[1] Mr Bechan was sentenced to 10 months’ imprisonment for one charge of driving with excess blood alcohol (third and subsequent). It was Mr Bechan’s fifth EBA offence in four and a half years. The maximum penalty for the charge is two years’ imprisonment and a fine not exceeding $6,000.

[2] The essential point on appeal is that the starting point of 18 months was manifestly excessive by reference to a number of relatively recent High Court decisions. Home detention is also sought.

Background

[3] In a reasonably detailed judgment, Judge Blackie set out the background to Mr Bechan’s prior offending, before turning to his assessment as to the appropriate starting point.

[4] As to the background offending, the Judge noted:

[5] You started off in 2010, and you were sentenced to community work and disqualified for six months.

[6] A few months later in 2010 you drove with excess blood alcohol two and a half times the legal limit, and you were sentenced to supervision and disqualified for six months.

[7] However, it was not long before in May 2011 you were found driving with excess breath alcohol, and also driving recklessly, and this time you were sentenced to three months’ home detention on one charge, and five months’ home detention on the other, and disqualified indefinitely.

[8]       In 2011, later that year, the same year, you were before the Court again on a third and subsequent occasion, in fact the fourth occasion, with
562 as a breath alcohol level, and you were sentenced to 10 months’ home
detention with special release conditions. [9]       You were disqualified indefinitely.
[10]     However, it seems that you managed to get your licence back, no doubt because of some nominal attendance at a breach [sic] alcohol treatment programme, which would seem to me does not reflect well on the administration if a person with your history can get their licence back so quickly, but it meant that in 2014, that will be 24 November, you were seen by members of the public, later by the police, to be driving a Holden car up and down Overton Road in Papatoetoe.

[11] The public were so concerned about the way you were driving they called the police, and I’m now told that you were driving up and down with four passengers, and you were a danger, not only to yourself or to your passengers, but to other road users.

[12] At the time you were hopelessly drunk, 1,048 micrograms of…

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 Bechan v Police

Details

AGLC: Bechan v Police [2015] NZHC 747
Case: [2015] NZHC 747
Decision Date: 17 April 2015

CaseChat Overview and Summary

Kameer Bechan was sentenced to 10 months' imprisonment for driving with excess blood alcohol, which was his fifth such offence in four and a half years. Bechan appealed the sentence, arguing that the starting point of 18 months was manifestly excessive. The appeal was heard by Whata J, who assessed the legal issues and the evidence provided. The court considered the aggravating and mitigating factors relevant to the sentencing, including the level of intoxication, the proximity of the current offence to prior offences, and Bechan's attempts to address his alcohol abuse. While the court acknowledged that Bechan's prior conduct had not previously demanded a sentence of imprisonment, it found that the escalation to a 10-month sentence did not properly reflect the escalation in the offending. The court allowed the appeal to the extent that the end sentence of 10 months was replaced with an end sentence of eight months. The court also found that home detention was not appropriate in this case.

The final orders of the court were that the appeal was allowed, and the end sentence of 10 months was replaced with an end sentence of eight months. The court also noted that home detention was not appropriate in this case, given Bechan's history of ignoring drink driving laws and his high level of intoxication. The court emphasised the need for a sentence that provided appropriate deterrence, denunciation, accountability, and public protection.

Orders