Andree v Police

[2025] NZHC 2932

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2025-404-441

[2025] NZHC 2932

BETWEEN

NICHOLAS SAMUEL ANDREE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	15 September 2025
Appearances:	A S Bloem and B A Osborne for Appellant R V E Cowley for Respondent
Judgment:	6 October 2025

JUDGMENT OF O’GORMAN J

[Appeal against sentence]

This judgment was delivered by me on 6 October 2025 at 4 pm

Registrar/Deputy Registrar

…………………………………

Solicitors/Counsel:

Bloem Law, Auckland

Meredith Connell, Auckland

ANDREE v POLICE [2025] NZHC 2932 [6 October 2025]

[1]        This is an appeal against the sentencing decision of Judge K J Glubb in the North Shore District Court on 18 July 2025.1

[2]        Mr Andree pleaded guilty to one charge of excess breath alcohol (third or subsequent)2 and two charges of driving while disqualified (third or subsequent).3

[3]        On the charge of excess breath alcohol, and considering an appropriate overall sentence taking into account the remaining two charges of driving while disqualified, the Judge imposed an end sentence of imprisonment for a term of 22 months, with standard and special post-release conditions for a period of a further six months.4    Mr Andree was disqualified from driving indefinitely under s 65 of the Land Transport Act 1998.5 The Judge also made orders that he be subject to a zero-alcohol licence when he becomes eligible for that.6 The Judge declined to grant leave to convert the sentence of imprisonment to home detention.7

[4]The appellant submits the sentence was manifestly excessive because:

(a)the starting point was too high; and

(b)the Judge failed to implement a totality reduction pursuant to s 85 of the Sentencing Act 2002.

[5]        Furthermore, the appellant contends that Mr Andree should have been sentenced to home detention.

[6]The respondent opposes the appeal on the basis that:

(a)the sentence was within range; and

1      Police v Andree [2025] NZDC 16551 [judgment under appeal].

2      Land Transport Act 1998, ss 56(2) and 56(4). The maximum penalty is two years’ imprisonment,

$6,000 fine and disqualification from holding a driver’s licence for more than one year.

3      Sections 32(1)(b) and 32(4). The maximum penalty is two years’ imprisonment, $6,000 fine and disqualification from holding a driver’s licence for one year or more.

4      Judgment under appeal, above n 1, at [36] and [39].

5 At [37].

6 At [38].

7 At [36].

(b)an end sentence of imprisonment rather than home detention was appropriate given the circumstances.

Legal principles

[7]        The Court must allow an appeal against sentence if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.8 Generally, the sentence must be shown to be manifestly excessive or wrong in principle.9 The focus is on the end sentence imposed, rather than the process by which it is reached.10

[8]        The claim that a sentence is manifestly excessive (or inadequate) is inevitably premised on the contention of prior error, which may include questions of whether the starting point was too high given the facts, or of incorrect deductions for personal mitigating circumstances.11

[9]        Appellate courts do not indulge in mere tinkering with a sentence.12 The Court generally will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.

Facts of offending

[10]      By way of relevant background, on 15 May 2024, Mr Andree was sentenced for driving while suspended (third or subsequent) and with a zero alcohol licence.  On testing, Mr Andree’s breath contained alcohol over 250 micrograms of alcohol per litre of breath. Mr Andree was disqualified indefinitely as a result.

[11]      The subject matter of the appeal involves sentences imposed for other offending on two separate days:

8      Criminal Procedure Act 2011, s 250.

9      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27] and [31]–[35].

10 At [36].

11 At [32].

12     R v Boyd (2004) 21 CRNZ 169 at [38].

(a)On 23 September 2024, Mr Andree was stopped by police for excess speed on State Highway 16, Auckland. This occasion resulted in the first driving while disqualified (third or subsequent) charge.

(b)On 28 December 2024, Mr Andree was driving in Millwater when police received a complaint about the manner of his driving from a member of the public. Mr Andree was located at a Gull Petrol Station on Wainui Road, Wainui, exhibiting signs of recent alcohol  intake.  Mr Andree’s son was in the car. Breath testing procedures returned a reading of 598 micrograms of alcohol per litre of breath. This occasion gave rise to the other driving while disqualified (third and subsequent) charge and the excess breath alcohol charge.

