IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI 2013-425-000023 [2013] NZHC 1450

ALLAN JAMES CARRAN Appellant

v

POLICE Respondent

Hearing:	14 June 2013

Counsel:	W D Dawkins for Appellant
E L Higbee for Respondent

Judgment:	17 June 2013

JUDGMENT OF WHATA J

[1]       Mr Carran was sentenced in the Invercargill District Court on a charge of excess breath alcohol to a sentence of seven months imprisonment and disqualified from holding or maintaining a driver’s licence for a period of 18 months.  He was also subject to standard release conditions and two special conditions following release.

[2]       Mr Carran had five previous convictions relating to excess breath alcohol. Nevertheless he appeals the sentence essentially on the basis that instead of imprisonment he should have received a sentence of community detention or in the alternative a sentence of seven months imprisonment was excessive.

Sentencing notes

[3]       The Judge described the facts of the offending in this way:

CARRAN v POLICE [2013] NZHC 1450 [17 June 2013]

[2]        The facts relating to your offending are these:   At 12.50 am on Sunday 190 March this year you were driving a Nissan motor vehicle on Wreys Bush-Otautau Road near Otautau.  You were stopped by the police who were performing a random stop, you were breath tested. You were found to have a breath alcohol reading of 1266 micrograms of alcohol per litre of breath.  In explanation you stated you thought you would drive down to Otautau to pick up your wife who was at another address.

[4]       The Judge then describes the offender’s personal background, namely that he is a man of 47 years of age, described as a high risk of reoffending in a similar manner, that he has advised the probation officer that he is motivated to attend an alcohol and drug related course if instructed.  The Judge notes that the appellant said he did not believe he had a problem with alcohol.  His prior sentence of supervision for drink driving offending in 2003 is also noted.  The Judge then summarises the arguments presented by Mr Slater, then defence counsel.   The Judge then records that he has regard to ss 7 and 8 of the Sentencing Act 2002 and was mindful of s 16. He  had  regard  to  leading  decisions  for  sentencing  offenders  for  this  type  of
offending, namely Clotworthy v Police;  R v McQuillan and R v Stoves.1    He also

considered decisions of the High Court in Noble v Police and Bidois v Police2 referred to by Mr Slater.  The Judge opines that the case of Noble is the most helpful by way of guidance.   He said that there was an 11 year gap since the last similar offence.   The offender in that case showed a lack of insight about the effect of alcohol on him and accompanying lack of remorse.  He noted that there was a lack of real and any genuine interest in rehabilitation until shortly prior to sentencing.  He said that in Noble on a fifth conviction with breath alcohol level of 851 micrograms, a starting point of eight months imprisonment was upheld.

[5]       The Judge recorded the following key factors as relevant:  the appellant’s age, and a breath alcohol of 1266 micrograms, which is over three times the legal limit. The Judge said that is representative of the risk posed by the appellant.  He noted that the last offence was 8 March 2003 and said that there was a gap of some ten years  between  this  offence  and  the  last  offence.    He  noted  that  it  is  the  fifth conviction of a similar kind and observed that there were convictions in 1985, 1988,
1993 and 2003. The early guilty plea is also noted.

1	Clotworthy v Police (2003) 20 CRNZ 439 (HC);  R v McQuillan CA 129/04, 12 August 2004;
R v Stoves CA 264/06, 7 November 2006.
2	Noble v Police [2012] NZHC 800; Bidois v Police HC Hamilton CRI 2006-419-123, 31 October
2006.

[6]       The Judge then observed:

[6]        ... I note that when you appeared last time,   that is on your fourth conviction in 2003, because of the gap in the offending the Court has clearly tried a rehabilitative approach.   Supervision with special conditions was imposed to try to deal with your alcohol issue.   You just have one other conviction other than the drink-drive convictions.

[7]       The Judge then observed that the appellant was very regretful about the circumstances but he did not detect any real remorse for other people on the road whose lives the appellant endangers.  He noted the probation report observation that the appellant did not believe he had any problem with alcohol but that he was prepared to undertake intervention if he had to.

[8]       The  Judge  saw  no  personal  family  circumstances  that  mitigated  the offending. The maximum penalty of two years imprisonment is then referred to.

[9]       Given the above, the Judge observed that the starting point for the offending must be a term of imprisonment.  The Judge adopts a ten month starting point and then allows three months for the guilty plea.   That gave an indicative sentence of seven months imprisonment.

[10]     The Judge rejected home detention as insufficient to meet the purposes of denunciation and deterrence.  It would not be likely to promote your rehabilitation and particularly in his view, would not adequately protect the community.

