This article was first published on Stuff, Oct 10 2018.
It’s been three years, to the day, since Leah Abrams survived a car crash caused by a driver who had been drinking. The Aucklander escaped the harrowing crash with a broken arm but took on a year’s worth of trauma and healing.
“I saw a car swerving on the other side of the road in front of me, so I pulled back,” Abrams said. “I saw his lights coming into my vehicle, my hands came off the wheel and I laid down across the seat and put my hands across my face. “I protected my back and my skull; I saved my own life that night,” she said.
Boxed in between the drink-driver’s car and a parked car, Abrams waited, panicking, for emergency services to cut her out of the vehicle. “It was the worst day of my life,” she said of the October 10, 2015 crash. After two surgeries and two months off work, she spent all of 2016 recovering from damaged nerves and an agitated shoulder.
But what Abrams wasn’t prepared for was the trauma she felt going back on the road. “Getting in a vehicle, getting behind the wheel of a vehicle, driving again, driving late at night, driving down little roads, all those things. It’s a huge journey,” she said.
From June 2017 to June 2018, there have been more than 53,000 alcohol-related offences on New Zealand roads, while drug-related offences sit at 1179, police statistics show.
On New Zealand’s first national awareness day for drink and drug driving, Abrams is urging New Zealanders to make sober driving a priority. “It’s staggering that New Zealand’s drunk and drug statistics are so high,” she said. “I was stunned to learn that last year there were over 2000 fatal or injury crashes caused because of people driving under the influence of alcohol or drugs.”
Abrams launched the charitable trust No one Ever Stands Alone (NESA) in 2016. Its objective is to put an end to drink and drug driving and provide support for victims and their families. Volunteers often stand with police at drink driving checkpoints, thanking sober drivers with cards and lollies.
“We really want to promote the sober driving message and connect with the community and echo the police message promoting sober driving,” Abrams said.
This story was originally published on Stuff on 29 April 2018.
A High Court Justice has ordered an Auckland photographer’s conviction be set aside because a police officer unlawfully entered his bedroom at Sir James Wallace’s mansion and breath tested him.
She has also called for clarification of the law to make it clear police have no legal right to breath test people in their homes.
The photographer, Lee Torres Calderon, said he was relieved by the appeal decision, and wanted to speak out to let others know about their rights.
Lee Torres Calderon was the artist in residence at Rannoch House, a mansion owned by Sir James Wallace in Auckland’s Epsom, when the incident occurred. “This outcome is important for people. The basic point is that it was quite an unfair situation,” the 29-year-old said.
Torres Calderon was found guilty at a judge-alone trial in the Auckland District Court in 2016 of driving with excess breath alcohol. He was convicted and ordered to pay a fine of $650 and court costs of $130, and his driving licence was disqualified for six months.
Torres Calderon appealed the conviction to the High Court at Auckland. Justice Ailsa Duffy’s judgment was made on April 19 and released this week.
She ordered his conviction be set aside, saying the police officer had no authority to be in his bedroom and the law needed to be changed to inform people of their rights.
“There is an implicit power dynamic [between police and civilians] that the case law does not directly address,” she said. “Many citizens may not know they can demand the officer leave at once, and if she does not do so, she will then be a trespasser.”
Torres Calderon is originally from Lima, Peru, and has been in New Zealand since 2014 on a series of work visas. In January 2016, he was the artist in residence at Rannoch House – a four-storey mansion in the upmarket Auckland suburb of Epsom.
The 100-year-old building is owned by the philanthropist Sir James Wallace and is run by the Wallace Arts Trust as both a residence and gallery for modern New Zealand art.
On the evening of January 10 2016, Torres Calderon went out for dinner, where he shared a bottle of wine and a meal with a companion before driving home, Justice Duffy’s judgment said.
“It was the second anniversary of the death by suicide of his former partner . . . he was emotionally upset on his return to Rannoch House.”
In the early hours of the morning of January 11, Torres Calderon crashed his car into the rock wall at the entrance of the property, bordering the garden. He sustained a cut to his knee, but was able to make his way inside. No other vehicles were involved.
A fellow Rannoch House resident called St John Ambulance, while another gave Torres Calderon a large glass of red wine. The photographer said he was grateful for the wine because he was “shaking and really upset” following the crash. A paramedic arrived and tended to his wound, which did not require hospitalisation.
“Then the police showed up. I just thought it was to help, or something like that. I had a clear conscience – I didn’t have any fear.”
Justice Duffy said in her judgment it was not clear if someone at Rannoch House had called the police, or whether the call to St John prompted them to attend.
