IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE	
CRI-2019-419-17
[2019] NZHC 1080	

BETWEEN	TIMOTHY RENATA WITHERS
Appellant	
AND	NEW ZEALAND POLICE
Respondent	

Hearing:	2 May 2019	
Appearances:	T Sutcliffe for Appellant
A S Alcock for Respondent	
Judgment:	16 May 2019	

JUDGMENT OF PAUL DAVISON J

This judgment was delivered by me on 16 May 2019 at 3:45pm Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:
Crown Solicitor, Hamilton

WITHERS v POLICE [2019] NZHC 1080 [16 May 2019]

Introduction

[1]	Mr Withers (the appellant) pleaded guilty in the District Court at Hamilton to charges of driving with excess breath alcohol third and subsequent,1 and careless driving.2 Judge Bidois sentenced him to 160 hours’ community work, and disqualified him from driving for 13 months.3

[2]	He appeals on the ground that the sentence imposed was manifestly excessive having regard to the offending and to his personal circumstances. His appeal is limited to the sentence of community work. He does not appeal the 13 month disqualification from holding or obtaining a driver’s licence, which he accepts was appropriate.

Background

[3]	At around 12.30pm on Sunday 3 February 2019, Mr Withers was driving his car on State Highway 2 en route from Auckland to Waihi when he fell asleep and his car collided with a truck travelling from the opposite direction. An evidential breath test produced a result of 714 micrograms of alcohol per litre of breath. He explained to police that he had been working long hours during the previous week and had been drinking at a wedding party the night before.

[4]	The appellant has previous convictions for driving with an excess breath alcohol level in 1991 and again in 2009. He also has three previous convictions for careless driving in 1994, 1997, and 2002.

Approach on appeal

[5]	The approach to be taken to an appeal brought under s 250(2) of the Criminal Procedure Act 2011 was addressed by the Court of Appeal in Tutakangahau v R.4 The Court said:

[30] The practical effect of preserving the approach applied to date is that the appellate court does not just start afresh nor simply substitute its own opinion for that of the original sentencer. Rather, in the words of Shipton, it must be

1	Land Transport Act 1998, ss 56(1) and 56(4)
2	Land Transport Act 1998, ss 8 and 37(1)
3	Police v Withers [2019] NZDC 4585.
4	Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.

shown that there was an error “whether intrinsically, or as a result of additional material submitted” on appeal. If there is an error of the requisite character, the Court will then form its own view of the appropriate sentence.

(footnotes omitted)

[6]	Where an error or errors are found to have occurred, the court’s assessment of their significance will inform its decision as to whether a different sentence should be imposed. The Court of Appeal noted that although s 250(2) makes no express reference to a “manifestly excessive” sentence, this concept remains engrained in the courts’ approach to sentence appeals.5

[7]	This Court will not lightly interfere with a sentence imposed by the District Court,6 but nevertheless must allow an appeal if satisfied that, for any reason, there is an error in the sentence imposed by the District Court and if satisfied that a different sentence should be imposed.7 In any other case, the appeal must be dismissed.8

Submissions

The appellant’s submissions

[8]	Mr Sutcliffe for the appellant submits that in determining the sentence, the Judge erred by failing to give sufficient weight to the appellant’s personal and domestic circumstances. Counsel notes that the appellant is the sole caregiver for his two daughters aged 16 years and 18 years. He says that the appellant is employed full- time as a sales manager, and works long hours during the week leaving him little time available to spend with his daughters. The weekends are his only available family time, and as the community work sentence must be undertaken on a Saturday, the effect of the sentence is to reduce his family time by half.

[9]	Counsel submits that the Judge also erred by taking into account the careless driving offending when determining the sentence for the excess breath alcohol driving charge. He submits that as the maximum penalty for the careless driving charge is a fine, the Judge should only have taken it into account if imposing a fine on the excess

5	At [33] and [35].
6	Te Aho v R [2013] NZCA 47 at [30].
7	Criminal Procedure Act 2011, s 250(2).
8	Section 250(3).

breath alcohol charge. He submits that it appears that the Judge effectively uplifted the penalty imposed for the excess breath alcohol charge by factoring in the careless driving offending, and thereby arrived at a sentence of community work, notwithstanding that the maximum penalty for the careless driving charge was a fine.

[10]	Mr Sutcliffe submits that the Judge ought to have imposed a fine in these circumstances, because the appellant’s breath alcohol level did not breach the “high” ranges, and the appellant’s previous drink driving convictions were 10 and 28 years ago respectively.

