Blackburn v Police - [2023] NZHC 3780

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2023-409-172

CRI-2023-409-174 [2023] NZHC 3780

BETWEEN
STEPHEN THOMAS BLACKBURN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 8 November 2023

Appearances:

A C Trinder for the Appellant

B W D Alexander for the Respondent

Judgment:

19 December 2023

Reissued:

19 December 2023

JUDGMENT OF PRESTON J

This judgment was delivered by me on 19 December 2023 at 4.00 pm, pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

BLACKBURN v NEW ZEALAND POLICE [2023] NZHC 3780 [19 December 2023]

Introduction

[1] Stephen Blackburn was sentenced to 27 and a half months’ imprisonment on the following charges:

(a)driving while suspended (third or subsequent);1

(b)driving with excess breath alcohol (third or subsequent);2

(c)refusing to provide a blood specimen (third or subsequent);3

(d)failing to accompany police;4 and

(e)failing to answer bail.5

[2] Mr Blackburn was convicted and discharged on the refusing to accompany and failing to answer bail charges.

[3] He appeals this sentence on the basis that a s 27 report, not before the District Court, is now available and justifies a discrete discount.

[4] I must allow the appeal if satisfied there is an error in the sentence imposed and a different sentence should be imposed.6 I must dismiss the appeal in any other case. The appellate court does not simply substitute its own view for that of the sentencing judge.7 Rather, it must be shown the sentence is manifestly excessive or

1      Land Transport Act 1998, s 32(1)(c) and (4); maximum penalty 2 years’ imprisonment or a $6,000 fine. The Court must order the person to be disqualified from holding or obtaining a driver licence for more than 1 year.
2      Land Transport Act, s 56(2) and (4); maximum penalty 2 years’ imprisonment or a $6,000 fine. The Court must order the person to be disqualified from holding or obtaining a driver licence for more than 1 year.
3      Land Transport Act, s 60(1)(a) and (3); maximum penalty 2 years’ imprisonment or a $6,000 fine. The Court must order the person to be disqualified from holding or obtaining a driver licence for more than 1 year.
4      Land Transport Act, s 59(1)(b); maximum penalty of a fine not exceeding $4,500 and the Court may disqualify the person from holding or obtaining a driver licence for such period as the Court thinks fit.
5      Bail Act 2000, s 24; maximum penalty 3 months’ imprisonment or a $1,000 fine.
6      Criminal Procedure Act 2011, s 250(2).
7      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].

wrong in principle.8 The focus is on the end sentence, rather than the process by which the sentence was reached.9

Facts

[5] Just before midnight on 22 December 2021, Mr Blackburn was driving in Rangiora. He was stopped by police and asked to undergo a breath screening test. Mr Blackburn refused that request and refused again when police required him to accompany them…

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 Blackburn v Police

Details

AGLC: Blackburn v Police [2023] NZHC 3780
Case: [2023] NZHC 3780
Decision Date: 19 December 2023

CaseChat Overview and Summary

In the High Court of New Zealand, Stephen Thomas Blackburn appealed against his sentence for multiple driving-related offences, including driving while suspended, driving with excess breath alcohol, and refusing to provide a blood specimen. Blackburn was sentenced to 27 and a half months’ imprisonment by the District Court. The appeal was filed beyond the statutory time limit, and the respondent, New Zealand Police, took a neutral stance on the appeal.

The court had to decide whether to grant leave to appeal out of time and whether to admit the s 27 report, which was not before the District Court. The court also needed to determine if a discount was warranted based on the new evidence and if home detention would be appropriate.

The court granted leave to appeal out of time, considering the interests of justice and the absence of prejudice to the Crown. The s 27 report was admitted despite not being fresh, as it contained significant new information that was not available at the time of sentencing. The court found that a 10 per cent discount was appropriate due to the appellant's personal background factors, leading to a reduced sentence of 24 and a half months’ imprisonment. The court noted that home detention was not appropriate given the appellant's history of non-engagement with rehabilitation.

The appeal was allowed, and the sentence was substituted to 24 and a half months’ imprisonment. The convictions and discharges on the charges of refusing to accompany police and failing to answer bail were not disturbed.

Orders