[1] Ms Beeston appeals against her sentence on 17 February 20121 for driving with excess breath alcohol having been convicted at least twice previously for a similar offence. The level of alcohol was 483 micrograms per litre of breath. Ms Beeston had been convicted on three previous occasions for driving with excess breath alcohol. The previous offences and sentences were:

(a) December 1997: 744 micrograms: 50 hours community service and six months disqualification from holding or obtaining a driver licence (which I will refer to as “disqualification”).

(b)March 1998: 457 micrograms: non-residential periodic detention for three months and six months disqualification.

(c) March 2000: 670 micrograms: two months non-residential periodic detention and disqualification for one year.

[2] Ms Beeston was also convicted in July 1998 for driving while disqualified. This arose out of the disqualification on the first occasion.

[3] The sentence imposed for the present offending was 120 hours of community work, nine months supervision with special conditions relating to alcohol counselling, and disqualification for one year and one day commencing on the date of sentence.

[4] Ms Beeston appeals on two principal grounds:

(a) The Judge was in error in declining to exercise the discretion under s 94 of the Land Transport Act 1998 (the Act) not to make an order of disqualification.

(b)The sentence of 120 hours community work was manifestly excessive.

1 Police v Beeston DC North Shore CRI-2011-090-008337, 17 February 2012.

[5] There was also a purported appeal against a bail condition, imposed on Ms Beeston’s first appearance on 27 October 2011, that she not drive pending (it appears) disposal of the prosecution. Mr Lee accepted that an appeal against the bail condition should have been made within the requisite time limit following the imposition of the condition. He did not pursue this point, but the condition has relevance.

The sentencing decision

[6] The Judge noted the previous convictions. He referred to the very short summary of facts relating to the present offending: the car was stopped by Police; Ms Beeston “exhibited signs of recent alcohol intake”; the breath alcohol reading was 483 micrograms. He also noted Ms Beeston’s advice to the constable that she thought it would be all right to drive.

[7] The Judge then said:

[5] The aggravating factor is this is now your fourth drink driving offence. I take into account you have entered a guilty plea at a relatively early stage…

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 Beeston v Police

Details

AGLC: Beeston v Police [2012] NZHC 1064
Case: [2012] NZHC 1064
Decision Date: 17 May 2012

CaseChat Overview and Summary

Ms Beeston appeals against her sentence for driving with excess breath alcohol, having been previously convicted three times for a similar offence. The High Court found that the District Court erred in not exercising its discretion under section 94 of the Land Transport Act 1998 (the Act) to substitute a community-based sentence for disqualification from holding or obtaining a driver's licence. The Court also found that the sentence of 120 hours community work was manifestly excessive, and reduced it to 80 hours. The District Court had sentenced Ms Beeston to 120 hours of community work, nine months supervision with special conditions relating to alcohol counselling, and disqualification from holding or obtaining a driver's licence for one year and one day. The High Court quashed the order for disqualification, reduced the community work sentence to 80 hours, and confirmed the sentence of nine months supervision with special conditions. The Court found that the District Court erred in not exercising its discretion under section 94 of the Act to substitute a community-based sentence for disqualification from holding or obtaining a driver's licence. The Court held that section 94 of the Act has a wide application and is not limited to people who are on an endless cycle of disqualification. The Court found that Ms Beeston met the pre-conditions in section 94(1) of the Act, and that it was appropriate to sentence her to a community-based sentence. The Court found that the circumstances of the offence and the circumstances of Ms Beeston weighed substantially in favour of exercising the discretion by not imposing disqualification. The Court found that the sentence of 120 hours community work was manifestly excessive, and reduced it to 80 hours. The Court held that the appropriate length of the community work sentence is 80 hours, having regard to all the circumstances of the offence and the offender, and the fact that there is no appeal against the sentence of nine months supervision.

Orders