District Court decision

[12]      The Judge referred to the leading authorities of Clotworthy v Police and Samson v Police, and considered that the offending fell squarely within the third category described in Samson which exhorts a starting point of 18–20 months’ imprisonment.13 The Judge adopted a starting point of 20 months (at the top of that range) for the lead offence of excess breath alcohol, taking into account the following aggravating features of the offending:14

(a)a degree of planning and premeditation;

(b)the presence of his son in the car;

(c)the manner of his driving (noting that Mr Andree disputed this);

(d)that Mr Andree’s breath alcohol reading was “moderately high”;

(e)the recency of another sentence for offending of this nature, being nine months prior; and

13     Clotworthy v Police (2003) 20 CRNZ 439 (HC); and Samson v Police [2015] NZHC 748.

14     Judgment under appeal, above n 1, see in particular at [5]–[9] and [21].

(f)Mr Andree’s previous conviction, demerit point and bail history.

[13]      Uplifts were then imposed of four months for the first charge of driving while disqualified that occurred on 23 September 2024, and  of  10  months  for  the  second charge of driving while disqualified that occurred on 28 December 2024.15 The result was a global starting point of 34 months’ imprisonment.

[14]The following deductions were then applied:16

(a)25 per cent for his guilty pleas;

(b)five per cent to acknowledge participation in a Community Alcohol and Drug Services (CADS) programme;

(c)five per cent to acknowledge the impact of the sentence on Mr Andree’s children; and

(d)no discount was given for remorse.

[15]      The end sentence was calculated at 22.1 months, rounded down to 22 months’ imprisonment. The Judge declined to convert the sentence to one of home detention and to grant leave to apply for such conversion, because previous community-based sentences had not achieved the desired deterrent effect.

Appellant submissions

[16]      Counsel for the appellant submits that the Judge was required to adopt a cumulative approach at the starting point, treating all driving offences arising from the same incident as part of the categorisation exercise under Samson. On appeal in that case, Whata J confirmed that a cumulative sentence can and should be imposed for offending of this type.17 However, when the starting points are applied in an arithmetic way, there is a tendency to lead to a disproportionate sentence overall.18 Therefore the

15 At [27].

16     At [28]–[31].

17     Samson v Police, above n 13, at [25].

18 At [26].

cumulative starting point for multiple charges arising from a single incident should reflect the totality of the offending. In Samson, an arithmetic approach would suggest that Mr Samson was in the worst category of offending (category four), whereas the circumstances only justified a cumulative starting point in category three.

[17]      Counsel for the appellant also referred to Tawa v Police, which involved two separate incidents.19 The first was on 21 August 2015, giving rise to one excess breath alcohol charge, one charge of driving while disqualified, and one charge of careless driving. The second incident on 7 November 2015 gave rise to a second charge of driving while disqualified. On appeal, Woolford J upheld a 20-month starting point, but considered a six-month uplift for the second incident was too high having regard to totality principles and the facts of the offending.20

[18]      Based on these cases, counsel for the appellant suggests that the incident that occurred on 28 December 2024 resulting in the excess breath alcohol charge and the second driving while disqualified charge should together be placed in category three of Samson, leaving only a single uplift to be applied for the first driving while disqualified offence that occurred on 23 September 2024. Otherwise, if the combined offending that occurred on 28 December 2024 was not taken into account when considering the appropriate classification, category three would not have been justified, because that is reserved for cases of multiple offences. Whichever approach is adopted, counsel for the appellant contends that an overall starting point (including aggravating factors) would be 24 months’ imprisonment, rather than 34 months’ imprisonment.

[19]      The first ground of appeal is related to the second ground, relying on the principle of totality under s 85 of the Sentencing Act. The appellant submits that the totality principle requires that the overall starting point for multiple offences should not be wholly out of proportion to the gravity of the offending.21 Although the Judge referred to the totality principle at the end of the sentencing exercise, this was only in respect of imposing concurrent sentences. Counsel for the appellant contends that this

19     Tawa v Police [2016] NZHC 696.

20     At [40]–[41].

21     Polaapau v R [2020] NZCA 227 at [42]–[44].

was inadequate when calculating the overall cumulative starting point. The Judge imposed a total of 14 months of uplift on a 20-month starting point, representing an uplift of 70 per cent on the starting point. Counsel submits this is manifestly excessive.

