IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY CRI [2013] NZHC NEW ZEALAND POLICE Respondent JUDGMENT OF BREWER J

Transcription

1 IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY CRI [2013] NZHC 2758 BETWEEN AND TAHAKURA KAMAKORE RAWHERA AWHIOWHIO KOHU Appellant NEW ZEALAND POLICE Respondent Hearing: 16 October 2013 Counsel: NM Dutch for Appellant JJ Rhodes for Respondent Judgment: 22 October 2013 JUDGMENT OF BREWER J This judgment was delivered by me on 22 October 2013 at 1:30 pm pursuant to Rule 11.5 High Court Rules. Registrar/Deputy Registrar Solicitors/Counsel: NM Dutch (Tauranga) for Appellant Ronayne Hollister-Jones Lellman (Tauranga) for Respondent KOHU v POLICE [2013] NZHC 2758 [22 October 2013]

2 Introduction [1] On 10 December 2012 in the District Court at Tauranga, Judge A-M J Bouchier convicted Mr Kohu on two charges arising out of an incident on 1 January One of the charges was driving with excess breath alcohol (third or subsequent) and the second was driving while disqualified (second or subsequent). [2] On 24 June 2013, Judge R P Wolff sentenced the appellant to 15 months imprisonment on these charges. The District Court Judge also sentenced the appellant to 12 months imprisonment on a further charge of driving while disqualified. All of these sentences were to be served concurrently with each other. [3] Judge Wolff also had to sentence the appellant on a charge of breach of bail (the appellant was released on bail following his conviction by Judge Bouchier but failed to appear for sentencing) and one charge of shoplifting. Judge Wolff imposed a sentence of one month s imprisonment on each of those charges, with the sentences to be served concurrently with each other but cumulatively upon the other charges. That resulted in an effective sentence of 16 months imprisonment. [4] The appellant now appeals the convictions entered by Judge Bouchier and, if his appeal fails, the sentences imposed by Judge Wolff. The appeals against conviction [5] The appellant pleaded not guilty to the charges of driving with excess breath alcohol and driving while disqualified. The trial took place on 10 December The appeals against conviction proceed on two grounds: (a) the District Court Judge erred in finding there was sufficient evidence that the appellant was driving; (b) the evidence of the evidential breath test was inadmissible. [6] The evidence called before the District Court Judge was that on 1 January 2012, at approximately 1:00 am, police officers manning a vehicle checkpoint in Tauranga saw an approaching car stop, and then turn into a driveway. Constables Balfour and McKay, who were closest, at once went to investigate. They found the car stopped down the end of the driveway. There was no-one in the driver s seat.

3 There was a man sitting in the front passenger s seat. He was wearing a Mongrel Mob patch and soon became verbally aggressive. There were four people in the rear seat two females (closest to the left rear door) and two males, one of whom was the appellant. [7] Constable Balfour asked who was driving and all occupants of the car said they did not know. Constable Balfour called for back-up and within a minute to two minutes Senior Constable Smith arrived. The occupants were still in the car. He gave evidence: 1 A. I recall two females and two males being in the back seat and the two males were intertwined. The [appellant] is one of those males that were intertwined in the back seat there. Q. What do you mean by that? A. They were there in unnatural positions suggesting that they d come from the front and an awkward position that you wouldn t normally seat. Feet were over the, the handbrake area and there was a shuffle around in the back to try and make that fit. There was room if you actually intentionally tried to get four people in that seat, it would be uncomfortable but you d still have your feet on the ground. Q. Can you just describe the body positions again? A. The, the two females were scrunched up on the left-hand side and the two makes were directly behind the driver s seat. Their feet were instead of being in the foot well behind the driver s seat. They were all scrunched up with legs on the handbrake sort of area, in a hurry to try and get back? [8] In cross-examination, Senior Constable Smith accepted that the other male in the back seat was actually on top of the appellant. He elaborated: 2 A. No I said they were intertwined and that [the appellant s] feet were weirdly placed and when I saw them, I believed that he had made room for [the appellant] and through that impression that I got that [the appellant] was the driver. [9] Another constable, Constable Perrott, arrived at about the same time as Senior Constable Smith. His evidence was that when he arrived the driver of the vehicle had not been identified. He made an entry to that effect in his notebook. 1 2 Notes of evidence taken before Judge A-M J Bouchier on 10 December 2012, at p 3. Ibid, at p 11.

