IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-000390 [2015] NZHC 430

BETWEEN	PATRICIA MARTINA DOUGHTY
Appellant	

AND	
NEW ZEALAND POLICE Respondent	

Hearing:	10 March 2015	

Appearances:	
J A G Moroney for Appellant
S L McKone for Respondent	

Judgment:	
11 March 2015	

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 11 March 2015 at 12.00 noon
pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date………………………..

DOUGHTY v NZ POLICE [2015] NZHC 430 [11 March 2015]

Introduction

[1]       On the morning of 28 October 2014 Patricia Doughty made a right hand turn out onto Glenfield Rd and collided with a Holden motor vehicle.  She failed to stop. The driver of the Holden followed her.  She was seen to drive through a red light and eventually turn into the carpark of a McDonalds Restaurant where she collided with the Holden a second time while trying to park her vehicle.  Ms Doughty got out of her car and behaved aggressively, causing a concerned member of the public to take her keys and call the Police.  She was found to have 1417 micrograms of alcohol per litre of breath.

[2]       Ms Doughty entered an early guilty plea.  She acknowledged that she had a serious alcohol problem.  She had one previous conviction for driving with excess breath alcohol entered in 2004.  Judge Simpson imposed a sentence of 12 months’ supervision with a condition requiring Ms Doughty to undertake assessment and treatment for alcohol abuse and, in addition, 300 hours of community work and
18 months’ disqualification.

[3]       Ms Doughty appeals the community work and disqualification components of the sentence on the grounds that they were manifestly excessive as a result of the Judge failing to give adequate weight to her personal circumstances, failing to have regard to comparable cases and failing to have regard to s 13 of the Sentencing Act.

Sentencing in the District Court

[4]       The sentencing took place in a busy List Court and the Judge sentenced without the benefit of a pre-sentence report.  Counsel appearing at sentencing (who was  not  the  counsel  appearing  on  the  appeal)  did  address  the  Judge  regarding Ms Doughty’s personal circumstances, advising that Ms Doughty had been a long- term member of Alcoholics Anonymous, had suffered a relapse and had enrolled in CADS.  Counsel also pointed out that Ms Doughty had one previous conviction from some ten years earlier, held a responsible job and had offered full reparation. However, the transcript shows that these submissions were very brief and no additional information was provided or sought.

[5]       The Judge’s sentencing notes reflect the summary nature of the hearing and the limited information available to the Judge:

Ms Doughty, it was a very high breath alcohol count suggesting a major problem in your life but I give you credit for the fact that you have done something about it and you are continuing to do something about it and it is really going to require a life time of vigilance on your part I think. You have a previous conviction for driving with excess breath alcohol, that is some years ago now, in 2004 you were sentenced to community work.

Today I have considered how to deal with you.  I am prepared to deal with the matter today because I think that things are quite obvious, that you are an alcoholic and that you are doing something about and I accept that you aware of the problem.  It is obviously of great concern to the public, as you know, a member of the public intervened in your situation and furthermore, you were so affected by alcohol that you were taken into the mental health unit where you remained for some days until you could be detoxed and your real personality could emerge.

[6]       After imposing the sentence of supervision (which is not under challenge) the

Judge  went  on  to  impose  the  sentences  of  300  hours  of  community  work  and

18 months’ disqualification.

Ms Doughty’s personal circumstances

[7]     Mr Moroney, for Mrs Doughty, submitted that Mrs Doughty’s personal circumstances and relevant mitigating factors were not adequately brought to the Judge’s attention.  He advised, without challenge, that Ms Doughty had been sober for six years prior to the incident, that the offending coincided with her marriage ending and that she was on anti-depressant medication at the time of the offending. Ms Doughty is now a single mother and sole caregiver for her 15-year-old son.  She works  fulltime  as  a  sales  representative  and  has  no  immediate  family  in  New Zealand to support her.  The extended sick leave she was forced to take following the offending was spent at the Taharoto Mental Health Unit with the result that she could not meet her mortgage payments and was forced to sell her house.  Her employment requires her to travel and the disqualification will be a hardship, though Mr Moroney acknowledged that she would be able to apply for a limited licence.

