Police v Hawthorn [2018] NZDC 24062

Published 26 November 2018

Drink-driving — excess breath alcohol — third or subsequent offence — Criminal Procedure (Mentally Impaired Persons) Act 2003, s 38 — Sentencing Act 2002. The defendant appeared for sentencing having pleaded guilty to one charge of driving with excess breath alcohol, a third or subsequent offence. The defendant had been stopped at a checkpoint where a breath alcohol level of 444 micrograms was recorded, 44 micrograms above the 400 microgram limit. At issue for the defendant was his list of significant prior convictions; 62 convictions, including 12 prior convictions for the same kind of offending. The most recent conviction, from an appalling history of drink-driving and including a record of "atrocious driving" resulting in the deaths of four people, had seen the defendant sentenced to 10 years' imprisonment for manslaughter in 2003. Relevant sentencing principles were canvassed noting the need for deterrence, denunciation, protection of the community, the gravity of the offending, the degree of culpability, consistency with similar offending relevant personal circumstance while looking, where possible, to assist with reintegration and rehabilitation and imposing the least restrictive sentence or combination of sentences. The relevant sentencing factors to be taken into account were the breath alcohol level for the charge before the court; the manner of driving on the relevant occasion, which was innocuous; and the relevant conviction history. The court identified the defendant's prior convictions as the key aggravating factor and noted that the starting point for sentencing was clearly imprisonment. From a starting point of 18 months' imprisonment, a discount was given for the defendant's early guilty plea and personal circumstances, leaving a term of 12 months. The court considered pre-sentence reports including a Criminal Procedure (Mentally Impaired Persons) Act, s 38 report, and a comprehensive drug and alcohol report. Submissions that previous terms of imprisonment did not work and that home detention would allow the defendant to attend an alcohol rehabilitation programme were taken into account and that the recommendations for home detention were unopposed by the police. The defendant was convicted and sentenced to six months' home detention, with special conditions imposed. A further sentence of 180 hours of community work was also imposed, and the defendant was disqualified from holding or obtaining a licence for two years. Judgment Date: 20 November 2018.