[20]      The third ground of appeal is that the Judge failed to consider appropriately the relevant  purposes  and  principles  of  sentencing  when  declining  to   commute   Mr Andree’s short sentence of imprisonment to one of home detention. The appellant alleges the Judge failed to engage with Mr Andree’s personal circumstances and how these impact the assessment of a community-based sentence. Counsel for the appellant submits that a sentence of home detention would have satisfied all relevant sentencing purposes, taking into account the following:

(a)Mr Andree’s longstanding alcohol addiction, which was a causative factor of the offending. A sentence of home detention would better support his rehabilitation, which he has commenced with completing a CADS programme, and with his wish to begin a nine-week programme with Harmony Trust.

(b)Home detention would allow Mr Andree to continue full-time employment in the construction industry. This is important to prevent unnecessary hardship for his children.

(c)Following a brain injury in 2012 from a motorbike accident, he has special medical needs arising from ongoing consequences including epilepsy. This is more readily accommodated under home detention.

(d)Mr Andree’s most recent sentence was one of community detention and intensive supervision. An appropriate and proportionate progression to meet the purposes of denunciation and deterrence would have been home detention.

Respondent submissions

[21]      The respondent denies that the Judge made any errors and says that the     end sentence was within range and appropriate.

[22]      The respondent submits that a global starting point of 34 months’ imprisonment was within the available range and that the Judge correctly followed authorities in his approach to sentencing. More specifically that:

(a)The starting point of 20 months’ imprisonment for the lead charge was justified and available in line with the guidelines in Samson and the other cases the Judge referred to, correctly reflecting the aggravating factors and Mr Andree’s history of driving offences.

(b)The charges on appeal represented Mr Andree’s eighth drink-driving offence in 16 years, eighth and ninth driving while disqualified charges in 14 years, and more generally the 32nd driving offence over a 19-year period.

[23]      There was no error in providing an uplift for the second charge of driving while disqualified, because applying a distinct uplift in that way was reflected by the approach adopted in Samson itself.

(a)In that case a drink-driving charge and driving while disqualified charge arose from a single incident, but each received distinct starting points. This is a common approach to offending of this nature.22

(b)In Samson, Whata J considered that Mr Samson’s disqualification when he was found drink-driving was an aggravating factor, and also adopted a separate and additional starting point for the driving while disqualified charge.

(c)In this case, there is no issue of double counting because the Judge did not consider whether Mr Andree’s driving disqualification was an aggravating factor of the drink-driving charge.

22     Samson v Police, above n 13, at [22]–[23]; Dick v Police [2014] NZHC 434; and Prasad v Police

[2018] NZHC 537.

[24]      The principle of totality simply requires a Judge to ensure that any cumulative term of imprisonment is not wholly out of proportion to the gravity of the offending.23 The respondent submits that the end sentence of 22 months’ imprisonment appropriately reflects the gravity of the overall offending, considering the seriousness of the circumstances and continued risk to the community.

[25]      The respondent submits that a sentence of imprisonment was the least restrictive outcome appropriate in the circumstances, given Mr Andree’s recidivist history and the salient principles  and  purposes  of  sentencing.  The  Court  in  Nisbit v Police accepted that “imprisonment is now the usual, if not necessarily the inevitable, consequence of recidivist drink driving offending”. In that case, Moore J went on to state that, for those who engage in repeated drink-driving, imprisonment must always represent a “very real possibility”.24

Analysis

[26]      The cases referred to in Samson for category three (multiple offences with seriously aggravating factors, 18–20 months) do not substantiate the error asserted by the appellant:

(a)In Dick v Police, on appeal the High Court adopted a starting point of 18 months’ imprisonment for the excess breath alcohol charge for a person who offended from time to time but not habitually (this being his eighth excess breath alcohol charge).25 An uplift of six months was then applied for the charge of driving while disqualified (Mr Dick’s seventh conviction of this type, but over a time span indicating he should not be classified as a recidivist offender).26 Both these driving offences occurred in a single incident on 10 February 2013.27 Discrete uplifts totalling four months were then applied for the remaining charges, because each represented a separate instance of Mr Dick

