IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2015-425-8 [2015] NZHC 1513

BETWEEN	UNA FRANCES CREEGAN
Appellant	

AND	
NEW ZEALAND POLICE Respondent	

Hearing:	29 June 2015	

Appearances:	
L S Collins for the Appellant
S McKenzie for the Respondent	

Judgment:	
2 July 2015	

JUDGMENT OF NATION J

Background

[1]       The appellant, Ms Creegan, was born in Ireland.   She has lived in New Zealand since November 2012.  In February 2015, she was living in Queenstown and working as a personal trainer and manager of a Queenstown gymnasium.  Around
1.00 am on 26 February 2015, after consuming a significant amount of alcohol, she drove her car from a car parking building situated on Shotover Street in central Queenstown, drove through the CBD and approximately 2 km along a road out of town.   After negotiating the commercial areas, she failed to negotiate a left hand bend, crossed the centre line and drove headfirst into a bank on the right hand side of the road.   With the impact, the vehicle bounced back  onto the road  facing the direction it had come.

[2]       When the Police arrived, the appellant approached them stating she had been the driver.  It was clear to the Police that she was intoxicated.  She smelt heavily of alcohol and had vomited down her front.   She had to be taken to the Queenstown
Lakes District Hospital for observation.   She had received facial burns from an

CREEGAN v POLICE [2015] NZHC 1513 [2 July 2015]

airbag.    While  in  hospital  a  blood  sample  was  taken.    The  reading  was  159 milligrams of alcohol per 100 millilitres of blood.

[3]       On  charges  of  excess  blood  alcohol  (“EBA”)  and  careless  driving,  the

appellant was sentenced to:

(a) 140 hours’ community work;

(b) supervision for a period of nine months with a condition that she attend and complete an alcohol and drug assessment and all counselling and treatment as directed, including residential treatment in relation to her alcohol issues if directed; and

(c) disqualification for a period of 12 months.

Ms Creegan appeals against this combination of sentences as manifestly excessive but, through her counsel, takes no issue with the 12 month period of disqualification.

Jurisdiction

[4]       On an appeal against sentence, it is not for this Court to consider matters afresh or to substitute its own opinion for that of the sentencing Judge.  The Court will intervene only if the sentence imposed is manifestly excessive and will review the sentence only if it can be shown that there was a clear error in the process of reasoning followed by the sentencing Judge.1

Submissions and Discussion

[5]       In submissions for Ms Creegan, Mr Collins suggested that s 13 Sentencing Act 2002 applies and, accordingly, a fine should have been imposed rather than community work and/or supervision, a fine being the least restrictive outcome.  He submitted that Ms Creegan’s ability to pay a fine should not have been determined
solely on the basis of whether or not she could have paid immediately the sort of fine

1	Tutakangahau v R [2014] NZCA 279.

that would have to be imposed to reflect the seriousness of the offence.  Given that, at the time of sentencing, she was in employment in Queenstown and not living there on a transient basis, Mr Collins submitted that the Judge ought to have considered and allowed for the possibility that she would be able to pay an appropriate fine over time.  He accepted that, at the time, Ms Creegan had indicated she would not be able to pay the sort of fine that would be required in an immediate lump sum.

[6]       The Crown submitted that the Judge made no error in this regard, with his sentencing notes recording the fact he had been told she was not in a position to pay a fine.

[7]       Mr Collins did assist the Court by explaining that in Queenstown the Courts face a problem in dealing with offenders who may be in Queenstown temporarily, who are foreigners and who may avoid the actual burden of fines by simply choosing to leave the country, unconcerned as to the impact which non-payment of fines might have at some point in the future if they ever wished to return to New Zealand.  That may well have been a matter of concern to the sentencing Judge even though, at the time Ms Creegan appeared before him, she was in employment.

[8]       Since  she  was  sentenced,  Ms  Creegan,  on  her  own  initiative,  sought  an alcohol and drug assessment from an agency in Queenstown.  Their report of 2 June
2015 refers to the way her offending has “put at risk her planned trip home to Ireland with her partner, as well as her plans to move to Perth in a few months to be with him”.

[9]       Section 13(1) requires the Court to regard a fine as the appropriate sentence in addition to, or instead of, any other sentence unless the Court is satisfied that the purpose or purposes for which sentence is being imposed cannot be achieved by imposing a fine.

