⁹ Samson v Police [2015] NZHC 748.

¹⁰ Tawa v Police [2016] NZHC 696.

¹¹ Avramenko v R [2015] NZHC 2087.

for the excess blood alcohol charge and 12 months for driving while disqualified. Mander J in the High Court agreed with those starting points individually, but held that when combined without any adjustment a 34 month starting point was too high. An end sentence of 28 months imprisonment was substituted for one of 23 months imprisonment.

[23] Based on these authorities, and Tawa in particular, Mr James submits that a combined starting point for the excess blood alcohol charge and the two driving while disqualified charges should have been 20 to 24 months, to reflect the aggravating features of the offending and the mitigating factor that this is Mr Stott’s first sentence of imprisonment.

[24] Counsel submits that from a starting point of 20 to 24 months, a discount for personal factors in the region of 10 to 20 per cent should be allowed, and the Judge was otherwise correct to give the full 25 per cent discount for Mr Stott’s early guilty plea. In the event that the appeal is allowed and the sentence is reduced to two years or less, counsel submits consideration should be given to an electronically monitored sentence. Mr James does not otherwise challenge the imposition of cumulative sentences, nor the one-month uplift for being found unlawfully in an enclosed yard.

Respondent’s submissions

[25] Ms Dayal submits that the starting points adopted by the Judge were within range. Aggravating features of Mr Stott’s offending include the first set of offending coming only two months after Mr Stott was disqualified from driving, the very high level of alcohol, the danger in which he put himself and others, and his now continuous history of driving-related offending. Not having served a sentence of imprisonment previously is a mitigating factor, however Ms Dayal submits previous sentences including home detention have not deterred him. Any remorse Mr Stott feels, counsel submits, is minimal. It was open to the Judge to adopt a starting point of 18 to 20 months on the excess blood alcohol charge, rather than the 14 months adopted.

[26] For the first driving while disqualified charge, counsel submits that the Judge was correct to set a starting point of 10 months imprisonment. While a lower overall
starting point was adopted in Samson, taking totality into account,¹² counsel submits that Mr Stott had a higher alcohol level and his driving was more dangerous.

[27] For the second episode, counsel submits that the starting point adopted by the Judge for the driving while disqualified charge was within range and the respondent also submits, contrary to Mr James’ submission, that the Judge would have had the totality principle to the forefront of his mind, and noted that this would be Mr Stott’s first sentence of imprisonment. Counsel submits that the Judge would have had regard to Mr Stott’s youth to an appropriate extent, and as the offending was neither an act of youthful indiscretion, nor an impulsive act immediately regretted, credit for his age was not warranted.

[28] Finally, Ms Dayal submits that Mr Stott should not receive credit for hardship relating to his injuries, as these did not deter Mr Stott from further offending. A similar approach was adopted by Woolford J in Tawa.¹³

Analysis

[29] The Judge was entitled to treat the two episodes of offending separately, and to impose cumulative sentences, but the totality principle must be kept front of mind.

[30] The lead offending must be the charge of driving with excess blood alcohol, third or subsequent, in the first episode of offending. There is no tariff judgment for this, however, the factors set out in Clotworthy provide a guide to the seriousness of the offending:¹⁴

(a) The breath or blood alcohol level;

(b) The length of time that had elapsed since the last drink driving conviction;

(c) Conviction for two or more drink driving offences in close succession;

¹² Samson v Police, above n 9.

¹³ Tawa v Police, above n 10.

¹⁴ Clotworthy v Police, above n 2, at [20].

(d) The manner of driving: innocuous or dangerous; accident and injury resulting or neither?;

(e) Whether the offender was disqualified or forbidden from driving at the time;

(f) The plea(s) and, if guilty, whether that plea was entered at any early stage or only belatedly;

(g) The sentences (in particular whether they included imprisonment) imposed for previous excess blood/breath alcohol convictions and the response (or lack of it) to those sentences;

(h) The offender’s record, if any, of convictions for other types of offending;

(i) Any genuine remorse shown and/or willingness on the part of the offender to confront his/her contributing alcohol and/or personal problems; and

(j) Any mitigating personal or family circumstances contributing to the offending.

[31] Whata J in Samson regarded items (a) to (e) as aggravating factors, items (g) and (h) as relevant to an uplift for aggravating personal circumstances, and items (i) and (j) as mitigating factors.¹⁵ Guilty pleas under item (f) are dealt with at the end. His Honour went on to make some broad generalisations about starting points, having reviewed the authorities:¹⁶

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

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

¹⁵ Samson v Police, above n 9, at [14].

¹⁶ At [15].

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

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

[32] The Judge’s assessment of the gravity of Mr Stott’s offending for this charge appears correct. There were aggravating factors. The starting point of 14 months imprisonment adopted by the Judge was well open to him, and in line with authority. The Judge set a 10 month starting point on the driving while disqualified charge for the first episode of offending and this was an appropriate starting point by reference to Peterson.¹⁷

[33] The Judge was entitled to impose those sentences cumulatively, making a sentence of 24 months imprisonment. With a full 25 per cent discount for his early guilty plea, Mr Stott received an end sentence of 18 months for the first episode of offending and this reasoning I conclude is sound.

[34] For the second charge of driving while disqualified the Judge set a 12 month starting point, higher than the first episode, to reflect the continuing offending. That in itself is justified as Mr Stott appears to have learned nothing from his sentences of 28 June and 25 August 2017. With a three month discount for the guilty plea, the Judge added nine months. With the uncontested one month uplift for the charge of being found unlawfully in an enclosed yard, this took the sentence to one of two years and four months imprisonment. Home detention was thus no longer an option.

[35] The weight of the appeal lies in the overall sentence which is submitted by Mr James to infringe the totality principle. In Tawa, a charge of driving while disqualified arose after a drink driving incident, and a six month uplift for that second episode was reduced to three months.¹⁸ In Tawa, the explanation given was that Mr Tawa was test driving a motorcycle he had repaired and planned to give away, only a short distance from his home. Woodford J held this excuse was not implausible.¹⁹

¹⁷ Peterson v Police, above n 1.

¹⁸ Tawa v Police, above n 10.

¹⁹ At [42].

The second episode here is more serious than in Tawa, as Mr Stott has no good or indeed any explanation for his offending. Whether he was attempting to steal petrol or not, he should not have been there, and should not have driven.

[36] I conclude the Court cannot ignore such flagrant offending. It began on 28 June 2017, was repeated on 25 August 2017, and again on 3 March 2018. The offending is serious, repetitious, and defiant of the Court. Underlying this offending is a serious risk to the public of being injured or worse by a recidivist drink and disqualified driver. The public interest influences the outcome of the appeal. I find that the sentence imposed by the District Court Judge did not breach the totality principle and was not out of proportion to the gravity of the whole offending. I do not consider there should be allowance for his injuries as they and his earlier offending has not deterred him one bit. Further, viewed in the totality, the sentence is reasoned, and well within range for such recidivist offending.

Conclusion

[37] For these reasons, the appeal is dismissed.







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

Nicholas Davidson J

Solicitors:

AG James QSO, Barrister, Christchurch Raymond Donnelly & Co., Christchurch