A police constable then entered Torres Calderon’s bedroom through a back door. Justice Duffy’s judgment said the constable believed he had authority to enter the bedroom and question the photographer.
Once he learned Torres Calderon had consumed alcohol before driving, he asked him to undergo a passive breath test, then a breath screening test. “I said, ‘I had the accident two hours ago, I’ve been drinking after the car accident, I don’t think you should breathalyse me’,” Torres Calderon said.
“They said, ‘You need to do this or we’re going to arrest you’. And I was like, ‘OK’. I’m in a foreign country and I didn’t know too much what the rules are here. “Of course I was very focussed that [I was] still alive. I just wanted it to be over.”
In his evidence to the High Court, Torres Calderon said he did not realise he could ask the constable to leave, or refuse to take the test. He said he thought the constable had “total authority”.
After the screening test, Torres Calderon was taken to the police station, where he blew 534 micrograms of alcohol per litre of breath. The legal limit is 250mcg after it was lowered from 400mcg in 2014.
Justice Duffy said in her judgment police had implied licence to enter a property, but that extended no further than was necessary to communicate with the occupant.
The owner or occupier of the property had to then give them permission to go any further. Torres Calderon had not given consent to the constable to enter his bedroom, which meant the breath test was unlawfully obtained, she said.
The photographer had “innocently” drunk a large glass of wine in the nearly two hours between the crash and the breath test, and there was no evidence to suggest he was over the legal limit when the incident occurred, she said.
Torres Calderon said the conviction had made travelling and applying for New Zealand work visas more complicated, and had caused him a great deal of anxiety.
“It’s important to tell people that they can ask [the police] to leave. I also think it’s important for the police to have a clear procedure, because at this stage it’s been two years and it’s been a lot of time and energy and stress that I’m not going to get back.”
This story was originally published on Stuff on 6 October, 2018.
An Auckland mum has had her drink-driving conviction overturned after a judge ruled police entered her home unlawfully to breathalyse her.
Ella Hoeflich was found to have an excessive blood alcohol level by police following a minor car accident in 2016, after officers entered her house without permission. She appealed her conviction on the grounds police had no right to be in her home.
Judge Paul Davison upheld the appeal at the High Court, ruling police were in Hoeflich’s home unlawfully and therefore obtained evidence of her intoxication “improperly”.
“The police acted in a high-handed and somewhat overbearing manner that in my view amounted to a serious intrusion,” he said in a court decision released this week.
Hoeflich’s accident happened in October 2016, soon after 5pm on a Sunday, as she drove back to her Mt Roskill home from a service station.
She said she and a friend had been sharing a bottle of wine over a period of several hours before they decided to drive to the service station for cigarettes.
Hoeflich was behind the wheel of her partner’s Ford Ranger ute for the first time. It was a much bigger vehicle than what she was used to driving, she told the court.
The ute’s front left wheel hit the curb while Hoeflich was navigating a roundabout. Its tyre was dislodged from the wheel rim on impact, making an explosive sound heard by several neighbours.
Hoeflich said she thought she had a flat tyre but, as her house was close, she kept driving. The tyre came off its rim which scraped noisily along the road as she drove – alerting more people, who confronted Hoeflich when she pulled up in her driveway.
Concerned about Hoeflich’s handling of the Ford and suspecting she was intoxicated, one neighbour called the police.
Hoeflich said she was “freaked out” by the incident and suffered a panic attack. She said she went inside and downed several shots of vodka to steady her nerves.
Two constables arrived 15 minutes later and walked through Hoeflich’s open front door to find the driver of the damaged Ford. They then escorted Hoeflich to Avondale police station for a breath test, which she failed.
Police can enter a home without permission if they have a court-issued warrant, if a crime is being committed, or if someone’s safety is at risk.
They can also enter without a warrant to enforce immigration or animal welfare laws, or if someone inside has been involved in a fresh police pursuit.
As none of those situations were at play when police entered Hoeflich’s home, Judge Davison deemed their conduct unlawful.
“Simply knocking at the door and speaking to the occupants was the obvious and indeed sensible thing to do in the circumstances, which would respect the rights of privacy and security of Ms Hoeflich and her family,” he said.
“It follows that the evidence of Ms Hoeflich’s breath test results should not have been admitted and therefore she should not have been convicted of driving with excess breath alcohol.”
A fascinating, but somewhat mysterious, piece of research has recently been published in the Australian & New Zealand Journal of Criminology. It describes huge variations in the imprisonment of drink drivers between one region of New Zealand and another.