[10]     This was a most serious blood alcohol offence.  Ms Creegan had got into her car and driven it from a parking building when she was in no fit state to do so.  She had driven it through a narrow but central street of Queenstown where it was likely a number of people were about, putting them at risk.   The sentencing Judge was

familiar with Gorge Road and pointed out that, had she proceeded further, there would have been further danger for herself and others.  It was fortuitous that, with her crossing completely onto the wrong side of the road and losing all control of her car, no one else was involved in the crash.  If the matter had been dealt with by way of a fine, it would have had to have been of an order close to the maximum available of $4,500.  Ms Creegan’s counsel informed the Court that, since the sentence was imposed, Ms Creegan has been able to save $2,000 that would now be available to pay towards a fine.  That however indicates that, had a fine been imposed, she would have needed considerable time to pay it off.

[11]     In my view, the sentencing Judge could reasonably have concluded that the imposition of a fine would not have been sufficient to hold Ms Creegan accountable for her offending or to adequately reflect the need for a deterrent as far as this sort of offending was concerned.  Accordingly, there was no error in his deciding to deal with the matter by way of sentencing her to a period of community work rather than imposing a fine.

[12]     Mr  Collins  also  submitted  that,  if  it  remained  appropriate  to  impose  a sentence of community work, the period of 140 hours was excessive.  He noted that in McEachen v Police the High Court had considered a reading of 81-160 mcg as “low blood alcohol” and 161-200 mcg as medium.2   He referred to the judgment of the  High  Court  in  Jones  v  Police.3      In  that  case  the  appellant  was  convicted
following a defended hearing of driving with excess breath alcohol.  The breath reading was 911 mcg.  The sentence of 120 hours’ community work and six months’ disqualification was overturned as being manifestly excessive.  On the appeal, a fine of $2,000 plus nine months’ disqualification was substituted.

[13]     The Crown referred to the judgment on appeal of the High Court in Mallinder v Police.4   Mr Mallinder was 20 years of age.  He had a previous conviction for drink driving for an offence committed within 12 months.   The High Court upheld sentences  of  130  hours’ community work,  10  months’ disqualification  and  nine
months’ supervision, a further three months for failing to stop for a police officer and

2	McEachen v Police [1995] 2 NZLR 251 (HC).
3	Jones v Police HC Auckland CRI-2007-404-325, 21 February 2008.
4	Mallinder v Police HC Invercargill CRI-2011-425-000030, 30 August 2011.

a concurrent four month period of disqualification for careless driving.   French J

described the situation before the Court as involving:5

… a heavily intoxicated driver at almost twice the legal limit who has been on a three-day drinking binge, who has had little sleep and who is trying to elude Police.  He is driving in a residential area at 9.15 in the morning, albeit on a Sunday, and has three passengers on board, none of whom are wearing their seatbelts.

[14]     In Sherley v Police the Courts had to deal with a young offender who had just completed his final under-graduate examination.6    At around 5.00 pm he drove a vehicle in an urban area, failed to negotiate the stopping distance between him and the vehicle in front and collided gently with the rear of that vehicle but caused no damage.  His alcohol level was 1053 mcg per litre of breath.  On the breath alcohol charge,  he  was  fined  $1,100,  disqualified  for  12  months  and  subjected  to  nine months’ supervision with counselling as directed.  He was fined $300 on a careless
driving charge.  In substitution, the High Court quashed the sentence of supervision, reduced the period of 12 months’ disqualification to nine months but held that fines totalling $1,400 and Court costs of $132.89 should stand.

[15]     In Sherley v Police, Asher J referred to the judgment on appeal to the High Court in Fox v Police.7   The appellant there was charged with driving with EBA with no careless driving aspect.  His reading was 400 mcg of alcohol per litre of breath. He was aged 17 and a first offender.   He was initially sentenced to 150 hours’ community work  and  six  months’ disqualification.    On  appeal,  the  sentence  of community work was replaced with a sentence of one year’s supervision because the
Judge was of the view this young person had an alcohol problem which needed to be addressed.  Beyond emphasising the rehabilitative focus of the sentence substituted on appeal, the Judge was not otherwise critical of the sentence of 150 hours’ community work.

