Borell v Police - [2014] NZHC 2422

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2014-470-000024 [2014] NZHC 2422

COLIN WILLIAM BORELL Appellant

v

NEW ZEALAND POLICE Respondent

Hearing: 30 September 2014

Appearances:

Ned Burke for the Appellant
Richard Jenson for the Respondent

Judgment:

3 October 2014

RESERVED JUDGMENT OF MOORE J [Appeal against sentence]

This judgment was delivered by on 3 October 2014 at 11:15am pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar
Date:

BORELL v NEW ZEALAND POLICE [2014] NZHC 2422 [3 October 2014]

[1] Mr Borell, aged 27, was charged with dangerous driving on 26 February

2014.

[2] On 2 April 2014, in relation to an earlier episode of dangerous driving, he was disqualified from driving for six months. He has two previous convictions for driving while disqualified in 2005 and 2007.

[3] Three weeks later, in the early hours of the morning, he was seen driving by a Police patrol which pulled in behind him and activated its red and blue flashing flights. Instead of stopping, Mr Borell accelerated away reaching speeds of 110 kph. For some minutes he continued to drive at speed, not slowing down for speed bumps, going through roundabouts and cutting corners. He only stopped when another patrol car blocked his way. This conduct resulted in him being charged with driving while disqualified (third or subsequent charge), dangerous driving and failing to stop.

[4] The following month Mr Borell was at a Tauranga bar when a fight erupted outside. Mr Borell moved behind one of those involved and struck him on the side of the head from behind. As a result of this “king hit” the victim fell to the ground unconscious and was taken to Tauranga hospital for treatment. The victim awoke with no memory of what happened. He received severe bruising to the back of his head and a cut to the side of his face.

[5] Mr Borell was charged with common assault under the Crimes Act 1961.

[6] Mr Borell has three previous convictions for fighting in a public place (2006,

2007 and 2010).

[7] He appeared in the District Court at Tauranga and following pleas of guilty was convicted and sentenced on the following charges:

(a) dangerous driving (26 February 2014): 12 months’ home detention,

200 hours’ community work and six months’ disqualification;

(b) dangerous driving (27 April 2014): 12 months’ home detention, 200

hours’ community work and 12 months’ disqualification (concurrent);

(c) driving while disqualified: 12 months’ home detention, 200 hours’

community work and 12 months’ disqualification (concurrent);

(d) failing to stop: three months’ disqualification (cumulative); and

(e) assault: 12 months’ home detention, 200 hours community work

(concurrent).

District Court decision

[8] The sentencing Judge noted Mr Borell’s criminal history was not insignificant although he had never served a term of imprisonment. His convictions were for a variety of offences, notably driving, class C drug offending and low level violence charges.

[9] The Judge registered his concern that the appellant had a history of failing to comply with…

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 Borell v Police

Details

AGLC: Borell v Police [2014] NZHC 2422
Case: [2014] NZHC 2422
Decision Date: 3 October 2014

CaseChat Overview and Summary

In the case of Borell v Police, Colin William Borell appealed against his sentence for multiple driving and assault charges. The District Court sentenced Borell to 12 months' home detention, 200 hours of community work, and disqualification from driving for various periods. Borell argued that the sentence was manifestly excessive, while the Police submitted that the sentence was within the appropriate range. The High Court found that the sentence was indeed excessive, particularly for the driving while disqualified and dangerous driving charges, and reduced the sentence to five and a half months' home detention and 150 hours of community work. The appeal was allowed, and the original sentences were quashed and replaced with the new sentences. All disqualifications from driving remain in place, with Borell able to drive again on 2 July 2016.

Orders