4 [10] At some stage after Senior Constable Smith arrived, the appellant admitted that he was the driver. He told Senior Constable Smith that he had got into the back seat because he was a disqualified driver. Constable Balfour then took charge of the appellant and administered an evidential breath screening test. The appellant failed the test and so the constable required him to accompany her for an evidential breath test, blood test or both. The testing procedure is the subject of a separate ground of appeal and I will come back to it later. What is relevant to note now is that during this period at the booze bus, the appellant again told Constable Balfour that he was the driver. He repeated this in the car on the way to the Police Station, having failed the evidential breath test. He said: 3 I shouldn t have driven, I know it was wrong but everyone else would have been dead. [11] At the Police Station, and for the fourth time, the appellant told Constable Balfour he was the driver. Later, however, he denied it. [12] It is also relevant that when the appellant made his admission of driving while in the booze bus, he repeated that he was a disqualified driver. The constable checked and found this was so. [13] The appellant gave evidence at his trial and said that he was not the driver. He said there had been another person driving the car who had run away and escaped through a hedge before the Police arrived. [14] The appellant s evidence was that he had walked to a party with his then girlfriend. At some stage he had got into the back seat of the car with his girlfriend for a ride to town. The other two people in the back seat were his girlfriend s brother and the brother s girlfriend. [15] The appellant said he was not too sure who the driver was. He had seen him around before. At the time, he did not really know the front seat passenger and had not met him before. He did not remember his girlfriend s brother being 3 Ibid, at p 19.

5 seated on top of him, and did not think that that had happened, cos he s big, he, he ll squash everyone. He s a lot bigger than me anyway. [16] When asked why he admitted to being the driver, the appellant said: 4 A. Um, there was a time there when, um, [the front seat passenger] was like pointing at me saying it was me and I think that might have had like a bit of... pressure and plus Q. Was he A. plus I just kept hearing that same question over and over and I was quite intoxicated and I just wanted to, you know, I ve been in a lot of trouble in my life and I just wanted to get out of there. Q. What do you mean, you wanted to get out of there Mr Kohu? A. Um, I just wanted to go home. Q. Who was asking you the questions? A. Um, the police officers. Q. Which one? Any of them, one of them, all of them? A. Um, I can t recall exactly. Q. So you said [the front seat passenger] was pointing at you? A. Yeah. Q. Was he wearing a Mongrel Mob patch? A. Um, I think so, yeah, well I ve heard, yeah. Q. What was his behaviour like when he was doing that? A. Um, well he seemed like he was agitated or, you know, pretty... Q. Why you were taken from the vehicle then? A. Um, yeah, yeah. Q. And were you taken back to the booze bus were you? A. Yeah. Q. And then were you taken back to the Tauranga South Police Station? A. Yep. 4 Ibid, at pp