[16]     In Wilkins v Police, the Courts had to deal with a 23 year old hairdresser with no previous convictions.8   On 17 June 2006, she drove her vehicle with slightly more

5	At [24].
6	Sherley v Police HC Auckland CRI-2012-404-000129, 25 June 2012.
7	Fox v Police HC Hamilton CRI-2010-419-49, 23 August 2011, cited in Sherley v Police, above n
6, at [27].
8	Wilkins v Police HC Christchurch CRI-2008-409-008,21 February 2008.

than two and a half times the legal limit of alcohol and crashed into a parked car.  On her  plea  of  guilty,  she  was  ordered  to  pay  a  fine  of  $1,000  and  reparation  of
$5,363.76.  She was disqualified for a period of 15 months.  She appealed against the length of the disqualification.  The High Court declined to interfere with the sentence imposed.

[17]     In Marra v Police, the High Court, on appeal, had to consider the sentence imposed after a defended hearing.9   The appellant was driving in the early hours of the morning.  Her blood alcohol level was 194 mg of alcohol per 100 ml of blood. She drove into the back of another vehicle with her vehicle then leaving the road. She was disqualified from driving for 14 months, fined $1,000 plus various costs on the blood alcohol charge and a further $1,000 on the careless driving charge.  The High Court declined to interfere with those sentences.  In that case, the appellant had not been entitled to any credit for a guilty plea nor was there any credit for remorse.
Through defending the charge, she had attempted to take advantage of “technical and unmeritorious defences”.10

[18]     With Ms Creegan, the sentence of 140 hours’ community work was instead of a fine.  The maximum number of hours of community work to which a person can be sentenced is 400 hours.   The sentencing Judge had to deal with the totality of offending.  He did that through the sentence he imposed on the blood alcohol charge, stating that this penalty also dealt with the charge of careless driving on which Ms Creegan was convicted and discharged.

[19]     In my view, the imposition of a sentence of 140 hours’ community work, although stern, was within the range that could be imposed for the blood alcohol offence in conjunction with what was a serious instance of careless driving.

[20]     The sentencing Judge also sentenced Ms Creegan to nine months’ supervision
with special conditions relating to her receiving counselling or treatment for alcohol issues.

9	Marra v Police HC Auckland CRI-2009-404-000309, 18 November 2009.
10	At [84] and [95].

[21]     Mr Collins submitted that the imposition of supervision was neither required nor appropriate.

[22]     The Crown referred to  Mallinder v Police as an instance where a Court considered a combination of community work, disqualification and supervision in respect of an EBA charge was appropriate.  The Crown nevertheless acknowledges that, on appeal, no challenge was made to that combination of sentences.  The Court in  Mallinder  was  also  dealing  with  a  20  year  old  who  had  a  previous  EBA conviction.

[23]     The High Court considered the imposition of supervision in conjunction with a fine on excess breath alcohol and careless driving charges in Sherley v Police.  On the breath alcohol charge, Mr Sherley had been convicted, fined $1,100, disqualified for 12 months and sentenced to nine months’ supervision with an order that he undertake such counselling (including alcohol counselling and treatment) as decided by a probation officer.   Asher J noted there was no reference in the sentencing decision to s 46 Sentencing Act which imposed a preliminary requirement before a sentence of supervision could be ordered.  Section 46 provides:

46 Guidance on use of sentence of supervision

A court may impose a sentence of supervision only if the court is satisfied that  a  sentence  of  supervision  would  reduce  the  likelihood  of  further offending by the offender through the rehabilitation and reintegration of the offender.

[24]     As Asher J noted, this section means that a sentencing Court must be satisfied that the sentence of supervision will reduce the likelihood of further offending before that sentence can be imposed.11

[25]     Asher J also noted:

[17]      A sentence of supervision is a significant sentence.  It ranks as more serious than fines and reparation.   It can involve a very considerable imposition on personal liberty.  The offender is required to report, to live and to take employment where directed, and not to move without permission. There can be a requirement imposed by the probation officer on the offender

11	At [14].

not to associate with any specified person, and a requirement to take part in a rehabilitative or reintegrated needs assessment.

[26]     Asher J referred to three judgments of the High Court which he considered were relevant in deciding whether supervision was required.12   He noted “in none of these cases was supervision imposed as well as a fine and disqualification.   They indicate that the sentence of supervision, as well as not being justified under s 46, was manifestly excessive”.13

[27]     In Fox v Police, Heath J considered a sentence of 12 months’ supervision was a sufficient substitute for a sentence of 150 hours’ community work.

[28]     In   the   hierarchy   of   sentences,   community   work   ranks   equally   with supervision.   Because they rank equally from a penalty point of view, supervision should be imposed in addition to community work only where it is necessary for rehabilitation and to reduce the prospect of further offending.

