Bailie v Police - [2015] NZHC 3017

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2015-412-000033 [2015] NZHC 3017

BETWEEN
LYNNE MARY BAILIE

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 16 November 2015

Appearances:

D McCaskill for the Appellant
R D Smith for the Respondent

Judgment:

1 December 2015

JUDGMENT OF NATION J

[1] At around 1.45 am on 29 March 2015, Ms Bailie was driving her car in Dunedin. The section of road on which she was driving has a sealed surface with a flat gradient and a speed limit of 50 kph. At the time, the road surface was wet from heavy rain. While navigating a left-hand bend, Ms Bailie lost control of her vehicle, crossed the centre line and crashed into the roadside barrier. She then crossed back into the left-hand lane where her vehicle came to a stop after crashing into a power pole. At the time, her nine year old autistic son was in the vehicle with her. Police officers’ attended shortly after the crash. Ms Bailie confirmed to the police that she was the driver of the vehicle. She had a cut to her forehead which was bleeding. One of the officers observed that there appeared to be “blood all over” the driver’s side airbag. A blood test eventually taken at the police station established that she
had 138 milligrams of alcohol per 100 millilitres of blood.

BAILIE v POLICE [2015] NZHC 3017 [1 December 2015]

[2] Ms Bailie defended charges of driving with excess blood alcohol and careless driving on the basis that someone else had been driving the car. The Judge found the charges proved.1

[3] On the blood alcohol charge, Judge Ingram sentenced Ms Bailie to 150 hours’

community work and disqualified her from holding or obtaining a drivers licence for

18 months.2 She was also ordered to pay $285 for blood test costs, to be paid off at

$10 per week. On the charge of careless use, Ms Bailie was disqualified from holding or obtaining a drivers licence for 18 months. She was also sentenced to pay reparation of $3,685 at $10 per week. Ms Bailie has appealed against the sentences imposed.

[4] An appeal must be allowed if, for any reason, there is an error in the sentence imposed on conviction and a different sentence should be imposed. This Court must dismiss the appeal in any other case.3 To allow an appeal, I must be satisfied that the sentence originally imposed was manifestly excessive.4

[5] The grounds for the appeal as set out originally were:

i. the sentence of 150 hours’ community work was manifestly excessive and inappropriate having regard to Ms Bailie’s circumstances;

ii. the appropriate sentence was a fine;

iii. the 18 months’ disqualification was manifestly excessive;

iv. the order for reparation of $3,685 on the careless driving charge was wrong because there had been no break-down of how the figure was calculated; and

v. a sentence of 18 months’ disqualification on the careless use charge was manifestly excessive.

1 Police v Bailie

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 Bailie v Police

Details

AGLC: Bailie v Police [2015] NZHC 3017
Case: [2015] NZHC 3017
Decision Date: 1 December 2015

CaseChat Overview and Summary

Lynne Mary Bailie appealed against her sentence for driving with excess blood alcohol and careless driving. Bailie was driving with a blood alcohol level of 138 milligrams per 100 millilitres of blood and crashed into a roadside barrier and power pole. Her nine-year-old autistic son was in the vehicle at the time. Bailie argued that she should not have been sentenced to 150 hours of community work and 18 months' disqualification from holding a driver's licence. The appeal hinged on whether the sentence imposed was manifestly excessive and inappropriate given Bailie's circumstances, particularly her role as the sole carer for her son with severe needs. The Court had regard to the pre-sentence report and medical information about Bailie's son, which highlighted the significant demands on Bailie's time and the stress she faces in caring for her son. The Court found that the sentence imposed was inappropriate given the further information available and varied the sentence. The Court reduced the period of disqualification to 12 months and the hours of community work to 80 hours on the blood alcohol charge. The disqualification in respect of the careless use charge was set aside. Supervision for six months was also imposed with the special condition that Bailie is to attend and complete any treatment or counselling as recommended and directed by her probation officer. The appeal was allowed and the sentence varied accordingly.

Orders