[8]       These circumstances were all available to have been placed before the Judge but it seems that the lack of a pre-sentence report and the business of the court on the day of sentencing resulted in the opportunity being missed.

Was the sentence manifestly excessive?

[9]       I accept immediately that the Judge sentenced without the benefit of the additional information that is now before the Court.   I am satisfied that had this further information been available the Judge may very well have taken a different attitude to what an appropriate sentence was.  This includes the possibility of a fine being considered rather than community work.  Although the Crown’s position was that greater knowledge by the Judge of Ms Doughty’s personal circumstances would not have made any difference to the end sentence, Ms McKone did accept that the more usual response to a second drink-driving offence is a fine, as opposed to community work.  She accepted, too, that a community work sentence of 300 hours could be regarded as severe based on the other similar cases.

[10]     Second drink-driving offences are commonly dealt with by way of a fine and disqualification, though for serious offending community work coupled with disqualification is certainly open to a sentencing judge.   There is assistance in the decisions of Clotworthy v Police1 and R v Stone2 in relation to sentencing for repeat EBA offenders and the Judge identified most of the relevant factors identified in Clotworthy; the very high breath alcohol reading, the ten years between convictions,
the careless driving, acceptance of responsibility and genuine remorse.  However, as a result  of the limited information  placed  before the Judge she did  not  have a complete understanding of the circumstances that I have outlined above.

[11]     Although  the  offending  was  serious,  I  consider  that  the  300  hours  of community work imposed was too high and out of line with other similar cases, which tend to indicate a fine as being more appropriate than community work for a second offence of this kind.  Counsel did not cite any case in which a community work  sentence  of  300  hours  had  been  imposed.    Likewise,  disqualification  of
18 months is very much at the top end of the range and too high when coupled with community work.

[12]     In terms of the seriousness of the offending the most similar cases appear to be Rogers v Police3 and Singh v Police.4   Rogers involved a second EBA conviction with the appellant at 3.5 times the blood alcohol limit.  There was no community work sentence imposed and an appeal against the two year disqualification was upheld with the period reduced to 15 months.  In Singh v Police the appellant had a breath alcohol reading of nearly three times the legal amount.  A sentence of 240
hours community work and 15 months’ disqualification was reduced to 200 hours of community  work  and  12  months’ disqualification.    This  was,  however,  a  first offence.

[13]     It is accepted that the Judge did not specifically refer to s 13 in sentencing. However, Ms McKone submitted that the present case would not have been appropriate for a fine because a fine would not achieve the purpose for which the community work sentence was imposed i.e. accountability, protection of the public and  deterrence  in  light  of  the  very  high  breach  alcohol  reading  and  dangerous driving, and the fact that it was Ms Doughty’s second conviction.  I do not accept this analysis.

[14]     It is evident that Ms Doughty has taken responsibility for her actions and taken immediate steps to address the re-emergence of her problem with alcohol.  It is significant that she functioned for more than 10 years without any further offending and that the present offending coincided with the break-up of her marriage.  All the indications are that she is motivated to take control of herself again and that personal deterrence  is  not  a significant  issue.    Protection  of the public does  not  require community work as opposed to a fine.  Further Ms Doughty’s time commitments as a result of the sentence of supervision, her full-time work and her responsibilities for her son make a sentence of community work disproportionately severe.

[15]     In the circumstances I consider that the sentences of community work and

18 months disqualification were manifestly excessive.

Result

[16]	The sentence of community work is quashed and substituted with a fine of

$2,000.

[17]	The sentence of 18 months’ disqualification is quashed and substituted with a one of 15 months’ disqualification.

P Courtney J