23     Ashcroft v R [2014] NZCA 551 at [32].

24     Nisbit v Police [2014] NZHC 3101 at [49], citing R v McQuillan CA129/4, 12 August 2004 at [20].

25     Dick v Police, above n 22, at [18].

26 At [20].

27 At [3].

deliberately flouting orders imposed by the Court, or requirements made of him by the probation authorities.28 The total overall starting point was 28 months, reduced by 25 per cent for guilty pleas, resulting in an end sentence of 21 months’ imprisonment. This case fell within Whata J’s category three description in Samson because of the 18-month starting point for the excess breath alcohol charge in circumstances of multiple earlier offences of that type. The offence of driving while disqualified in the same incident was given a separate uplift, taking it over the category referred to, but this was nevertheless considered consistent with the maximum sentence for each offence and totality principles.29

(b)In Sands v Police, the High Court dismissed an appeal and upheld a starting point of 20 months’ imprisonment for the first of three separate driving offences on different dates (30 September 2011, 29 December 2011 and January 2012).30 The first two were for driving with excess breath alcohol (third or subsequent offence), and the third was for driving while suspended. An uplift of 12 months was added to the starting point for the December charge. A deduction of 25 per cent was given for guilty pleas, resulting in a cumulative end sentence for the two excess breath alcohol charges of 23 months’ imprisonment. An end sentence of 12 months’ imprisonment was imposed for the third charge, but this was to be served concurrently. Again, this case fell within Whata J’s category three description in Samson because of the 20-month starting point for the first excess breath alcohol charge in circumstances of multiple earlier offences of that type. The separate uplift for the second charge of excess breath alcohol took it over the category referred to, consistent with totality principles.

28 At [21].

29 At [20].

30     Sands v Police [2012] NZHC 3011 at [1].

(c)In R v Fair the Court of Appeal allowed an appeal in respect of two offences committed in one incident on 29 June 2006, namely driving while disqualified with excess breath alcohol. This was Mr Fair’s 14th excess breath alcohol offence and his 12th conviction for driving while disqualified. However, many of the offences were historical (dating as far back as 1973) and regarded as so remote that they were not regarded as a significant part of a proximate pattern of offending.31 Mr Fair had not committed any excess breath alcohol offence for the preceding seven years, during which he may have driven only once while disqualified. His driving on 29 June 2006 was brief and without incident. On those facts, a starting point of 20 months for each offence was considered justifiable.32 A reduction of two months was given to reflect Mr Fair’s  fragile  health,  resulting  in  an  end  sentence  of  18 months’ imprisonment (imposed concurrently). This case also fell within Whata J’s category three description in Samson because of the 20-month starting point found to be justifiable for each charge in circumstances of multiple earlier offences of each type. It does not substantiate that a 20-month starting point was justifiable only because two different offences occurred in the same incident.

[27]      In Prasad v Police, the High Court dismissed an appeal in  which  the  District Court adopted a starting point of the maximum sentence of two years’ imprisonment for the excess breath/blood alcohol charge, being Mr Prasad’s eighth conviction of that type.33 An uplift of three months was given for other charges of driving whilst disqualified, reckless driving, and failing to stop, all occurring in the same incident on 12 November 2017. A further three-month uplift was applied for Mr Prasad’s “previous history of like offending”. After a full discount for guilty pleas, the end sentence was 22 months’ imprisonment. The starting point was upheld as within range for recidivist offending with serious aggravating factors. Mander J acknowledged that the sentencing Judge fell into error in applying a discrete uplift for a previous history of “like offending” when that had already been taken into account

31     R v Fair [2007] NZCA 282 at [14].

32 At [19].

33     Prasad v Police, above n 22, at [4] and [7].

in fixing the starting point. However, the error was not corrected because the end sentence was nevertheless within range and any adjustment would arguably amount to tinkering.