[29]     In  this  case,  the  Judge’s  sentencing  remarks  suggest  the  sentence  of supervision  may  have  been  imposed,  not  to  reduce  the  likelihood  of  further offending, but as a penalty. However, given the way supervision was coupled with a requirement for an alcohol abuse assessment and potential treatment, it is possible there was a rehabilitative purpose.  The Judge’s views about what had occurred and what he may have wanted to achieve are apparent from his remarks on sentencing. After describing what had occurred with her driving, the state she had been in and
her work, the Judge said:14

I know what you have said about matters and how strongly you are against everything.   It is very easy to say all those things after you have been apprehended for this type of offending.  I note also you have not come to the attention New Zealand Courts on any prior occasion.  It would appear to me you have alcohol issues if you can get that drunk and drive a car a time [sic] when you did not know where you were or what you were doing and there must be a major penalty.   In reality, we do not need people visiting our country such as you, when you as a visitor to the country drive in this manner at this level of gross intoxication.

12	O'Malley  v  Police HC  Christchurch CRI-2009-409-209, 11  March  2010;  Lee  v  Police HC Christchurch CRI-2008-409-217, 12 February 2009; Fox v Police, above n 7.
13	At [28].
14	Police v Creegan [2015] NZHC 5476 [23 March 2015].

[30]     Ms Creegan had appeared in Court where she was represented by the Duty Solicitor.  She had with her a letter of apology which she presented to the Court and a letter from her employer speaking positively of her and confirming the position she held as a personal trainer and manager at his gymnasium.

[31]     Her counsel explained to me that in Queenstown there may not have been any probation officer or anyone else qualified to discuss with Ms Creegan and the Court whether she needed or would benefit from further counselling or supervision.  The Judge may have considered that the offending spoke for itself in that regard but, given all his remarks on sentencing, I consider there may well have been an error in his imposing supervision. It appears that his Honour imposed this sentence not for the purpose of assisting in Ms Creegan’s rehabilitation so as to reduce the likelihood of further offending, but as part of the penalty which he considered necessary to mark the seriousness of what had occurred.

[32]     The lodging of the appeal has meant that Ms Creegan has neither begun her sentence of community work nor has she been required to attend the alcohol issues assessment to see if further counselling or treatment is required.  However, she has herself arranged for such an assessment and that report is before the Court.

[33]     It appears from the report that Ms Creegan has been forthcoming and frank in discussing her alcohol use and related issues with the report writer.  The report refers to her, on the night of the offence, drinking wine with friends when having a meal in Queenstown and then deciding to keep drinking with friends in Queenstown rather than return to her home.   It refers to her then drinking five or six large glasses of wine and then appearing to have experienced a black-out.  The report refers to her having no memory of leaving the bar where she had been drinking, of going to her car or driving.   (The reference to her appearing to have experienced a black-out somewhat undermines the submission that was made for her by Mr Collins that her loss of memory could have been the result of the injuries she suffered in the crash rather than the result of her drinking.)

[34]     The report referred to her habitual binge drinking when younger, but of her drinking having reduced  significantly since the incident  and  of her also  having

periods in her life when she was involved in top level sport during which she would abstain from alcohol altogether.  The use of the AUDIT screening tool indicated a score of 14 which “indicates potentially hazardous or harmful drinking patterns, but no dependency”.  The report concluded that Ms Creegan appeared very motivated to seek an assessment of her alcohol use and to discuss strategies for reducing harm when drinking.   The report recommended that she continue to be aware of the potential impacts of abusing alcohol in the way that she had been. Further, the report indicated that she had discussed some harm reduction strategies but did not suggest that she needed further treatment or counselling.

[35]     The further information contained in  this report confirms to me that the sentence of supervision was neither necessary nor appropriate.  With that sentence having been imposed, the overall sentence imposed for both the EBA and careless driving was manifestly excessive.   The circumstances in which the offences were committed were serious and the consequences could have been much worse.  It was, nevertheless, appropriate and necessary to acknowledge Ms Creegan as a first offender and to give her credit for her immediate plea of guilty, her remorse and the fact that she was otherwise of good character.

Result

[36]     The appeal is allowed.  The sentence of supervision is quashed. The sentence of 12 months’ disqualification and the sentence of 140 hours’ community work on the  EBA  charge  stand.    On  the  careless  driving  charge,  Ms  Creegan  remains convicted and discharged.

Solicitors:
L S Collins, Barrister, Queenstown
Crown Solicitor, Invercargill