Burdon v Police - [2017] NZHC 3088

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2017-412-53 [2017] NZHC 3088

BETWEEN
ANTONY MARK BURDON

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 11 December 2017

Appearances:

J A Westgate for Appellant
R R Smith for Respondent

Judgment:

12 December 2017

JUDGMENT OF NICHOLAS DAVIDSON J

Background to appeal

[1] On 27 May 2017 Mr Burdon, the appellant, was stopped by police for speeding. An evidential breath test disclosed 631 micrograms of alcohol per litre of breath. He was subject to a zero alcohol licence at the time, having previously been convicted for driving with excess breath alcohol.

[2] The appellant was sentenced in the District Court to 20 months imprisonment for driving with an excess breath alcohol while holding a zero alcohol licence.1 He appeals on the grounds that the sentence was manifestly excessive based on the starting
point adopted by the Judge, and insufficient discount given for his guilty plea. Mr

1 Police v Burdon [2017] NZDC 20252.

Westgate, for the appellant, submits that an end sentence of no more than 13 months imprisonment should have been imposed.

Jurisdiction

[3] Appeals against sentence are brought under s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. This Court may only allow such appeal if it is satisfied there has been an error in the imposition of the sentence, and that a different sentence should be imposed.2

[4] If the sentence is justified under relevant sentencing principles, it is not for this Court to substitute its own views for those of the sentencing Judge. Only if the sentence is “manifestly excessive” will the Court interfere with the exercise of the Judge’s discretion.

District Court sentencing

[5] In sentencing the appellant, the Judge recognised the following aggravating factors of the offending:

(a) the prolonged and repetitious history of driving with excess breath alcohol;

(b) the recent conviction for that offence;

(c) that the appellant held a zero alcohol licence at the time;

(d) the appellant was speeding at 114km/hr in a 100km/hr zone.

[6] The Judge was sceptical of the appellant’s remorse, as had he been truly remorseful, he would have learnt his lesson from the many times he had appeared
before the court, and whilst in prison.

2 Criminal Procedure Act 2011, ss 250(2) and 250(3).

[7] The Judge adopted a starting point of 20 months imprisonment and allowed a ten per cent discount for the guilty plea. An end sentence of 18 months imprisonment was imposed. The appellant was disqualified from driving for a further 20 months.

Submissions on appeal

[8] Mr Westgate submits that the appellant’s offending falls within upper category (b), or lower category (c) of Samson v Police.3 Aggravating factors are the high level of intoxication, dangerous driving, the recent conviction for excess breath alcohol and the long history of driving related offending. Mr Westgate submits that a starting point of no more than 18…

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 Burdon v Police

Details

AGLC: Burdon v Police [2017] NZHC 3088
Case: [2017] NZHC 3088
Decision Date: 12 December 2017

CaseChat Overview and Summary

The case of Burdon v Police involved the appellant, Antony Mark Burdon, who was appealing against his sentence for driving with excess breath alcohol while holding a zero alcohol licence. The appeal was heard by the High Court of New Zealand in Dunedin. The appellant was sentenced in the District Court to 20 months imprisonment, a sentence he deemed manifestly excessive and insufficiently discounted for his early guilty plea.

The legal issues at hand were whether the starting point of 20 months imprisonment was within the appropriate sentencing range, and if the discount for the early guilty plea was justified. The appellant argued that the starting point was too high and that a greater discount should have been applied for his early guilty plea. The respondent, New Zealand Police, contended that the starting point was within the acceptable range and that the appellant's remorse and rehabilitative efforts were not exceptional enough to warrant a greater discount.

The Court found that the starting point of 20 months imprisonment was within the range set out in Samson v Police, considering the appellant's history of driving with excess breath alcohol and the fact that he held a zero alcohol licence at the time of the offence. The Court also concluded that the Judge was not bound to apply a 25 per cent or even 20 per cent discount for the early guilty plea. The Court held that the Judge was entitled to be sceptical of the appellant's remorse, as he had been convicted of similar offences multiple times before. The Court further held that while a greater discount might have been allowed, the end sentence could not be described as manifestly excessive.

The appeal was ultimately dismissed by the Court. The seriousness of the appellant's offending, and his disregard for the law, justified the sentence imposed. The Court emphasised the importance of denunciation and deterrence in cases like this, and found that the sentence was appropriate given the appellant's history and the risk he posed to the public.

Orders