[28]      I reject the appellant’s submission that Samson limited the cumulative starting point to the categories referred to in [15] of that judgment. This is evident from [27], which refers to cumulative starting points of 30 months or more in McGee,34 Hughes,35 and Tawhara.36 The Judge considered those cases all involved more serious offending, but there was nothing incongruous about a cumulative starting point exceeding the maximum sentence available for a single offence.

[29]      Hughes was an appeal against sentences imposed for two charges for a single instance of driving: one charge of driving with excess breath alcohol and one charge of driving while disqualified. Whata J granted leave to appeal to the Court of Appeal on two questions of law, the first being: “Whether a cumulative sentence of imprisonment can be imposed in respect of offences of driving while disqualified and driving with an excess breath or blood alcohol level, when the offences have been committed in a single act of driving”.37 The  Court  of  Appeal  held  that  the  District Court Judge did not err in imposing cumulative sentences of 18 months for each charge relating to the  same  incident,  resulting  in  a  total  end  sentence  of  36 months’ imprisonment.

[30]      In Samson, Whata J was careful to note that offending of this type is not amenable to tariff-like categorisation, and the categories referred to were merely broad generalisations about starting points supportable by the cases referred to. The examples referred to were of situations where a starting point of 18–20 months was justifiable because there were seriously aggravating factors and multiple previous offences of that type. That analysis did not reserve higher sentences solely for multiple offending in the same incident, nor did it provide any barrier for uplifts or cumulative sentences to be applied when sentencing multiple different offences, which might

34     McGee v Police HC Whangarei CRI-2010-488-47, 8 December 2010.

35     Hughes v R [2012] NZCA 388.

36     Police v Tawhara HC Whangarei CRI-2010-488-044, 9 September 2010.

37     Hughes v R, above n 35, at [2].

result in an overall cumulative starting point and end sentence beyond the indicated categories.

[31]The need to assess the totality of the sentence in this context was explained in

Himiona:38

As the cases cited in Tawhara indicate, there is good reason why cumulative sentences should be imposed in cases involving excess breath or blood alcohol and disqualified driving. The Court of Appeal, in R v McQuillan, approved the practice of imposing cumulative sentences to reflect the totality of criminality involved. Such sentences reflect the difference in kind between alcohol impaired driving (a public safety concern) and driving while disqualified (an administration of justice offence involving deliberate disobedience of a Court order). The totality principle is then applied to ensure that cumulative sentences do not “result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending”.

[32]      Based on the above analysis, I accept the respondent’s submissions that the Judge did not make any errors in adopting a starting point of 20 months’ imprisonment for the lead charge, then applying uplifts of four months and 10 months respectively for the two charges of driving while disqualified.

[33]      A starting point of 20 months’ imprisonment is entirely consistent with other cases in circumstances where the lead offence is preceded by multiple earlier offences of the same type, and accompanied by serious aggravating factors as listed in

[12] above. In contrast with R v Fair, Mr Andree has committed this offending as part of a proximate pattern of offending that has been continuing throughout recent years without abatement. Following Hughes, I reject the proposition that no uplift can be given for offending of a different nature that occurs in the same driving incident. This would fail to reflect the gravity and difference in kind of the separate charge. The Judge did not overlook the totality principle. To the contrary, I consider that a much higher starting point would have been adopted for the further charges of driving while disqualified if these had been dealt with alone (for example, if Mr Andree had not consumed alcohol before driving on 28 December 2024). The higher uplift for the second charge of driving while disqualified is justified because of the aggravating factors in that instance and its proximity to the earlier offending in both May and

38     Himiona v Police [2012] NZHC 1756 at [17] (footnotes omitted), quoted in Hakiwai v Police

[2012] NZHC 2625 at [10].

September of that same year. Mr Andree was continuing to engage in determined recidivist offending, clearly impervious to Court orders, previous sentences and the ongoing danger of his behaviour to his son and the community.

[34]              These issues are, as the appellant correctly contends, appropriately considered when applying the totality principle. However, I agree with the respondent’s submission that no error was made by the Judge when considering and applying questions of totality. I do not consider that the overall starting point or cumulative end sentence for these three offences is wholly out of proportion to the maximum sentence on each charge and the gravity of the offending. Contrary to the situation in Prasad, there was no problem of double counting when taking into account Mr Andree’s previous criminal history.

