Bramley v Police - [2020] NZHC 1788

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2020-463-59

[2020] NZHC 1788

BETWEEN
MICHAEL JOHN BRAMLEY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 22 July 2020 (Heard at Tauranga)

Appearances:

J S Myers for the appellant S J Revell for the respondent

Judgment:

22 July 2020

ORAL JUDGMENT OF PALMER J

Counsel/Solicitors:
Public Defence Service, Tauranga
Pollett Legal, Crown Solicitor, Tauranga

BRAMLEY v NEW ZEALAND POLICE [2020] NZHC 1788 [22 July 2020]

What happened?

[1] On 15 May 2019, Michael Bramley, aged 70, drove with excess breath alcohol along what is often a busy main road in Mt Maunganui, in the middle of the day. He abandoned the car and left it in the middle of the road with the engine running. He was arrested after members of the public called Police due to concerns about his driving. The reading was 1,541 micrograms of alcohol per litre of breath, six times the legal limit. This was his sixth drink driving offence though the last offence was in 2012. The maximum penalty for this offence is therefore two years’ imprisonment or a $6,000 fine. On 24 June 2019, Mr Bramley pleaded not guilty on the advice of his then counsel. On 9 August 2019, following further disclosure, Mr Bramley pleaded guilty. There were several adjournments of Mr Bramley’s sentencing to allow preparation of a specialist report to assess his potential addiction to alcohol and to allow him to obtain a suitable address for home detention. No suitable address was obtained. A letter from Mr Bramley’s doctor did exist at the time of the sentencing, but Mr Bramley had apparently not given it to counsel, perhaps because of Mr Bramley’s forgetfulness which is attested to in the letter.

[2] On 4 June 2020, in the Tauranga District Court, Judge P G Mabey QC sentenced Mr Bramley to 11 months’ imprisonment and disqualified him from driving for the minimum period, of one year and one day.1 The Judge referred to the high alcohol level and Mr Bramley’s previous convictions. He set a starting point of 12 months’ imprisonment, incorporating provision for Mr Bramley’s previous convictions. He gave a discount of one month for the guilty plea which he characterised as coming “at a late stage”.2 The Judge was satisfied Mr Bramley was within the exception for the alcohol interlock laws which rendered him liable for disqualification. He is able to apply for a zero-alcohol licence, which requires a driver to maintain an alcohol limit of zero while driving. The Judge also convicted and discharged Mr Bramley for an outstanding charge of breach of bail. Mr Bramley appeals the sentence.

1 New Zealand Police v Bramley [2020] NZDC 10500.
2 At [4].

Submissions

[3] Mr Myers, for Mr Bramley, submits the end sentence was manifestly excessive. He submits the starting point of 12 months was appropriate and, on the basis of other sentences for sixth convictions, a higher starting point was not justified.3 Even…

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 Bramley v Police

Details

AGLC: Bramley v Police [2020] NZHC 1788
Case: [2020] NZHC 1788
Decision Date: 22 July 2020

CaseChat Overview and Summary

In the case of Bramley v Police, Michael Bramley, the appellant, contested the sentence handed down by the Tauranga District Court. Bramley was found guilty of driving with an excessive breath alcohol level, a sixth offence for him. The Tauranga District Court sentenced Bramley to 11 months’ imprisonment and disqualified him from driving for a minimum period of one year and one day. Bramley appealed this sentence on the basis that it was manifestly excessive. The primary legal issue for the court to decide was whether the sentence imposed by the District Court contained a material error and if a different sentence should be imposed. The court considered the starting point for the sentence, the discounts for the guilty plea, rehabilitation efforts, and Bramley’s age and health conditions. The court held that the starting point of 12 months was appropriate and that the discounts should be recalculated. The court found that the guilty plea discount should be two months, or just over 16 per cent, instead of one month. The court also found that a discount of one month, or around eight per cent, was warranted for rehabilitation efforts and the remorse it implies. Additionally, the court found that a two-month discount for Bramley’s age and health conditions was warranted. Therefore, the court upheld the appeal and reduced the sentence to seven months’ imprisonment. The other aspects of the District Court sentencing decision remained intact.

Orders