6 Q. Now you ve heard the officers say that you again said you were the driver and that the others would have been dead or something like that. Why did you keep saying that if you weren t the driver? A. Um, because I was drunk and I just stupid and I guess I thought the, yeah. I was really drunk; I must ve thought I was cool. (a) Insufficient evidence that appellant the driver [17] The appellant submits that Judge Bouchier, in assessing the credibility of the appellant s account that he was not the driver, misdirected herself on significant facts. The submission is that had Judge Bouchier not made these factual errors, she would have found there was a reasonable possibility that the appellant was not the driver of the vehicle. Such a finding would have necessarily led to the acquittal of the appellant on both charges. [18] The two errors, submitted to exist, relate to how quickly the Police came to the car in which the appellant was found and the constraints of the immediate physical environment on the ability of the mystery driver to escape during that time. [19] The decision of Judge Bouchier on this issue is as follows: 5 [5] Looking at the evidence of the issue of whether the defendant was the driver. First of all I heard from Constable Smith. On this date it appeared that there was a large checkpoint set up in the area of 15 th Avenue and Cameron Road in Tauranga. The reason that was chosen, Constable Smith said, was because checkpoints can be at the four different points leading into it, there is limited ability to escape, and an escape is easily detected. He was situated on Cameron Road and Devonport Road and at approximately 1.00 pm (sic) heard a call from Constable Balfour asking for assistance. It sounded urgent. Some attempts are made to find Constable Balfour; he could not find her. He then subsequently saw a torch flash down a long driveway and when he got down that driveway Constable Balfour was there. [6] There were five occupants in a vehicle one person known as Darrell Rikiti who was in the front left-hand passenger s seat; no one in the driver s seat; and four persons in the back seat. There were two males, two females. The two males were intertwined in an awkward position. The two males were directly behind the driver s seat. The legs of one were on the handbrake area, not in the foot well. He gained the impression that one of them, who was the defendant, had gotten over. Mr Rikiti, he says, is a patched Mongrel Mob member who was in the front of the car. Then he said the defendant said he was the driver, referring to himself, and that he had got 5 Police v Kohu DC Tauranga CRI , 10 December 2012.

7 into the back seat because he was a disqualified driver. There was another constable there, Constable McKay. [7] Constable Smith said it took him less than a minute to get there, down the long driveway. It was impossible to escape from this property. It was well surrounded by high walls. Surrounding the address he said on the left-hand side there were some small decorative shrubs and on the right-hand side there was a hedge and then quite a high fence. The hedge was quite solid and the exit was on Cameron Road. He was unable to do any notes at the time because he had broken his hand at that time. He said the position of the parties in the back was an unnatural position and the defendant s feet were weirdly placed. [8] I then heard from Constable Balfour who was on this traffic alcohol group compulsory breath test checkpoint. At about 1.10 am she observed a Nissan car registration ELQ903 travelling north on Cameron Road. The vehicle stopped short of the checkpoint and went down a driveway. She followed, on foot, approaching the vehicle from the driver s side. Five people were in the vehicle. There was no one in the driver s seat. She asked, who was the driver of the vehicle? A male in the rear of the vehicle stated he was the driver and gave the name of the defendant. She identified him today. She then gave evidence regarding the evidential breath test procedure. [20] Mr Dutch submits that the District Court Judge erred in ignoring the relevant part of the cross-examination of Senior Constable Smith. This is as follows: 6 Q. So the distance between you and where the vehicle was and Constable Balfour was at least 200 metres? A. Correct. Q. Before once you received the call from Constable Balfour, there were attempts made to locate her? A. Correct. Q. And then it wasn t until after those attempts were made to locate her that you decide to hop into your patrol car? A. Correct. Q. So this would have taken longer than one minute to get to that address, 200 metres away at least, after enquiries were made in terms of Ms Balfour s whereabouts wouldn t it? A. It d be within one or two. Be it wouldn t have been less than one but it wouldn t have been more than two. Q. Now the where the car was parked, that was down quite a long driveway wasn t it? 6 Notes of evidence taken before Judge A-M J Bouchier, above n 1, at pp 7-9.

8 A. Correct. Q. And the car was parked right down the end of that long driveway? A. Very near. Q. And surrounding that address there are a number of bushes and trees aren t there? A. Yes. Q. And a number of other houses surrounding that address? A. It, it appears that from the air but when you go from the front there s from memory there s a fence that leads down to that driveway that goes down the long driveway that you re talking about and on the lefthand side there s a number of small ornamental shrubs and on the right-hand side there s a hedgerow that encompasses a large fence. Q. But there s a hedge isn t there? A. It s about less than a foot thick to the middle of the where the fence is. Q. So if someone wanted to run they certainly could couldn t they? A. Yes they could, back out to the road again. Q. Or over the fence? A. No, it s quite high. Q. Someone could ve jumped that fence. I m looking at it right now constable? A. It s, yes I mean nothing s impossible. If I had a good reason to get over it, I, I probably could. Q. Or they could ve gone through the hedge? A. Not through it. It, it s quite solid later on, in that particular part of the driveway, it s quite solid. The avenues of exit from that area is generally back onto Cameron Road. There s very few places to go other than Cameron Road from that address. [21] The point of the submission for the appellant is that the District Court Judge appears to have accepted wrongly as specific evidence against there being a mystery driver the evidence-in-chief of Senior Constable Smith, i.e. that he arrived at the car in less than a minute and that the driver would have been prevented by the fence/hedge from escaping.