[35]              On the final ground of appeal, I also see no error in the Judge’s assessment that questions of denunciation, deterrence, accountability, and the need to protect the community outweighed the personal circumstances of the offender and whānau impact. I briefly provide my own comments on the most relevant principles and purposes of sentencing:

(a)Gravity and culpability: The gravity and culpability of Mr Andree’s offending arises not from the two events in isolation, but the problem that he continues to offend in this way despite previous criminal convictions and community-based sentences. The efficacy of home detention depends on confidence that the restrictions will be complied with. Given Mr Andree’s evident inability and unwillingness to comply with court orders, I share the Judge’s lack of confidence that a lesser sentence would be complied with or change the offending trajectory. Accordingly, these factors now favour imprisonment as necessary for accountability, denunciation and deterrence.

(b)Denunciation: As the most restrictive sentence in the hierarchy, imprisonment provides greater denunciation for more serious offending in appropriate circumstances. While home detention is in itself a

serious sentence,39 and therefore achieves some denunciation, I share the sentencing Judge’s view that it would not sufficiently meet the seriousness of the recidivist conduct in this case.

(c)Specific and general deterrence: General deterrence is one of the primary purposes of sentencing. Comparing a sentence of imprisonment with one of home detention, I regard the marginal difference as important in this case, in the community’s interests, to deter recidivist conduct of this type. I also consider that imprisonment will have a stronger specific deterrent effect against a background of ongoing non-compliance with community-based sentences.

(d)Accountability and responsibility: In my view, the more restrictive sentence will better promote in Mr Andree a sense of responsibility for, and an acknowledgment of, the potential harm caused by offending of this type. Given the pattern of repeated offending, his previous community-based sentences appear to have failed in these objectives.

(e)Protection of the community: Protection of the community is an important factor in driving-related offences. The goal is road safety and the need to protect other innocent members of the public from the consequences of dangerous and alcohol-affected driving. Mr Andree’s ongoing disregard for legal restrictions and community-based court orders continues to present a real risk to the community that must be addressed.

(f)Rehabilitation and reintegration: The purposes of rehabilitation and reintegration favour home detention. Although important, I do not consider those objectives outweigh the importance of accountability, denunciation,   deterrence   and   protection    of    the    community.  A short-term period of imprisonment does not preclude Mr Andree continuing rehabilitation and reintegrating successfully upon his release.

39     R v Haeata [2017] NZHC 959 at [37].

(g)Circumstances of offender and whānau impact: Mr Andree is a father to two young children and his partner has outlined her need for his support in the home and as an income-earner (supported by a letter from his employer). This consideration strongly supports home detention.40 However, like in Samson, I do not consider it is sufficient in this case to outweigh the  other  factors.  The  sentencing  Judge  noted  that  Mr Andree’s son was in the car during the second incident, so protection of his children is also a countervailing consideration. In terms of any medical needs, I do not see any basis for asserting these might not be provided for in a prison environment.

(h)Consistency: I accept the respondent’s submissions that home detention is commonly denied in analogous circumstances.41 For example, the appellant in Samson had not been sentenced to imprisonment previously, and his end sentence was for only 16 months, yet Whata J held that a term of imprisonment was appropriate because it was necessary to protect the public from Mr Samson and to deter him and others from similar repeat offending, despite the impact imprisonment would have on his three young children.

[36]              For the above reasons, I am not satisfied that the sentencing Judge made any errors, nor do I consider that the sentence was manifestly excessive in denying leave to apply for home detention.

Result

[37]The appeal is dismissed.

O’Gorman J

40    Sweeney v R [2023] NZCA 417 at [39]. In C (CA153/2023) v Police [2024] NZCA 136 at [60(b)],

the Court of Appeal stated: “Attention to the impact of a custodial sentence on the family life of an innocent child is required in all cases”. In Philip v R [2022] NZSC 149, [2022] 1 NZLR 571 at [52], the Supreme Court observed that a sentencing approach that recognises the importance to a child of the familial relationship is also supported by the United Nations Convention on the Rights of the Child (Children’s Convention).

41 See above at [25].