Blyth v Police - [2012] NZHC 875

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-000074 [2012] NZHC 875

BETWEEN ANDREW RAYMOND BLYTH Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 2 May 2012

Counsel: G J Newell for Appellant
I S Auld for Respondent

Judgment: 2 May 2012

ORAL JUDGMENT OF COLLINS J

Introduction

[1] The appellant was stopped at a police checkpoint in the early hours of

22 May 2011. Breath testing procedures were carried out. Subsequent analysis of the blood specimen taken from the appellant revealed a blood alcohol level of 111 milligrams of alcohol per 100 millilitres of blood.

[2] The appellant has one previous conviction for driving with excess breath alcohol on 27 November 2007. On that occasion he was driving with
479 micrograms of alcohol per litre of breath. He was fined $500 and disqualified from driving for six months in the North Shore District Court.

[3] When the appellant again appeared in the North Shore District Court on

28 February 2012 in relation to the events of 22 May 2011 he vacated an earlier plea of not guilty and entered a plea of guilty to the charge. He was sentenced to 80
hours’ community work and disqualified from driving for a period of 11 months.

BLYTH V NEW ZEALAND POLICE HC AK CRI-2012-404-000074 [2 May 2012]

Grounds of appeal

[4] The appellant appeals both limbs of the sentence imposed on 28 February

2012. That is to say, he challenges both the imposition of a sentence of community work and the length of the period of disqualification imposed upon him on the grounds that both penalties are “clearly excessive or inadequate or inappropriate” within the meaning of s 121(3)(b) of the Summary Proceedings Act 1957.

Community work or a fine?

[5] Counsel for the appellant cited a number of helpful authorities which show that a fine is usually imposed upon those convicted of a second blood/breath alcohol offence. I will not refer to all of the authorities that have been referred to me by both counsel. Suffice to record that in Palmer v Police Courtney J said:[1]
[1] Palmer v Police HC Auckland CRI-2009-404-262, 5 February 2010 at [5].

A review of recent similar cases indicates that a fine together with disqualification is the usual sentence imposed on second drink-driving offences.

Her Honour cited the following cases in support of her understanding of the usual sentence imposed for this type of offending:
Wright v Police;[2]
[2] Wright v Police HC Christchurch A104/02, 4 October 2005.

Burke v Police;[3]
[3] Burke v Police HC Christchurch CRI-2007-409-165, 20 September 2007.

Jones v Police;[4] and

Martin v Police.[5]

[4] Jones v Police HC Auckland CRI-2007-404-352, 21 February 2008.

[5] Martin v Police HC Auckland CRI-2008-404-44, 6 May 2008.

[6] In Palmer v Police Courtney J overturned a sentence of 120 hours’
community work and 12 months’ disqualification for a second drink-driving offence and substituted a fine of $2,000. The disqualification period remained untouched.

[7] The appellant referred me to Burke v…

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 Blyth v Police

Details

AGLC: Blyth v Police [2012] NZHC 875
Case: [2012] NZHC 875
Decision Date: 2 May 2012

CaseChat Overview and Summary

The High Court of New Zealand heard an appeal from the appellant, Andrew Raymond Blyth, against the sentence imposed on him by the North Shore District Court. The appellant had been convicted of a second drink-driving offence, with a blood alcohol level of 111 milligrams of alcohol per 100 millilitres of blood. The appellant had previously been convicted of a similar offence in 2007. The North Shore District Court had imposed a sentence of 80 hours’ community work and disqualified him from driving for 11 months. The appellant appealed the sentence, arguing that both the community work and the length of the disqualification period were excessive.

The court was required to decide whether the sentence imposed by the North Shore District Court was appropriate, or whether it was clearly excessive, inadequate or inappropriate within the meaning of s 121(3)(b) of the Summary Proceedings Act 1957. The court considered whether a fine should be imposed instead of the community work, and whether the length of the disqualification period was appropriate.

The court concluded that the sentence of community work was clearly excessive, as it was out of line with sentences normally imposed on those convicted of a second blood/breath alcohol offence. The court also noted that the District Court Judge had not given sufficient weight to the provisions of s 8(g) and s 13 of the Sentencing Act 2002. The court substituted the sentence of community work with a fine of $1,500, and also substituted the 11-month disqualification period with a nine-month disqualification period, taking into account the appellant’s self-employment and dependence on private transport. All other orders made by the District Court remained in place.

Orders