PhD student, Wayne Goodall (left) and Dr Russil Durrant (right) of Victoria University divided the country into 17 areas (or judicial ‘circuits’). They found that in one circuit (number 8), repeat drink drivers are twelve times more likely to be sent to prison than drink drivers in other areas. In three other circuits, offenders were ten times more likely to end up in prison. But the circuits are not identified. The researchers refuse to disclose which regions are sending the most people to prison. All they would say is that “judges in the provinces were more likely to incarcerate drink drivers than judges in metropolitan areas”.
The need for consistent sentencing
This lack of clarity is problematic on a number of counts. First, judges need to be consistent in the way they punish a particular offence. This obligation is laid down in section 8(e) of the Sentencing Act 2002 which says judges ‘must take into account the general desirability of consistency with appropriate sentencing levels… in respect of similar offenders committing similar offences’. In short, judges should be handing out roughly the same punishment for the same crime – but we now know that when it comes to repeat drink drivers, they’re not. Goodall and Durrant acknowledge that this inconsistency may extend to other crimes as well – but more research is needed.
They also say the reason for the inconsistency is that New Zealand has no sentencing guidelines – and so judges in the district courts are left to their own devices. Goodall says local area judges form “personal constructs about offenders” which vary from one region to another and this has led to “systematically different approaches” from different regions. In some areas, judges incarcerate people for quite minor offending – such as tagging. In 2007 the Government was so concerned with the growing number of low level offenders in prison, it announced the establishment of a Sentencing Council. It agreed with the Law Commission recommendation that judges need sentencing guide- lines. Unfortunately, National scrapped the plan when it came to power in November 2008.
Where is circuit 8?
With all due respect to the judges concerned, this research shows that leaving the judiciary to their own devices was a big mistake. Let’s not make another one by suppressing the details and failing to get to the heart of the matter. We need to know – where is circuit 8?
My guess is Hawkes Bay where Judge Tony Adeane (right) is in charge – and doesn’t like the writing on the wall. In April 2008, Adeane sent an 18 year old tagger to prison and declared the sentence was “a signal to you and your friends that the penalty for graffiti in Hawke’s Bay will be imprisonment until such time as there is some sign this self-indulgent egocentric behaviour is abating”. The following month he sentenced nine drink-drivers to prison in two days.
These are not isolated cases. Goodall and Durrant examined drink driving offences in New Zealand over a two year period (2008-09). Altogether, 9039 repeat drink drivers were involved in the study of which 2429 (more than a quarter) were sent to prison – with the highest percentage of incarcerations (by an absolutely massive margin) in circuit 8.
This is an aberration of justice. Perhaps it is no coincidence that Garth McVicar, founder of the so-called Sensible Sentencing Trust, lives in Hawkes Bay. For years he’s encouraged judges to put more people in prison – except those who stab young taggers to death. McVicar has had a significant impact on the growth of the prison population so one is inevitably led to the conclusion that circuit 8 is probably in Hawkes Bay.
However, the region in which you are sentenced is not the only factor affecting sentencing. In New Zealand, Maori are seven times more likely to be given a custodial sentence than pakeha and men are three times more likely to go to prison than women. Even being physically unattractive can increase your chance of imprisonment. There is very little research on the impact of geography on sentencing, even internationally – but this ground breaking research at Victoria University suggests it may have an even greater impact than race or any other factor.
The need for transparency
We need to know where these hidden biases in our justice system are. If the judges in Hawkes Bay are out of line with their colleagues, they certainly need to know. Policy makers also need to know so they can figure out how judicial biases operate and how to overcome them. So it is essential that the VUW researchers tell us which region of New Zealand is circuit 8 – and which other provincial areas send ten times as many people to prison as metropolitan areas. This information should provide unequivocal evidence that New Zealand needs a Sentencing Council after all.
I asked Dr Durrant to tell me which circuit represents which area. He refused saying: “For reasons that you can probably imagine the identities of the circuits cannot be disclosed.” Frankly, I cannot imagine a single reason for keeping this information secret. This is not a national security issue and Victoria University is not the NSA – or the GCSB. This is about the New Zealand justice system which needs to be open and transparent.
I have had to write to the Ombudsman to try and get the information made public. But that shouldn’t be necessary. VUW should take pride in an excellent piece of research which has uncovered a substantial bias in the administration of justice. They need to give us the details – not cover them up. And then they need to do more research to see if it applies to other kinds of crime. In the meantime, a smart defence lawyer might argue that if his client is a male, Maori and lives in the provinces, there is convincing evidence he is unlikely to get a fair hearing.