Poulson v Police

[2016] NZHC 2166

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI 2016-442-13 [2016] NZHC 2166

BETWEEN

CORI MARTIN POULSON

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	13 September 2016
Counsel:	T H A Spear for Appellant S J Revell for Respondent
Judgment:	13 September 2016

JUDGMENT OF SIMON FRANCE J

[1]      Mr Poulson appeals a sentence of nine months’ imprisonment imposed in relation to one charge of driving with a zero alcohol licence, whilst having a breath alcohol level of 295 mg.  The other charge was dangerous driving reflecting the fact that while over the alcohol limit Mr Poulson was driving at 176 kph.  His 14 year old

son was a passenger.1

[2]      Mr Poulson is 36 years old.  He has four previous drink driving offences – in

2000 (breath, 627 mg); in 2003 (breath, 941 mg); in 2010 (breath, 869 mg); and in

2012 (blood, 203 ml).   On the occasion of the 2012 offence he was sentenced to three months’ community detention, one year intensive supervision and disqualified indefinitely.  He subsequently obtained a licence but with a zero alcohol condition.

Mr Poulson was in employment but lost his work as a result of this offending.

1      NZ Police v Poulson [2016] NZDC 12395.

[3]      The penalty for alcohol related driving while on a zero alcohol licence varies with level of alcohol:2

(a)       up to 250 mg, maximum of three months’ imprisonment and $2,250

fine;

(b)over 250 mg, maximum of two years’ imprisonment and a $6,000 fine.

[4]      A reading of 250 mg is the level at which offending now starts for those with a full licence.  It is punishable by a fine.  The much higher maximum penalty for the same level for zero rated licences no doubt reflects the circumstances that have led a driver to have a zero alcohol licence – namely, similar past offending.

[5]      The sentencing Judge took a starting point of 12 months’ imprisonment for all the  offending.    The  aggravating  factors  in  addition  to  the  drink  driving  were identified as:

(a)       the speed;

(b)      the risk created to his son, and other road users; and

(c)       the previous drink driving offending.

[6]      Credit was given for Mr Poulson’s guilty plea leaving a final sentence of nine months’  imprisonment.     The  Judge  declined  home  detention.     It  was  noted Mr Poulson had previously been sentenced to community detention and supervision. The  purposes  of  sentencing,  in  particular  deterrence  and  protection   of  the community, would not be met by a sentence less than imprisonment.

[7]      On appeal it is submitted the starting point is excessive and pays insufficient regard to the particular drink driving offence.   It is said the Court has sentenced

Mr Poulson as if he had committed a fifth serious drink driving offence akin to the

2      Land Transport Act 1998, s 57AA.

previous four.   However, the level was barely above that permissible for ordinary licences and would attract only an administrative fine in such circumstances. Accepting that Mr Poulson is within the more serious of the two zero alcohol licence offences, it is nevertheless submitted that regard had to be had to the low level.  The offending should therefore be seen as much less serious than Mr Poulson’s previous offences,  rather than be  treated as  a next  instalment  (my term)  of a  pattern of offending.

[8]      The submission in my view overstates the difference in the various offences. The maximum penalty for a zero alcohol licence when the alcohol level is over

250 mg  is  the  same  penalty as  applies  to  a  third  and  subsequent  drink  driving offences on a full licence.   As the Judge said, this penalty structure indicates the seriousness with which the present offence is viewed.

[9]      I agree, however, that the dramatic change in maximum penalty at the 250 mg level  suggests  a  sentencing  spectrum  reflecting  the  actual  level  of  alcohol  will emerge over time.   Consistent with that, I accept that the 294 mg reading comes towards the bottom of the offence, and this should be recognised in the starting point. Mr Poulson’s  history  of  drinking  driving  offending,  and  the  dangerous  driving charge would both still need to be factored in.  As regards the former, for sentencing purposes a zero alcohol licence and offending against this provision does not draw a curtain over the past offending history in terms of its relevance to the penalty: an uplift may still be appropriate.

[10]   The dangerous driving charge carries a maximum of three months’ imprisonment.  Here the dangerous driving involved only speed, but also included the specific danger to his son as well as the wider driving community.   Given the maximum penalty, an uplift of four weeks was the most available.  That would mean the Judge must have taken an aggravated starting point of 11 months’ for the drink driving offence.  From a maximum penalty of two years’ imprisonment and given the very low reading, I accept that was an excessive starting point.

[11]     Taking a stern approach but bearing in mind it is a first jail sentence, I consider six months was the appropriate starting point.   To that must be added a penalty for dangerous driving and some uplift for his previous offending history.  I consider the final starting point should be eight months with a two month reduction for the guilty plea.  The final sentence will therefore be six months.  Given the time Mr Poulson has already served, he will be eligible for release soon. Accordingly, the issue of home detention does not require consideration.

Conclusion

[12]     The appeal is allowed.   The sentence of nine months is quashed and in its place I substitute a sentence of  six  months’ imprisonment.   The balance of the

original sentence is otherwise unchanged.

Simon France J