Avramenko v The Queen - [2015] NZHC 2087

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2015-425-23 [2015] NZHC 2087

BETWEEN
EUGENY AVRAMENKO

Appellant

AND

THE QUEEN Respondent

Hearing: 24 August 2015

Appearances:

K Barker for the Appellant
M McClenaghan for the Respondent

Judgment:

31 August 2015

JUDGMENT OF MANDER J

[1] Mr Eugeny Avramenko appeals his effective sentence of 28 months imprisonment. The sentence comprises cumulative sentences of 18 months for a charge of driving with excess blood alcohol, being a third or subsequent offence, and a 10 month sentence for driving whilst disqualified, being a third or subsequent offence.

[2] Mr Avramenko submits that the total term of 28 months imprisonment is manifestly excessive. He argues that its excessive length resulted from an error in the starting point adopted of 18 months imprisonment in respect of the charge of driving whilst disqualified and a failure to apply the principle of totality.

Factual background

[3] In July last year, Mr Avramenko attempted to pull into a park in Mataura. As he did so, he drove onto the kerb and stopped just short of a rubbish bin. This manoeuvre was observed by a police patrol. Mr Avramenko presented as intoxicated, his eyes were glazed and his speech very slurred. He smelt of alcohol.
An evidential blood test returned a result of 330 mg of alcohol per 100 ml of blood.

AVRAMENKO v THE QUEEN [2015] NZHC 2087 [31 August 2015]

[4] Mr Avramenko had previously been convicted for refusing a request for a blood specimen, being a third or subsequent offence, and sentenced to indefinite disqualification from driving.

History of offending

[5] Mr Avramenko was before the Court on his ninth drink-driving conviction. In July 2013, Mr Avramenko was sentenced to 17 months imprisonment for refusing a police officer’s request for a blood specimen, being a third or subsequent offence. In March 2015, he was convicted for driving with excess breath alcohol (level 1314) and sentenced to eight months imprisonment. That period of imprisonment was imposed cumulatively on a sentence of six months imprisonment for the same type of offending (level 615). Prior to those convictions, Mr Avramenko had accumulated five previous drink-driving convictions between January 1999 and November 2007, for which he received various sentences, including intensive supervision, and not insignificant periods of imprisonment (eight and 12 months).

[6] Similarly, Mr Avramenko has a history of driving whilst disqualified. He was before the Court on his sixth conviction for that type of offending. In May 2013, he was sentenced to four months imprisonment for driving whilst disqualified, being a third or subsequent offence, having been convicted for the same type of offending in March 2012. Between May 2004 and May 2008, Mr Avramenko had acquired four convictions for driving whilst disqualified or suspended, for which he had been sentenced to short terms of imprisonment and intensive supervision.

District Court sentence

[7] Judge Turner, after reviewing the facts of Mr Avramenko’s current offending and his previous history, observed that he had a severe alcohol issue. In considering…

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 Avramenko v The Queen

Details

AGLC: Avramenko v The Queen [2015] NZHC 2087
Case: [2015] NZHC 2087
Decision Date: 31 August 2015

CaseChat Overview and Summary

In Avramenko v The Queen, the appellant, Eugeny Avramenko, appealed against the effective sentence of 28 months imprisonment imposed on him by the District Court. The sentence comprised 18 months for driving with excess blood alcohol, being a third or subsequent offence, and 10 months for driving whilst disqualified, also being a third or subsequent offence. Avramenko argued that the total term of 28 months imprisonment was manifestly excessive and resulted from an error in the starting point for the driving whilst disqualified charge and a failure to apply the principle of totality. The Crown contended that the starting points were within the available range and that the sentence was not manifestly excessive. The High Court of New Zealand considered the appeal and found that while the starting points were within the range available to the sentencing Judge, the combined effect of the sentences was outside the general sentencing range for this level of offending. The Court concluded that an end sentence of 22-24 months imprisonment would be more appropriate to mark Avramenko's culpability and level of recidivism. The Court allowed the appeal, reducing the sentence to 23 months, with 15 months for the blood alcohol charge and 8 months for the disqualified driving charge, cumulative on the 15-month sentence.

The final orders of the Court were as follows: The sentence of 18 months imprisonment on the charge of driving with an excess blood alcohol level, being a third or subsequent offence, was quashed and substituted with a sentence of 15 months imprisonment. On the charge of driving whilst disqualified, being a third or subsequent offence, the sentence of imprisonment of 10 months was quashed and substituted with a sentence of eight months imprisonment. That sentence was cumulative on the 15-month sentence imposed in respect of the excess blood alcohol level. The order disqualifying Mr Avramenko from obtaining a driver licence for one year and six months, which was subject to the indefinite disqualification, stood.

Orders