Grounds

[11]     The appellant contends that there are numerous authorities, 3   both in the High

Court  and  the  District  Court  where  community  detention  has  been  imposed  in

3	Referring to Mudgway v Police HC Rotorua CRI 2009-463-65, 22 December 2009; Dennerly v
Police HC Auckland CRI 2009-404-54, 22 June 2009; Police v Eatwell DC Tauranga CRI 2009-
070-007991, 21 May 2010;  Police v Innes DC Nelson CRI 2009-009-018776, 18 May 2010; Police v Nand DC Waitakere CRI 2009-090-010538, 19 January 2010; Smith v Police DC Invercargill CRI 2010-025-000620,  21 May 2010; Police v Young  DC Invercargill CRI 2010-
025-005511, 11 February 2011;  Police v Rawson DC Invercargill  CRI 2011-025-001870, 27
September 2011;   Police v Hawke DC Invercargill CRI 2011-025-003615, 17 February 2012; Police v Balloch DC Invercargill CRI 2011-002-000538, 13 March 2012;  Police v Tamou  DC Gore CRI 2012-017-000213, 13 June 2012;   Police v Dokas DC Invercargill CRI 2012-025-
001353, 10 July 2012;   Police v Goulding DC Invercargill CRI 2012-025-003335, 15 March
2013; Police v Johnson DC Invercargill CRI 2013-025-000512, 2 May 2013.

comparable or more serious cases of recidivist drink driving.4    Conversely, counsel was confident that since 2007 there were no instances where imprisonment was imposed for comparable offending.  The case of Noble,5  relied upon by the Judge involved the additional aggravating feature that Mr Noble had been previously imprisoned for drink driving.

[12]     The appellant also refers to recent authority dealing with home detention and makes the point that principles and purposes of ss 7 and 8 of the Sentencing Act
2002 “do not accord greater weight to factors such as denunciation and deterrence than the personal circumstances of the offender.”6    Reference is also made to the observation in Manikpersadh v R7 where the Court emphasised that s 8 “also requires the Court to have regard to the least restrictive appropriate outcome [and] the offender’s personal circumstances including his personal and family background and
relevant rehabilitation.”

[13]     Given the foregoing the appellant submits in summary that accountability, denunciation and deterrence do not control or determine the decision whether to impose a sentence of home detention.  It is submitted that if an offender is a good candidate for home detention or community detention, the least restrictive outcome principle is the primary consideration.

[14]   The second ground of appeal is simply that sentence of seven months imprisonment was manifestly excessive.  It is submitted that a starting point of ten months imprisonment is high and an end sentence of seven months imprisonment is higher than in cases such as Bidois8  where a sentence of 12 months imprisonment was reduced to six months and Noble9  where a sentence of eight months imprisonment was reduced to six months.   Like Bidois and Noble, this was the
appellant’s fifth driving conviction.  Other cases are cited, said to be related to more

serious offending, where a similar sentence of six months was imposed.

4	Citing Mudgway, Dennerly, Innes, Young, Rawson, Balloch, Hawke, Tamou and Dokas
5	Noble v Police [2012] NZHC 800.
6	Citing Doolan v R [2011] NZCA 542 at 38.
7	Manikpersadh v R [2011] NZCA 452 at [16].
8	Bidois v Police HC Hamilton CRI 2006-419-123, 31 October 2006.
9	Noble v Police [2012] NZHC 800.

[15]     While  counsel  acknowledges  that  it  could  be  argued  that  the  difference between six and seven months imprisonment was not manifestly excessive, some of these additional cases were more serious.

The respondent’s position

[16]     The respondent reminded me that an appeal pursuant to s 116 and decided under s 121(3) of the Summary Proceedings Act 1957 is a general appeal with the approach set out in Yorston v Police10 at [13] and [14]:

(a)       There must be an error in the exercise of the lower Court’s original sentencing discretion:  the appeal must proceed on an error principle;

(b)       To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court;

(c)       It is only if an error of that character is involved that the appeal Court should re-exercise the sentencing discretion.

[17]   The respondent submits that there was no error, that the sentence of imprisonment was plainly available given the sentencing Judge’s conclusion as to the appropriateness of a custodial sentence, and that the custodial sentence was imposed for purposes beyond simple deterrence.   The respondent also submits that the extremely high level of breath alcohol (1266 micrograms of alcohol per litre of breath), the repetition and the lack of insight meant that a sentence of imprisonment was appropriate.

[18]     It is also submitted that there is no principle that a sentence in the next step up in the hierarchy of sentences should be tried before imposing a more severe
sentence - citing Ngaata v Police.11

10	Yorston v Police HC Auckland CRI 2010-404-164, 14 September 2010.
11	Ngaata v Police HC Wellington CRI 2010-485-73, 27 August 2010.

Assessment

[19]     It soon became clear in oral argument that the sentence of imprisonment for the offending was against the tide of sentences for similar offending since 2007, including two sentences by the sentencing Judge.   Mr Dawkins’ comprehensive review of applicable authorities strongly suggests that recidivist offending marked by lengthy gaps between offending might be expected to attract a sentence of home or community detention.   Mr Young for the Crown was unable to contend otherwise. Indeed no sentence since 2007 involves imprisonment for comparable offending, except Noble where the offender had been previously imprisoned.