9 [22] Mr Rhodes for the respondent submits that not only does the evidence referred to by Mr Dutch fail to bear the weight for which Mr Dutch contends, they are fairly minor points and were not material to the decision made by the District Court Judge. In Mr Rhodes s submission, the Judge s finding on credibility was clearly founded on other matters. [23] Mr Rhodes submits that the District Court Judge placed evident weight on the admissions made by the appellant that he was the driver. These admissions were made initially while in the presence of the front seat passenger, a patched member of the Mongrel Mob. 7 Significantly, they were repeated when the appellant was alone with the Police. The Judge said: 8 [18] As opposed to what the defendant tells me today, that he did not know this person, looked familiar, seen him around, this person ran off through the hedge, he saw where he went and a male officer going that way. Darrell Rikiti, who he said appeared to be saying that he should say he was the driver, he then later said that he did not know who Darrell Rikiti was at the time. Well if he did not know who Darrell Rikiti was at the time I find it somewhat surprising then that he would be intimidated by anything this person said. I have gone through the defendant s evidence and noted five points where I consider in my view that the just so happened arises. It just so happens to arise at all the pertinent points that the defendant did not know who this driver was, suddenly gets so-called frightened by Mr Rikiti, then says he did not know him and the person running off into the hedge. Again, I have the evidence of Constable Smith that the property was surrounded by a high wall and that the hedge was thick. [19] So the credibility that I accept is that of the police officers. I do not accept the credibility of the defendant. As I say, it is the five just happens that I have counted which certainly sway me towards preferring the evidence of the police officers rather than the defendant with, of course, the added little factor of the fact that he was 1051 micrograms of alcohol per litre of breath at the time. [20] Accordingly, having made those findings of credibility I am satisfied that the defendant was the driver of the vehicle with the excess breathalcohol, which is to say I found proven according to the requirements of Aylwin v Police. [24] Mr Dutch adds to his submission that the District Court Judge did not make it clear what the five just so happens points are. 7 8 Although the appellant was unsure whether the front seat passenger was wearing a patch, Senior Constable Smith s evidence is that he was. Ibid.

10 Discussion [25] The case against the appellant was based on his admissions that he was the driver. These admissions were made first while at the car, after an initial period of denial. They were repeated on three occasions after he had left the scene. Initially, he told Senior Constable Smith that he had got into the back seat because he is a disqualified driver. That is so. Later, to Constable Balfour, he said that he knew it was wrong for him to drive but everyone else would have been dead presumably a reference to perceived relative levels of intoxication. [26] The task for the District Court Judge was to determine whether the prosecution had proved there was no reasonable possibility that the appellant s evidence was true. That required considering his evidence against the other evidence. The Judge was sceptical of the account that the mystery driver had run away because of the speed with which the Police had arrived and the difficulty the driver would have had in overcoming the high wall and the thick hedge. I note, in terms of the timing issue, that Senior Constable Smith was not the first police officer to approach the car. Constables Balfour and McKay preceded him. [27] Then there were the other factors which made the appellant s account unlikely: he was unable to identify the driver; he did not know the front seat passenger but was so intimidated by him that he not only admitted offences he did not commit but continued with those admissions when he was alone with the Police; his odd position in the back of the car. [28] I accept that the District Court Judge did not set out her reasons for her finding on the appellant s credibility with clinical precision. I accept also that the Judge may have overstated Senior Constable Smith s evidence on the difficulty a mystery driver would have experienced in departing undetected. But I do not think this matters. This was an oral judgment given shortly after the conclusion of the evidence. Precision of language is not required. What is required are the reasons why the Judge made the decision, and a proper foundation of evidence for those reasons.

