Arrow v Police - [2016] NZHC 3069

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2016-409-000117 [2016] NZHC 3069

BETWEEN
SARAH JANE ARROW

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 6 December 2016

Appearances:

K Gray for the Appellant
D J Matthews & P A Norman for the Respondent

Judgment:

15 December 2016

JUDGMENT OF NATION J

[1] At about 2.14 pm on Friday 25 March 2016, the appellant (Ms Arrow) was driving along Main Road in Redcliffs, Christchurch. She had been swerving over the road. Her driving caused members of the public to contact the Police. She eventually failed to navigate a corner and struck a roadside barrier. The impact threw two pedestrians off a two metre bank onto rocks below. Both of them were injured, one severely. Police attended. An evidential breath alcohol test gave a reading of 1009 mcg/L, almost three times the legal limit.

[2] On 3 September 2014, Ms Arrow had been convicted on an excess breath alcohol charge where the reading had been 1352 mcg/L. She was then indefinitely disqualified until such time as she obtained an alcohol interlock licence and then a zero-alcohol licence. On 20 January 2016 Ms Arrow was issued with a zero-alcohol licence. She received a sentence of intensive supervision on 3 September 2014.1
That sentence only ended on 3 March 2016, approximately three weeks prior to her

offending on 25 March 2016.

1 New Zealand Police v Arrow DC Auckland CRI-2013-009-011554, 3 September 2014.

ARROW v POLICE [2016] NZHC 3069 [15 December 2016]

[3] On 13 May 2016, Ms Arrow pleaded guilty to two charges. On a charge of driving with excess breath alcohol, the maximum term of imprisonment was five years. On the charge of driving contrary to a zero-alcohol licence, the maximum term of imprisonment was three months.

[4] On 28 September 2016, Ms Arrow was sentenced by Judge O’Driscoll in the District Court to two years and six months’ imprisonment.2 She was also made subject to a number of disqualification orders3 and ordered to pay reparation to one of the victims in the order of $2,500.

[5] The appellant appeals against her sentence on the basis that it was manifestly excessive.

Principles on appeal

[6] Appeals against sentence are brought under s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. Specifically, this Court may only allow an appeal against sentence if it is satisfied that there has been an error in the imposition of the sentence and, in that event, a different sentence should be imposed.4

[7] If the sentence under appeal may be properly justified having regard to the relevant sentencing principles, it is not the place of this Court to intervene and substitute its own views for those of the sentencing Judge. It is only if the sentence is “manifestly excessive” that the Court should interfere with the exercise of the
Judge’s discretion. As Toogood J said in Larkin v Ministry of Development:5

[26] The High Court will…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Arrow v Police

Details

AGLC: Arrow v Police [2016] NZHC 3069
Case: [2016] NZHC 3069
Decision Date: 15 December 2016

CaseChat Overview and Summary

Sarah Jane Arrow appeals against her sentence of two years and six months' imprisonment for driving with excess breath alcohol and driving contrary to a zero-alcohol licence. The appellant argues that the sentence is manifestly excessive. The High Court must determine if there has been an error in the imposition of the sentence and, if so, whether a different sentence should be imposed. The District Court Judge identified four primary aggravating factors, including the high breath alcohol level, the fact the appellant was subject to a zero-alcohol licence, the causation of extensive injuries to one of the victims, and the presence of relevant previous driving-related convictions. The Judge applied a starting point of two years and six months' imprisonment and then applied uplifts of six months for the appellant breaching her zero-alcohol licence and six months for her three previous convictions. The Judge then applied a global discount of two months, which took into account the appellant's remorse, steps to address her offending, offers of reparation, and other factors relevant to the appellant. A full credit of 25 per cent for guilty pleas was given, reducing the end sentence imposed to one of two years and six months' imprisonment. The appellant submits the uplift of a further 12 months for her previous convictions and the fact this offending occurred while she was subject to a zero-alcohol licence resulted in double counting of those aggravating factors. The Court does not accept there has been a double counting. The appellant also submits the two month reduction in a potential sentence did not adequately recognise the mitigating factors relating to her personally. The Court holds the Judge referred expressly and separately to all matters which had been advanced in favour of Ms Arrow. In the end, the credit he gave her for those matters was five per cent of the starting point he had arrived at before taking such matters into account. While some Judges may have given her a greater credit, in all the circumstances of this case, the Court has not been persuaded that there was an error in this regard. The end sentence was within a range reasonably available to the Judge having regard to all the circumstances associated with the offending and the offender. The appeal is dismissed.

Orders