Baillie v Police - [2021] NZHC 1132

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2021-443-000017

[2021] NZHC 1132

BETWEEN
JAMIE ADSLEY BAILLIE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 6 May 2021

Appearances:

N Bourke for the Appellant

L A Blencowe for the Respondent

Judgment:

20 May 2021

JUDGMENT OF NATION J

[1] The appellant, Mr Baillie, was sentenced to 13 and a half months’ imprisonment for driving while disqualified with at least two previous convictions for similar offending. He had five previous convictions for driving while disqualified and seven previous convictions for excess alcohol or related driving offences. Mr Baillie appeals the sentence.

Subject offending

[2] On 7 November 2018, Mr Baillie was disqualified from driving any motor vehicle for an indefinite period.

[3] At about 6.25 pm on 29 December 2020, Mr Baillie drove a Mercedes Benz motor vehicle north of Wanganui, near Okawa. He overtook a vehicle on a bridge, travelling at approximately 130 kilometres per hour. Approaching upcoming blind corners, he cut across the centre line and crashed into a hedge on a 35 kilometres per hour advisory corner. He exited the driver’s seat and ran away. He was found by the

BAILLIE v POLICE [2021] NZHC 1132 [20 May 2021]

Police a short time later. Police smelt alcohol on his breath and required him to undergo a breath screening test. He refused to blow into the breath testing device. At the Hawera Police station, Mr Baillie refused to provide a sample of breath when requested and subsequently refused to allow a blood sample to be taken. In explanation, he said he was not driving and named someone else as the driver.

Previous offending

[4] On 29 November 2017, Mr Baillie was stopped by Police and forbidden to drive any motor vehicle until he had obtained a driver’s licence. At that time, he had been convicted of alcohol impaired driving related offences five times previously for offences committed in 2003, 2007, 2009, 2012 and 2015.

[5] On 21 March 2018, he drove on the state highway. An evidential breath test gave a reading of 0442 micrograms of alcohol per litre of breath.

[6] On 5 August 2018, Mr Baillie was driving in Marton. The vehicle ran out of petrol and came to a stop on the side of the road. Mr Baillie was on the side of the street. The Police enquired who was the driver. Mr Baillie gave false information as to his identity. At the Police station, Mr Baillie refused to undergo breath testing or provide a blood specimen.

[7] On 7 November 2018, Mr Baillie was convicted of being an unlicensed driver and failing to comply with a prohibition, and the excess breath alcohol offence of 21 March 2018. He was also convicted for refusing a request for a blood specimen (third or more offence) on 5 August 2018. He was sentenced to home detention for three months, indefinite disqualification and subject to a zero alcohol licence.

[8] On…

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.

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Details

Case: [2021] NZHC 1132
Decision Date: 20 May 2021

CaseChat Overview and Summary

The appellant, Mr Jamie Adsley Baillie, appeals his sentence for driving while disqualified, with at least two previous convictions for similar offences, and his refusal to provide a breath test and blood specimen. Mr Baillie's driving was dangerous, occurring on 29 December 2020 at high speed, cutting across blind corners, and crashing into a hedge. He has five previous convictions for driving while disqualified and seven previous convictions for excess alcohol or related driving offences. He was sentenced to 13 and a half months' imprisonment. The primary issue for the court was whether the District Court Judge erred in declining to impose a sentence of home detention instead of imprisonment. The court found that there was no error in the Judge's decision. The court considered the statutory purposes of holding Mr Baillie accountable, inducing a sense of responsibility, denouncing the offending, deterring him from further offending, and protecting the community. The Judge had regard to the nature of Mr Baillie's driving, his history of convictions, and the fact that he was still subject to a nine-month supervision sentence and had been released from community detention only a month before this offence. The Judge considered rehabilitative programmes but concluded that the statutory purposes could not be achieved through a sentence other than imprisonment. The appeal was dismissed.

Orders