Boey v Police - [2012] NZHC 2159

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2012-409-000030

CRI-2012-409-000043 [2012] NZHC 2159

ANDREA KELLY BOEY
Appellant

v

NEW ZEALAND POLICE
Respondent

Hearing: 23 August 2012
(Heard at Christchurch)

Appearances: A N D Garrett for Appellant
D Orchard for Respondent

Judgment: 24 August 2012

JUDGMENT OF WILLIAMS J

Introduction

[1] On 29 March 2012, Andrea Boey was sentenced in the District Court to a total term of imprisonment of four years, six months. The sentence related to the
following charges, Ms Boey pleading guilty to all of them:

BOEY V NEW ZEALAND POLICE HC CHCH CRI-2012-409-000030 [24 August 2012]

Offence Offence date Section (all Land

Transport Act

1998)

Max Penalty

1.Driving while disqualified

2.Driving with excess breath alcohol

3.Driving while disqualified

4.Driving with excess blood alcohol causing death (LEAD)
5. Driving with excess breath alcohol (third or subsequent)

16 May 2011 s 32(1)(A) 3 months or

$4,500 fine
and 6 months (min) +
disqualification

26 May 2011 s 56(1) 3 months or

$4,500 fine
and 6 months (min) +
disqualification

26 May 2011 s 32(1)(A) 3 months or

$4,500 fine
and 6 months (min) +
disqualification

3 July 2011 s 61(1)(b) 10 years or

$20,000 fine
and 1 year (min)+
disqualification

13 December 2011 s 56(2) 2 years or

$6,000 fine and
1 year (min) +
disqualification
6.Driving while forbidden/unlicenced
driver

13 December

2011

s 52(1)(c) $10,000 fine.

[2] The lead offence was excess blood alcohol causing death for which the Judge imposed a sentence of four years, six months. Fourteen months’ imprisonment was imposed for the excess breath alcohol (third or subsequent), two months for the first excess blood alcohol, and two months for driving while disqualified charges. All terms were concurrent. Ms Boey was convicted and discharged on the driving while forbidden count.

The offending

[3] There were three groups of offending – the first in May, the second in July, and the last in December.

[4] On 16 May 2011, Ms Boey was caught driving. She had been disqualified the year before and the disqualification remained in place on that date.

[5] Just ten days later, on 26 May 2011, Ms Boey was again found driving while disqualified. She was breath-tested. Her reading was 490 ml of alcohol per litre of breath – 90 ml over the limit.

[6] She admitted she knew she was disqualified. She said that she was driving because she was the most sober person in the car (there were two passengers).

[7] Ms Boey pleaded guilty to both counts on 29 June 2011 and was remanded on bail for sentencing.

Second group

[8] On 3 July 2011, four days after those guilty pleas, Ms Boey went to the home of her friend and employer, William Hopwood. They drank wine together there. They went out. Ms Boey drove. On the return trip to Mr Hopwood’s address, Ms Boey lost control of the car at a bend. She was driving too fast. She collided with the corner strainer-post…

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 Boey v Police

Details

AGLC: Boey v Police [2012] NZHC 2159
Case: [2012] NZHC 2159
Decision Date: 24 August 2012

CaseChat Overview and Summary

The case of Boey v New Zealand Police involved an appeal against a sentence imposed on Ms Andrea Boey by the District Court. Ms Boey was sentenced to four years and six months imprisonment for multiple charges, including driving while disqualified, driving with excess blood and breath alcohol, and causing death by dangerous driving with excess blood alcohol. The legal issues before the court included the appropriateness of the starting point and uplift for sentencing, and whether the District Court had appropriately considered Ms Boey’s injuries and mitigating factors.

The High Court found that the District Court’s starting point of five years for the lead offence, and the 12-month uplift for aggravating factors, were both within the appropriate range. The Court emphasised that the doubling of the maximum penalty for causing death by dangerous driving with excess blood alcohol in 2011 indicated a sterner approach by Parliament towards such offences. The Court also found that the District Court had properly accounted for Ms Boey’s injuries and other mitigating factors by refusing to impose cumulative sentences on the third group of offending, effectively discounting the sentence by around six months.

Accordingly, the appeal was dismissed. The High Court upheld the District Court's sentence, finding that it was neither excessive nor inappropriate given the nature of the offences and the context of Ms Boey’s previous drink driving history.

Orders