[20]     In this case while there were five instances of drunk driving, two of them occurred when the offender was 19 and 22 in 1985 and 1988.   The next three instances occurred ten years apart in 1993, 2003 and 2013.   Plainly this is one of those case marked out by the lapse of time between offending.

[21]     There is therefore considerable force in Mr Dawkins’ submission that the Judge’s sentence is out of sync with the trend of sentencing on this type of offending. Regrettably the Judge was not taken to the comprehensive survey of authorities cited to me, so he could not be expected to frame his sentence in light of them or explain why he had chosen to buck the trend.  In those somewhat unusual circumstances, and given the disparity between his sentence and the trend of sentences, I consider that the Judge erred by concluding that the starting point “must be a term of imprisonment”.  It is therefore appropriate for me to apply my own assessment of the facts.

[22]     I note  for  completeness  that  Mr Young  surmised  that  the Judge  did  not consider that the appellant was suitable for community detention given his personal circumstances.  That might be so, but it is not expressly recorded in the judgment and I do not think it is safe for me to assume that is correct.

[23]     In terms of fixing a sentence it is relevant that the offending over the last 20 years has been separated by ten year gaps.  Therefore while Mr Carran is a recidivist offender, he does not fall into that category of a repeat offender that exhibits contumelious  disregard  for  the  drink  driving  laws.    Balanced  against  this,  the

probation report assesses Mr Carran as a moderate to high risk of harm to others given he is prepared to drive while intoxicated.  The report also notes that given the high reading of breath alcohol content and that this is his fifth charge, a sentence of imprisonment is recommended.

[24]     Turning then to the potentially aggravating factors listed in Clotworthy, the level  of  the  breath  alcohol,  1266  micrograms  or  three  times  the  limit,  is  a significantly aggravating factor.  The length of time between offending means that a potentially aggravating factor is absent.   Only the very early convictions were in close succession, so I do not count that as an aggravating factor.   The manner of driving was, perhaps fortuitously innocuous; he was not disqualified while driving; he  gave  an  early  plea;  his  previous  sentences  have  not  included  imprisonment (though a sentence of supervision was imposed on the last offending); and his other limited offending is irrelevant.  In summary, a number of the Clotworthy aggravating factors are not present.

[25]   Relevant personal factors include that the appellant is a farmer and imprisonment or home detention would plainly impact on his ability to run the farm. The probation report says that his wife would have to stay to manage the farm.  But that would mean she would have to give up her usual employment from June to September on the pre-lambing shearing in Ranfurly.  The probation report also says he “takes responsibility in that he is prepared to accept the punishment handed out by the Court.”  He is also prepared to undertake alcohol and drug related courses if instructed.

[26]     The purposes and principles of the Sentencing Act most obviously in play are the need to denounce and deter this offending, rehabilitation and the requirement to impose the least restrictive sentence.   I am also mindful of the importance of maintaining consistency between sentences involving similar offending.

[27]     Given  the  recidivist  nature  of  the  offending,  a  term  of  imprisonment  is properly within the frame of sentences that might be imposed.   The principles of denunciation and deterrence must resonate strongly in this context.  The level of the intoxication is alarming, and a strong factor in favour of imprisonment.  The litany

therefore of sentences of community detention for comparable offending should not be seen as in any way compelling that result.  The focal point of the analysis remains a discretionary assessment of the suitability of sentence having regard to the specific facts of this case.  Having said that, a clear trend in approach to sentencing cannot be ignored  given  the  common  law  principle  of  treating  like  with  like,  and  the Sentencing Act principle just mentioned.

[28]     I have come to the view, by a slim margin, that the appellant should be given community detention.   The considerable gap between his drink driving offending, and the absence of several of the Clotworthy aggravating factors, suggest to me that community detention is a proportionate response.  Conversely had there been more than one seriously aggravating factor, I would have had little hesitation in imposing a sentence of imprisonment.  This should also serve as a warning to the appellant that further offending of this kind would likely result in a term of imprisonment.

[29]     Accordingly  I  propose  to  replace  the  sentence  of  imprisonment  with  a sentence of community detention for a period of six months and subject to the conditions set out in the probation report.

[30]     This judgment will lie in Court for two working days to provide counsel with an opportunity to report to the Court on the proposed term, the suitability of the conditions and/or whether other conditions might be appropriate.

Addendum

[31]     After receiving submission of counsel, the term of the Community detention shall be four months to take into account time served.   The conditions shall be as specified by probation but with the start date to be fixed by probation.

Solicitors:
W D Dawkins, Invercargill
Preston Russell Law, Invercargill