IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2010-419-64

BETWEEN	VIRGINIA MAREE HARRISON Appellant

AND	POLICE Respondent

Hearing:	7 October 2010

Appearances: A Steedman for Appellant
R B Annandale for Respondent

Judgment:	7 October 2010

JUDGMENT OF COOPER J

Solicitors:
A Steedman, PO Box 7728, Wellesley Street, Auckland
Almao Douch, Crown Solicitors, PO Box 19173, Hamilton 3244

HARRISON V POLICE HC HAM CRI-2010-419-64  7 October 2010

[1]       The   appellant   appeals   against   an   effective   sentence   of   ten   months’

imprisonment imposed by Judge Connell in the Hamilton District Courts on 28 June

2010.

[2]       The appellant was charged with two offences arising out of the same incident. First, driving with excess breath alcohol (being a third or subsequent offence) which carries a maximum penalty of two years’ imprisonment or a fine of up to $6,000, together with mandatory disqualification from driving for at least one year.

[3]       Secondly,  the  appellant  was  charged  with  dangerous  driving  contrary  to s 35(1)(b) of the Land Transport Act 1998 which carries a maximum penalty of three months’ imprisonment or a $4,500 fine, together with disqualification for at least six months.

[4]       The Judge sentenced the appellant to nine months’ imprisonment and two years disqualification on the excess breath alcohol charge.  He imposed a cumulative sentence of one month’s imprisonment in respect of the dangerous dirving charge and 12 months’ disqualification.   Since the Judge referred to a total period of disqualification of two years overall, it can be inferred that his intent was that the disqualification aspect  of both sentences was to be concurrent.   Both  sentences included an appropriate discount for the appellant’s early guilty plea.

[5]       The facts on which the charges were based arose on Christmas Day 2009. The appellant was apprehended at approximately 9.30 a.m. on that day in Paeroa. She admits that she had drunk two bottles of wine before electing to drive.   She drove with the rear door of her vehicle, a Nissan van, open.  Her seven year old child was curled up in a blanket behind the rear seat.  According to the summary of facts there was only 20 centimetres between him and the rear of the van.  The summary notes that he was noteably shaken when spoken to by the police and it was “miraculous” that he had not fallen out during the 15 kilometre journey through the Karangahape Gorge.  The evidential breath test administered after the vehicle was stopped registered 1,005 micrograms of alcohol per litre of breath, well over twice the legal limit of 400 micrograms.

[6]       The appellant has six previous convictions for driving with excess breath alcohol, although the last of those was in 2000.  In respect of the last two of those offences terms of imprisonment of six months were imposed in each case.

[7]       There is no real explanation for what caused the extremely irresponsible behaviour that gave rise to the present offending after the gap of ten years other than a vague reference in the pre-sentence report to relationship difficulties and there is possibly a deeper explanation in the report from Mr McCormick, a psychiatrist at the Bexley Clinic, which Mr Steedman has been able to refer to on the appeal which refers to various traumatic events in the appellant’s past.

[8]       The Judge noted the very high level of alcohol in the appellant’s breath, her six previous convictions which had also involved high to very high levels of alcohol, her apparent alcohol addiction problem as well as the length of time since her last conviction.  However, at [5] he said:

… I accept from Ms Nepe, yes certainly this is a long time ago since you last appeared and were convicted, the year 2000, but I am afraid to say it does not offer any great support for not imprisoning you.  I am sorry to say, this is a case where that has to be the outcome.   The last two convictions were terms of imprisonment and I cannot ignore that.  The law requires that I take into account your previous convictions, the bad driving and the very high level that you were driving at.  They are all factors that have me come to an overwhelming conclusion here which is there can only be a term of imprisonment imposed.

[9]       He continued, at [6]:

You have asked today that I consider your children but the trouble I have with that is that on 25 December of last year it is not something you gave any great consideration to and I cannot use that as a reason as to why here I should not imprison you.  Ms Nepe has suggested that home detention and community detention might be sentences you could perform.  Reservations are expressed about that by the probation service.  It is not so much that you cannot or can report, it is more about the fact that here the only appropriate response to this is a term of imprisonment.   I do not consider that home detention and community detention are appropriate sentences for your persistent and continued offending in this way.

[10]     I note also at [8] the Judge explained why he was imposing a consecutive term for the dangerous driving offence.  He referred to the extreme danger to which the  appellant’s  young  child  had  been  exposed.    It  may  be,  as  Mr  Annandale

submitted for the Crown, that it would have been more appropriate for concurrent sentences to have been imposed having regard to the fact that both charges were based on the same incident and they were connected in time.  The Judge could then have marked the dangerous driving charge with a more substantial term, but not altered the overall effect of the sentence by providing that the terms be served concurrently.   However, as the Court of Appeal has emphasised on numerous occasions it matters not how a sentence is made up.  What matters is whether the overall result is a reasonable and proportionate response to the offending concerned.

