Wawatai v Police HC Gisborne Cri-2010-416-9

[2011] NZHC 22

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI-2010-416-000009

BETWEEN  RENATA WAWATAI Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         2 February 2011

Appearances: M Webster for Appellant

J Lucas for Crown

Judgment:      2 February 2011

ORAL JUDGMENT OF VENNING J

Solicitors:           Crown Solicitor, Napier

Copy to:            Sainsbury Logan & Williams, Napier

WAWATAI V NEW ZEALAND POLICE HC GIS CRI-2010-416-000009 2 February 2011

[1]      On 19 November 2010, having pleaded guilty to a charge of driving with excess breath alcohol for a fifth time, the appellant was sentenced to 200 hours community work and disqualified from holding or obtaining a driver’s licence for 16 months.

[2]      The appellant appeals against the sentence imposed on the ground that the sentence was manifestly excessive both as to the community work and the length of disqualification.

[3]      The appellant was stopped on 25 September 2010 at a routine check point. He had a breath alcohol level of 479 micrograms of alcohol per litre of breath.  As noted this was his fifth conviction for driving with excess breath alcohol.   There were two previous convictions, in 1979, one in 1981 and one in 1982.   As Mr Webster noted, 28 years has passed since the most recent previous conviction.

[4]      In sentencing the Judge said the breath alcohol reading was moderate and regarded the fact the conviction was the appellant’s fifth as his biggest problem.  But for the age of the earlier convictions the Judge noted he would have imposed a sentence of imprisonment.

[5]      In support of the appeal Mr Webster has submitted that both aspects of the sentence can properly be described as manifestly excessive and should be adjusted, primarily because of the historical nature of the previous convictions.

[6]      Mr Webster referred to s 9(1) of the Sentencing Act which requires the Court to consider the number, seriousness, date, relevance and nature of any previous convictions of the offender.  He submitted that the previous driving offences in this case were only pertinent to the construction of the charge and more directly the minimum term  of disqualification  required  but  were not  so  relevant  as  to  be a substantive aggravating feature of the offence.

[7]      For the Crown Mr Lucas has submitted that the sentence imposed, whilst stern, could not be said to be manifestly excessive.  He notes that there is no tariff for sentencing in these cases and the District Court Judge and the Court must take

account of the fact that this is the appellant’s fifth such offence.  Mr Lucas submitted the appellant could have been sentenced to imprisonment or at the very least a form of home or community detention.

[8]      Both counsel referred to a number of authorities.  In addition to referring to the decisions of Clothworthy v Police[1]  and R v Stone[2]  counsel referred variously to Smith v Police;[3] Police v De Weyer;[4] Ewart v Police[5] and cases referred to therein.

[1] Clothworthy v Police (2003) 20 CRNZ 439 (HC).

[2] R v Stone [2009] NZCA 539.

[3] R v Smith HC Whangarei CRI-2007-488-64, 5 May 2008.

[4] Police v De Weyer HC Whangarei CRI-2005-488-000020, 22 April 2005.

[5] Ewart v Police HC Wellington CRI-2009-485-99, 30 September 2009.

[9]      In relation to the matters identified in Clotworthy as relevant I note that the breath  alcohol  level  in  this  case  at  479  could  properly be  described  as  low  to moderate.   A significant period of time has elapsed since the last drink driving conviction as Mr Webster has submitted.  There appears to have been nothing in the nature of the appellant’s driving which was of concern in that he was stopped at a routine checkpoint.

[10]     There  were  no  aggravating  features  of  the  particular  offending  such  as driving whilst disqualified or while subject to any other form of supervision or sentence.

[11]     The guilty pleas were entered at an early stage.  The appellant has previous convictions for other offending unrelated to drink driving offences, the last of which was a sentence for receiving in 2001.

[12]     The  sentence  available  to  the  District  Court  Judge  in  this  case  was  a maximum term of imprisonment of two years, a fine of $6,000 and of course a minimum mandatory period of disqualification of one year.

[13]     I have considered the various cases referred to by counsel.  They are of some assistance by way of comparison, in particular the case of Ewart.   Mr Ewart was sentenced  to  100  hours’  community  work,  a  $1250  fine  and  nine  months’

supervision.  He was disqualified for 15 months.   It was his fifth such conviction.

He had three previous convictions in the 1980’s and a fourth in 2001.  In that case Dobson J allowed the appeal but only in relation to the sentence of supervision which he reduced.

[14]     Dobson J accepted that despite the fact Mr Ewart’s previous convictions were relatively old, the Judge had taken that into account by not imposing a sentence of imprisonment.  Further leniency was not justified.

[15]     In coming to that decision the Judge referred to a number of other decisions, including Brough v Police.[6]    The appellant there had been convicted with a breath alcohol reading of 574 .  He had two previous convictions.  A sentence of 200 hours’ community work and 16 months’ disqualification was imposed.  Given the length of time between the convictions and the moderate reading the Judge reduced the community service to 120 hours and the disqualification to 14 months.

[6] Brough v Police HC Auckland CRI-2004-404-071, 24 August 2004.

[16]     I have also been assisted by reference to the review of the trends of periods of disqualification imposed or considered by the Court of Appeal in R v Stone.[7]   While accepting the conclusion that there is no correlation to be drawn between the number of convictions and the period of disqualifications imposed the case confirms 16 months was within a broad band available to the Judge.

[7] R v Stone [2009] NZCA 539.

[17]     In the present case, while the date of the previous convictions affect their relevance as Mr Webster has submitted, equally as Mr Lucas has submitted, I accept the fact that this is a fifth conviction and the appellant has four previous convictions, is of itself a relevant factor in determining the appropriate sentence.

[18]     In this case, given the minimum period of disqualification of 12 months required for a third or subsequent offence, and given that this was a fifth such offence, I am not prepared to say that the period of disqualification of 16 months was

manifestly excessive.

[19]     As the full Court of the High Court observed in McEachen v Police[8]  the period of disqualification serves two purposes.  It is not just a punishment but is also a means of protecting the public from further drunken driving.  For whatever reason this appellant has shown he has a propensity to drive after drinking.   He has not offended in that way for a number of years but his previous convictions remain relevant.  I decline to interfere with the period of disqualification of 16 months.

[8] McEachen v Police (2003) 20 CRNZ 439 (HC).

[20]     That  leaves  the  appeal  in  relation  to  the  community  work.     In  the circumstances of this case I accept Mr Webster’s submission that in fixing a community work sentence of 200 hours, the Judge has failed to give sufficient weight to the length of time that has lapsed since the previous convictions.

[21]     Given that length of time that has lapsed I do not consider that a period of imprisonment was at all likely or open to the Judge.   In addition, given the surrounding circumstances of the offending, the low to moderate reading of itself, that there was no aggravating feature in relation to the driving and that there were no other relevant aggravating circumstances relating to the offending, I accept Mr Webster’s submission that the community work of 200 hours could be described as manifestly excessive.  A sentence of 100 hours’ community work would have been appropriate.

[22]     To that extent the appeal is allowed.  The sentence of 200 hours’ community work is substituted with a sentence of 100 hours’ community work, but, as noted, and  for  the  previous  reasons,  the  appeal  in  relation  to  the  minimum  period  of

disqualification is dismissed.

Venning J