Burgess v Police - [2021] NZHC 1370

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CRI-2021-454-16

[2021] NZHC 1370

BETWEEN
DAVID SHAUN BURGESS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 10 June 2021

Appearances:

M B Ryan for the Appellant

E R Pairman for the Respondent

Judgment:

10 June 2021

ORAL JUDGMENT OF PALMER J

Solicitors:
M B Ryan, Palmerston North
BVA The Practice, Palmerston North

BURGESS v NEW ZEALAND POLICE [2021] NZHC 1370 [10 June 2021]

What happened?

[1] Just before midnight on Friday 31 July 2020, Police alleged they witnessed a vehicle speeding on Main Street, Palmerston North and attempting to evade them. Mr David Burgess was located walking away from the vehicle with the keys in his pocket. He was arrested and refused to undergo breath and alcohol procedures. Just past midnight on Sunday 11 October 2020 in Palmerston North, the Police stopped Mr Burgess and conducted a breath test. There were two passengers in the back of his ute. The reading was 654 micrograms of alcohol per litre of breath. Mr Burgess has been convicted twice before for driving with excess breath alcohol, in January 2017 (at 597 micrograms) and March 2018 (at 472 micrograms).

[2] Mr Burgess was charged with refusing to provide a blood specimen and driving with excess blood alcohol, having been convicted at least twice previously of relevant specified offences. These offences each carry a maximum penalty of two years imprisonment or a $6,000 fine and a mandatory minimum disqualification from driving for 12 months. Mr Burgess pleaded guilty. His guilty plea to the refusal to provide a blood specimen was on the basis that he was not the driver but a passenger in the car. The summary of facts, which was the basis on which he pleaded guilty, did not state he was the driver. He was originally charged with dangerous driving on 31 July 2020 as well, but no evidence was offered when the guilty plea was entered to the other charge.

[3] On 23 April 2021, in the Palmerston North District Court, Judge C D Sygrove sentenced Mr Burgess to home detention for six months and two weeks.1 He identified the following as aggravating factors: these two blood alcohol offences being in quick succession; there being two previous breath or blood alcohol offences in the last five years; and a very poor standard of driving on 11 October 2020 with passengers being in the back of the ute.2 The Judge set a starting point of 18 months’ imprisonment, relying on a range of 12 to 18 months identified by the High Court in Samson v Police.3 He gave a 25 per cent discount for an early guilty plea.4 The sentence of six months

1 Police v Burgess [2021] NZDC 8804.
2 At [3].
3 At [4], citing Samson v Police [2015] NZHC 748.
4 At [4].

and two weeks was for each offence, to be served concurrently. He noted the pre- sentence report…

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.

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Details

Case: [2021] NZHC 1370
Decision Date: 10 June 2021

CaseChat Overview and Summary

The appellant, David Shaun Burgess, appealed against his sentence for refusing to provide a blood specimen and for driving with excess blood alcohol. The High Court of New Zealand reviewed the case to determine if the sentence was manifestly excessive. The appellant argued that the starting point for the sentence was too high and should have been less than nine months imprisonment, considering the similarities to his previous cases and the fact that the offence of refusing the blood specimen did not involve driving. The respondent conceded that the sentence was indeed excessive but submitted that a starting point of between nine and 12 months’ imprisonment was appropriate. They also argued that the dangerous driving and the breath alcohol level were relevant aggravating factors.

The court held that the end sentence was not within the available range and was manifestly excessive. The court found that the length of time since the previous drink driving convictions and the manner of driving were valid aggravating factors, but only one of the convictions involved driving, which the judge did not appear to appreciate. The court also noted that the appellant had no previous experience of electronic monitoring. The court concluded that a starting point of no more than 12 months’ imprisonment for both offences was appropriate, and it would have started at nine months. The court commuted the sentence to a community-based sentence, given the appellant's history, his drink-driving problem, and the fact that he had not previously been subject to electronic monitoring.

The court upheld the appeal, quashed the sentence, and sentenced the appellant to four months’ community detention and nine months’ supervision from now, subject to the conditions proposed in the original Provision of Advice to Court report.

Orders