[11]     By her appeal the appellant alleges that the sentence imposed was clearly excessive.  In the written submissions filed and served in advance it was submitted that the Judge should have imposed a sentence of home detention rather than imprisonment.  However, on appeal the position has changed and Mr Steedman has contended that having regard to time already served the appellant’s conduct has already been sufficiently denounced and it would be appropriate having regard to her personal circumstances and those of her family for a sentence of supervision to be imposed in respect of the balance of the term.   The appellant has served approximately three months and one week and has a release date of 25 November
2010.  Mr Steedman submits that it would be appropriate now for her to be released on supervision.

[12]     That submission has been advanced on the basis that there was a failure by the sentencing Judge to give adequate weight to the appellant’s personal circumstances and Mr Steedman was critical of an absence of information in the pre- sentence report in that respect.  Certainly there was nothing like the depth of material to which he has now been able to refer in terms of Mr McCormick’s letter of
17 September  2010  which  refers  to  an  unsettled  and  unhappy  childhood  and incidents of sexual abuse as well as the traumatic loss of a young son through cot death.  He refers to her behaviour as having post traumatic anxiety themes and the report may well provide some explanation for her ongoing alcohol problems.

[13]     Mr Steedman also noted that the appellant’s partner, Mr Sluice, appears to be on the verge of losing his job because of the fact that he has had to stay at home to

look after their three dependent children aged two, six and eight.  It is possible that alternative care arrangements might have to be made for the children.

[14]     I have also seen material from the Waahi Whaanui Trust and Mrs Edwards who is a programmes facilitator/team leader of the Trust, has described efforts that the appellant has made and continues to make to improve her life skills.

[15]     Mr Annandale, for the Crown, has emphasised that this Court on appeal should not disturb a District Court Judge’s decision to impose imprisonment instead of  home  detention  unless  the  Judge  has  acted  on  a  wrong  principle,  has  not considered relevant matters, or has considered irrelevant matters.   To that can be added the ground that a decision is plainly wrong.  He referred me to the decisions of the Court of Appeal in R v Iosefa,  French J in Ebdell v Police,  of Andrews J in
Andrews v Police and Allan J in Governor v Police where there is discussion of the

fact that the decision of whether to impose home detention is a matter for the discretion of the Sentencing Judge.

[16]     In  this  case,  Mr  Annandale  submitted  that  the  Judge  had  considered  all relevant circumstances including the fact that the appellant had the care of her three children, a factor that he had discounted because by her offending the appellant had herself placed one of her children in danger.  He noted that the Judge was plainly aware that the appellant was a caregiver, but nevertheless determined that imprisonment was an appropriate response to the offending.   Mr Annandale also drew my attention to the fact that in his sentence, the Judge had provided for special release conditions to apply requiring the appellant to attend for an assessment and complete  and  undertake  a  programme  for  drug  and  alcohol  counselling  on  her release.

[17]     There  is  no  doubt  that  the  circumstances  of  this  case  were  serious. Consumption of two bottles of wine as the appellant admitted, before embarking on a journey along a difficult road with an open rear door, exposing a young child to a

risk of falling out, well merited a stern sentencing response.   The high reading of

1,005 micrograms of alcohol per litre of breath indicates that the appellant must have been in an advanced state of intoxication.  In the circumstances, there was danger not only to the appellant and her child, but to other road users as well.

[18]     Although Mr Steedman has referred me to cases in which sentences of home detention were imposed in respect of charges against other offenders which allege a third or subsequent drink driving offence, I am not satisfied that the present sentence is clearly excessive or that the appellant can establish that the Judge has failed to apply s 8(1)(e) of the Sentencing Act 2002 requiring the Judge to take into account the general desirability of consistency with appropriate sentencing levels in respect of similar offenders committing similar offences in similar circumstances.   This is especially so  when  the appellant’s  history of  previous convictions is  taken into account, notwithstanding the ten year gap which exists between the present and her previous offending.

[19]     Plainly there was a need to ensure that the sentence fulfilled the purposes of s 7(1)(a), (b), (e), (f) and (g) of the Sentencing Act.  This is particularly so because of the appellant’s reported denial of the seriousness of her actions and minimal insight into that, commented on in the pre-sentence report.  In the circumstances, the Judge was entitled to decide under s 16(2) that the sentence of imprisonment was justified.  In my view, that is what he did at [6] when he rejected the possibility of home  detention  and  community detention  as  appropriate  sentences  for  what  he described as the appellant’s “persistent and continued offending”.

[20]     I have not been persuaded by anything Mr Steedman has put before me that the sentence was excessive and I note that the release date is on 25 November 2010.

[21]     In the circumstances the appeal is dismissed.

[22]     I note that upon returning to my Chambers I discovered that the recording device   which   I   had   thought   was   recording   my   sentencing   remarks   had malfunctioned.   The foregoing is my immediate reconstruction, as best as I can achieve, of the remarks that I made.