The respondent’s submissions

[11]	Ms Alcock for the respondent acknowledges that a fine was a sentence available to the Judge, but submits that previous cases have established that a third or subsequent blood alcohol offending conviction exposes the convicted person to a potential prison sentence.9 Counsel submits this also applies to breath alcohol offending.

[12]	Ms Alcock also refers to Rhee v Police, in which the Court dismissed an appeal against a sentence of 200 hours’ community work where it was the appellant’s third conviction for driving with excess breath alcohol.10 The offending occurred in 2015 and the appellant’s previous convictions had taken place in 1997 and 2004. The Court found that the Judge had not made an error in sentencing the appellant, and the sentence of 200 hours community work was well within range. Counsel for the respondent submits that this illustrates that the sentence in the present case was also well within the range available to the Judge.

[13]	In response to the submission for the appellant that the community work sentence will have a substantial impact on the limited time he has available to spend with his family, Ms Alcock submits that sentences of community work are commonly imposed in the District Court for third time excess breath alcohol convictions, and that

9	Pitman v Police [2015] NZHC 205 at [12].
10	Rhee v Police [2016] NZHC 818.

community work is routinely imposed on offenders with a range of personal circumstances.

[14]	Ms Alcock further submits that the Judge was entitled to take the careless nature of the appellant’s driving into account as an aggravating factor.

Discussion

[15]	Section 56(4) of the Land Transport Act 1998, provides:

(4)	If a person is convicted of a third or subsequent offence against subsection (1) or subsection (2), or any of sections 57A(1), 58(1), 60(1) or (2) (whether or not that offence is of the same kind as the person’s first or second offence against any of those provisions),

(a)	the maximum penalty is imprisonment for a term not exceeding 2 years or a fine not exceeding $6,000; and

(b)	the court must order the person to be disqualified from holding or obtaining a driver licence for more than 1 year.

[16]	Although the appellant’s previous convictions were for offending well in the past, they could not be ignored or entirely discounted when the Judge assessed the appropriate penalty for the present offending. The Judge considered and rejected a submission by the appellant’s counsel that a fine was the appropriate sentence. He said:

[4]     There needs to be an escalation in the type of penalty to be imposed   so that will be community work. I bear in mind, although you have two previous [convictions] some years ago, but road safety was clearly compromised.

[17]	While the imposition of a fine was a sentence available to the Judge, the sentence of 160 hours community work was also available given the appellant’s previous convictions. Having regard to the circumstances of the offence being the appellant’s third drink-driving offence and having regard to the circumstances of the offending and the breath alcohol level being nearly twice the legal limit, in my view the Judge’s decision to impose the more restrictive penalty of community work rather than a fine was entirely justified. It was clearly well within range in terms of an available sentence, and not manifestly unjust for the Judge to impose a sentence of community work rather than a fine under these circumstances.

[18]	The obligation on the appellant to undertake community work on the weekend and the impact of that commitment on his limited family time, is not a matter that would render the imposition of a sentence of community work manifestly excessive. A sentence of community work is an appropriate penalty under these circumstances, and offenders commonly have to rearrange their lives and other commitments in order to undertake community work. While the appellant will have less time to spend with his family while completing the community work, that consequence does not justify this court interfering with the sentence imposed by the Judge. The restrictive requirements of a sentence of community work serve to emphasise the comparative seriousness of the offending for which it is imposed, over that which would have attracted a fine. The sentence of community work is appropriate to promote a sense of responsibility and deterring the appellant from further offending, and the impact of the sentence on the appellant’s weekends and time with his family is simply a consequence of his own decisions and his offending that he must take personal responsibility for.

[19]	I reject the submission made for the appellant that the Judge erred by taking the appellant’s careless driving into account when determining the sentence to be imposed. The appellant’s careless driving involved him falling asleep at the wheel and veering across the centreline of the road and running into the side of an oncoming truck. The appellant was driving after drinking alcohol while attending a wedding party the previous night and after working long hours during the preceding week. At around 12.30 pm that Sunday afternoon, his breath alcohol level was nearly twice the legal limit. His collision with the truck could have been fatal or caused serious injury. He was clearly endangering other road users, and it is only by good fortune that the consequences of his driving did not result in tragedy. The Judge succinctly and appropriately noted that “road safety was clearly compromised” by the appellant.11

[20]	The appellant’s conduct which comprised the offence of careless driving, was also an aggravating factor which was clearly relevant to an assessment of the gravity of his breath alcohol offending, and the Judge was entitled to factor this into his sentence. The Judge convicted and discharged the appellant on the careless driving charge and did not double count the careless driving in imposing sentence.

11	At [4].

Result

[21]	The appeal is dismissed.

Paul Davison J