Brampton v Police - [2015] NZHC 2618

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-296 [2015] NZHC 2618

TONY BRAMPTON

v

NEW ZEALAND POLICE

Hearing: 20 October 2015

Appearances:

G E Minchin for the Appellant
B Tantrum for the Respondent

Judgment:

23 October 2015

JUDGMENT OF THOMAS J

This judgment was delivered by me on 23 October 2015 at 2.15 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Solicitors:

Thomas & Co, Auckland. Meredith Connell, Auckland.

BRAMPTON v NEW ZEALAND POLICE [2015] NZHC 2618 [23 October 2015]

Introduction

[1] The appellant, Mr Troy Brampton, appeals against a sentence of two years and 11 months’ imprisonment on one charge of driving with excess blood alcohol causing death1 and one charge of failing to stop after an accident to ascertain injury.2

[2] The grounds of appeal are that first, the District Court Judge erred in refusing to make a referral to the Alcohol and Other Drugs Trial Court (AODTC), and secondly, the Judge erred by giving:

(a) an excessive uplift for the failing to stop charge; (b) an excessive uplift for previous convictions;
(c) insufficient credit for remorse; and

(d) insufficient credit for time spent on restrictive bail. [3] No issue is taken with the disqualification from driving.

Facts

[4] On 20 March 2015, the appellant had been drinking at a bar in Henderson over a period of a few hours. At around 9.40 pm he then got into his car and drove onto the road.

[5] The appellant was travelling at an estimated speed of 50 to 60 kilometres per hour before colliding with the rear of the deceased’s bicycle. Due to the force of the collision, the deceased was propelled off the rear of his bike on to the appellant’s bonnet. Because the appellant continued to drive forward, the deceased struck the vehicle windscreen and roof, before sliding down the passenger side of the vehicle and back onto the road surface. The deceased’s momentum caused him to slide across the road surface and underneath a parked car which was adjacent to the crash
scene.

1 Land Transport Act 1998, s 61(1)(b).
2 Land Transport Act 1998, s 36(1)(c).

[6] The appellant continued to drive directly to his home address. He went straight to his bedroom and fell asleep.

[7] The victim was pronounced dead by paramedics at the scene at 10.19 pm. He had suffered non-survivable injuries being: significant injuries to the chest cavity; numerous broken ribs down the left-hand side; a broken humorous bone in his left arm; severed right leg about the ankle; internal decapitation.

[8] At about 11.48 pm that night, the Police came to the appellant’s address to undertake breath alcohol procedures. His vehicle was located and described as “severely crash damaged and covered in victim’s blood”. The vehicle was later written off. The Police located the appellant asleep in his bed. His screening test provided a positive result of ‘over 400’.

[9] The appellant failed to cooperate and became physically and verbally abusive towards the…

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 Brampton v Police

Details

AGLC: Brampton v Police [2015] NZHC 2618
Case: [2015] NZHC 2618
Decision Date: 23 October 2015

CaseChat Overview and Summary

Brampton appeals against his sentence of two years and 11 months’ imprisonment for charges of driving with excess blood alcohol causing death and failing to stop after an accident to ascertain injury. The grounds of appeal are that the District Court Judge erred in not referring him to the Alcohol and Other Drugs Trial Court, and in giving an excessive uplift for the failing to stop charge, for previous convictions, insufficient credit for remorse, and for time spent on restrictive bail. The appeal court considers whether the decision to not refer to the Alcohol and Other Drugs Trial Court was appealable, and if the sentence imposed was manifestly excessive. The court concludes that the refusal to refer to the Alcohol and Other Drugs Trial Court is not appealable, and that while the sentence was not manifestly excessive, some reduction is warranted.

The appeal court found that the decision to not refer to the Alcohol and Other Drugs Trial Court was not appealable, as the statutory requirement to give reasons did not arise in the circumstances. The court also found that the sentence was not manifestly excessive, but that some reduction was warranted. The court considered that a starting point of three years and eight months’ imprisonment was appropriate for the charge of driving with excess blood alcohol causing death, but that some causative link between the appellant’s concussion and the offending should have been recognised in the uplift for failing to stop. The court also found that a discount of 15 per cent for remorse and the full 25 per cent discount for a guilty plea should have been awarded. The sentence is therefore reduced to two years and seven months’ imprisonment, with the disqualification imposed remaining.

Orders