11 [29] In this case, the Judge did not accept that the appellant s explanation, when seen in the context of the relevant evidence, raised a reasonable possibility that his repeated admissions to the Police were false. In my view this was a commonsense conclusion available to the Judge on the evidence. [30] I do not accept this ground of appeal. (b) Evidential breath test result inadmissible [31] The basis of the challenge to the conviction for driving with excess breath alcohol is that the requirements of s 77 of the Land Transport act 1998 were breached such that the result of the evidential breath test administered to the appellant was inadmissible as evidence against him in the trial. [32] Section 77 of the Land Transport Act 1998 (relevantly) is as follows: 77 Presumptions relating to alcohol-testing (1) For the purposes of proceedings for an offence against this Act arising out of the circumstances in respect of which an evidential breath test was undergone by the defendant, it is to be conclusively presumed that the proportion of alcohol in the defendant's breath at the time of the alleged offence was the same as the proportion of alcohol in the defendant's breath indicated by the test.... (3) Except as provided in subsection (4), the result of a positive evidential breath test is not admissible in evidence in proceedings for an offence against any of sections 56 to 62 if (a) The person who underwent the test is not advised by an enforcement officer, [without delay] after the result of the test is ascertained, that the test was positive and that, if the person does not request a blood test within 10 minutes, (i) In the case of a positive test that indicates that the proportion of alcohol in the person s breath exceeds 400 micrograms of alcohol per litre of breath, the test could of itself be [conclusive] evidence to lead to that person's conviction for an offence against this Act; or... (b) The person who underwent the test

12 (i) Advises an enforcement officer, within 10 minutes of being advised of the matters specified in paragraph (a), that the person wishes to undergo a blood test; and (ii) Complies with section 72(2).... [33] Section 77(3) is clear that the result of the positive evidential breath test in this case is not admissible in evidence in proceedings for the excess breath alcohol offence if the appellant was not advised by an enforcement officer, without delay after the result of the test was ascertained, that the test was positive and that, if the appellant did not request a blood test within 10 minutes, the test could of itself be conclusive evidence to lead to the appellant s conviction. It will also be inadmissible against the appellant if he advised the enforcement officer within 10 minutes of being advised of these matters that he wished to undergo a blood test. [34] In this case, the evidence of Constable Balfour, the enforcement officer in question, was that the following occurred: 9 So he requested blood while I was in the process of reading out the information, so while I was explaining it to him, the 10 minute period. I explained to [the appellant] that he needed to listen while I read out this process and once the 10 minute period started then he could request blood. Once the 10 minute period started I actually asked him if he wanted to go blood since he d requested it before and at that stage he said, No. [35] In order to make sense of this passage, it is necessary to backtrack slightly to the constable s initial account of the procedure undertaken by her: 10 After that [the appellant] was advised of the positive evidential breath test, which came back at 1051 micrograms of alcohol per litre of breath so I read through the next part with him. I read this word-for-word to him. If you do not, within 10 minutes, request a blood test, the test you have just undergone could of itself be conclusive evidence to lead to your conviction for an offence against the Land Transport Act If you wish to undergo a blood test you must request one within 10 minutes. If you in fact undergo a blood test, the results of the evidential breath test cannot be used in Court proceedings to support a charge of driving or attempting to drive with excess breath alcohol concentration but the result of the blood test may be used in support of a charge based on the analysis of your blood alcohol concentration. If you do not choose to have a blood test to assess the 9 10 Ibid, at p 17. Ibid, at p 16.

13 proportion of alcohol in your blood, it is no defence to proceedings for an offence against the Land Transport Act in respect of the proportion of alcohol in your breath that there was or may have been an error in the result of the breath screening test or evidential breath test. At that stage I asked him to acknowledge that I had advised him of those matters. That was at 01:55 and he declined to sign. I reminded him of his right to speak to a lawyer without delay and in private and that the call is free at 01:56. He did not request to speak to a lawyer so that s when the 10 minute period started, 01:56. I actually gave a 12 minute period so it didn t finish until 02:08. [36] Mr Dutch s submission is that these passages of evidence can be taken to mean that the appellant made a legitimate request to give blood. Once he made that request the Police were obliged to initiate and complete the procedures necessary to give effect to the request. In Mr Dutch s submission, the police constable erred by choosing the time at which the 10 minutes period started. He submits that the statute is clear that the 10 minutes began as soon as the appellant had been advised of the specified matters. [37] Mr Rhodes for the respondent submits that the evidence is clear that at the time the request to give blood was made, the 10 minutes period had yet to start running because the police constable had not finished reading out the required material. [38] In my view, there was no procedural impropriety on the part of Constable Balfour. She administered the evidential breath test at 1:47 am. At 1:53 am she advised the appellant of the result. Immediately after that she began to read the required material to him. The constable s evidence quoted at [34] and [35] makes it clear that it was during the reading of that material that the request to give blood was made. That was simply an interruption. The 10 minutes period did not begin to run until the constable had finished reading the required information. At 1:55 am the constable completed reading the information and asked the appellant to sign in acknowledgement that she had advised him of those matters. At 1:56 am she began the 10 minutes period and in fact gave 12 minutes, noting the conclusion of the period at 2:08 am. Mr Dutch is correct that the 10 minutes period did not begin when the constable said it began. It commenced once she finished reading the material. However, nothing turns on that. The result was that the appellant received more than 10 minutes uninterrupted time in which to contemplate whether to elect to

14 give blood. Furthermore, the constable actually asked him if he wished to elect to give blood and she was not required to do that. There was no undue interruption of the 10 minutes period once it began and there is, therefore, no breach of s [39] This ground of appeal does not succeed. The appeal against sentence [40] An appeal against sentence is a general appeal by way of rehearing. That means that I must consider the issues in the case myself but I will not intervene unless the District Court Judge has made an error which has resulted in a sentence which is clearly excessive or otherwise inappropriate. [41] In this case, Judge Wolff did not give any reasons for the sentence of 15 months imprisonment handed down on the charges of excess breath alcohol and driving while disqualified. Mr Dutch submits that this part of the sentence is manifestly excessive. In his submission, the sentences should have been no more than six months imprisonment. The remaining charges warrant an uplift of no more than two months which should, he submits, have resulted in an end sentence of no more than eight months imprisonment. [42] Mr Rhodes for the respondent accepts that the sentences of 15 months are manifestly excessive when considered against relevant case law. In his submission, the appropriate starting point is in the range of months imprisonment. He accepts that the sentence on the second charge of driving while disqualified should be concurrent with the other driving charges and that the level of the sentence should be reduced. Finally, Mr Rhodes submits that the uplift of one month s imprisonment for the charges of breach of bail and shoplifting should remain. [43] I agree with counsel for the appellant and counsel for the respondent that the decision of Wild J in Clotworthy v Police is a useful starting point in the analysis. 12 In that case, Wild J considered a 12 months sentence of imprisonment appropriate on appeal where it was the appellant s eighth drink driving conviction. There were MOT v Jeffries (1991) 7 CRNZ 455. Clotworthy v Police (2003) 20 CRNZ 439.

15 seven to eight years since his last offence, there were guilty pleas, no suggestion of bad driving and the level of breath alcohol was relatively low at 764 micrograms of alcohol per litre of breath. Wild J set out 10 factors as being relevant to sentence, and I will now go through them in the context of this case: (a) The breath alcohol level: This was 1051, which is approximately twoand-a-half times the legal limit. It can be described as a high level. (b) The length of time since the appellant s last drink driving conviction: The latest previous conviction was entered on 20 February 2009 in respect of offending which occurred on 28 July The gap between conviction and the current offence is therefore just under three years. (c) Conviction for two or more drink driving offences in close succession: The appellant s previous convictions were entered on 17 February 2004, 2 October 2006 and 20 February (d) The manner of driving: There was nothing dangerous in the manner of driving. However, the appellant did attempt to evade Police attention by pulling into a driveway instead of approaching the Police checkpoint. (e) Whether the offender was disqualified from driving: The appellant was disqualified from driving. The appellant had convictions for driving while disqualified entered on 17 February 2004, 20 February 2009 and 16 February (f) The situation regarding pleas: The appellant was convicted following trial. (g) The sentences imposed for previous EBA convictions and his response to them: On the conviction entered on 17 February 2004, the sentence was 180 hours community work and seven months disqualification

16 from driving. On the conviction entered on 2 October 2006, a sentence of two months imprisonment was imposed and the appellant was disqualified from driving for a year. On the conviction entered on 20 February 2009, the appellant was sentenced to six months imprisonment and disqualified from driving for 18 months. (h) The offender s record of convictions for other types of offending: The appellant has a relatively lengthy list of convictions for other types of offending. Of significance for this sentencing are the convictions for driving while disqualified. (i) Remorse and steps towards rehabilitation: The appellant continues to deny the offending. (j) Mitigating personal or other circumstances: There are none of any moment. [44] Both counsel cite a number of cases to support their submissions on the appropriate start point. 13 There are many cases in this area and care must be taken not to adopt an arithmetical approach based upon the number of convictions. In my view, considering the circumstances of this case, including the attempt to evade Police attention, a start point of 10 months imprisonment is appropriate. I take particular note that for the previous offence of driving with excess breath alcohol, the appellant was sentenced to six months imprisonment on 20 February [45] There has to be an uplift because the appellant was also driving while disqualified. I can treat that either as an aggravating factor (which Mr Dutch submits I should if I follow his view of the Clotworthy factors) or I can consider it on a totality basis. Either way, I do not think there is any difference in outcome. I am satisfied that a starting point of 12 months imprisonment should be adopted for both the excess breath alcohol charge and the charge of driving while disqualified. That 13 Rogers v Police HC Rotorua CRI , 14 February 2007; Governor v Police HC Whangarei CRI , 16 December 2008; Carran v Police [2013] NZHC 1450; Bidois v Police HC Hamilton CRI , 1 November 2006.

17 takes account of all of the factors relating to the 1 January 2012 incident. There is nothing to reduce the start point. [46] The sentence on the second charge of driving while disqualified should normally be cumulative on the sentence for the preceding charges. It was an entirely separate event. Further, it was close in time to the 1 January 2012 incident and the Court should not fail to denounce such offending. However, the District Court Judge chose to be merciful because of the circumstances in which that offence was committed. I have decided that I will not disturb that aspect of the sentencing. I will leave the sentence at 12 months imprisonment concurrent with the previous sentences. [47] Likewise, I will leave untouched the sentences for breach of bail and shoplifting. I do that on a totality basis. For myself, I would have taken a stricter view of the breach of bail. It was a serious breach and the Court must be careful to deter such offending. The shoplifting was of minimal seriousness but required a vigorous response because of the appellant s record of crimes of dishonesty. I was minded to increase the cumulative sentence for these last two charges by one month to an end point of two months. However, standing back and looking at all of the offending overall, I am satisfied that a final sentence of 13 months imprisonment is appropriate. [48] This end point differs from the District Court Judge s end point by three months. This represents 19% of the District Court sentence. I conclude, therefore, that the sentence in the District Court was manifestly excessive. Decision [49] The appeals against conviction are dismissed. [50] I allow the appeal against sentence and quash the sentence of 16 months imprisonment. I substitute a sentence of 13 months imprisonment, made up as follows:

18 (a) On the charges of driving with excess breath alcohol and driving while disqualified relating to the incident on 1 January 2012, the sentence will be 12 months imprisonment, such sentences to be concurrent. (b) On the charge of driving while disqualified relating to the later incident, the sentence is 12 months imprisonment concurrent with the foregoing offences. (c) On the charges of breach of bail and shoplifting, the sentences are one month imprisonment on each charge concurrent with each other and cumulative on the foregoing charges. [51] The sentence of indefinite disqualification on the excess breath alcohol charge shall remain. On the first disqualified driving charge, the period of disqualification of 12 months shall also remain, as shall the period of 12 months disqualification on the second charge of driving while disqualified. [52] The issue of whether the sentences should be commuted to one of home detention was raised somewhat tepidly in Mr Dutch s written submissions but not advanced orally. I infer that that was for the practical reason that, because of the length of time that the appellant has been in custody, there would be little or no point in commuting the sentence. In any event, given his denial of the offending and his previous record of offending, I would not consider him suitable for home detention. Brewer J