[1] Mr Carran was sentenced in the Invercargill District Court on a charge of excess breath alcohol to a sentence of seven months imprisonment and disqualified from holding or maintaining a driver’s licence for a period of 18 months. He was also subject to standard release conditions and two special conditions following release.

[2] Mr Carran had five previous convictions relating to excess breath alcohol. Nevertheless he appeals the sentence essentially on the basis that instead of imprisonment he should have received a sentence of community detention or in the alternative a sentence of seven months imprisonment was excessive.

Sentencing notes

[3] The Judge described the facts of the offending in this way:

CARRAN v POLICE [2013] NZHC 1450 [17 June 2013]

[2] The facts relating to your offending are these: At 12.50 am on Sunday 190 March this year you were driving a Nissan motor vehicle on Wreys Bush-Otautau Road near Otautau. You were stopped by the police who were performing a random stop, you were breath tested. You were found to have a breath alcohol reading of 1266 micrograms of alcohol per litre of breath. In explanation you stated you thought you would drive down to Otautau to pick up your wife who was at another address.

[4] The Judge then describes the offender’s personal background, namely that he is a man of 47 years of age, described as a high risk of reoffending in a similar manner, that he has advised the probation officer that he is motivated to attend an alcohol and drug related course if instructed. The Judge notes that the appellant said he did not believe he had a problem with alcohol. His prior sentence of supervision for drink driving offending in 2003 is also noted. The Judge then summarises the arguments presented by Mr Slater, then defence counsel. The Judge then records that he has regard to ss 7 and 8 of the Sentencing Act 2002 and was mindful of s 16. He had regard to leading decisions for sentencing offenders for this type of
offending, namely Clotworthy v Police; R v McQuillan and R v Stoves.1 He also

considered decisions of the High Court in Noble v Police and Bidois v Police2 referred to by Mr Slater. The Judge opines that the case of Noble is the most helpful by way of guidance. He said that there was an 11 year gap since the last similar offence. The offender in that case showed a lack of insight about the effect of alcohol on him and accompanying lack of remorse. He noted that there was a lack of real and any genuine interest in rehabilitation until shortly prior to sentencing. He said that in Noble on a…

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 Carran v Police

Details

AGLC: Carran v Police [2013] NZHC 1450
Case: [2013] NZHC 1450
Decision Date: 17 June 2013

CaseChat Overview and Summary

The High Court of New Zealand heard an appeal against sentence brought by Allan James Carran, who was sentenced to seven months imprisonment by the Invercargill District Court for excess breath alcohol. The appellant argued that the sentence was excessive and that he should have been sentenced to community detention rather than imprisonment. The Court was required to decide whether the sentence imposed by the District Court was appropriate in the circumstances, and whether there was any error in the exercise of the sentencing discretion.

The Court found that the sentence of imprisonment was out of sync with the trend of sentencing for this type of offending since 2007, and that the Judge had not been taken to the comprehensive survey of authorities that showed a preference for community detention in similar cases. The Court also found that the appellant was a recidivist offender, but did not fall into the category of a repeat offender who exhibits contumelious disregard for the drink driving laws, given the ten year gap between his offending. The purposes and principles of the Sentencing Act most obviously in play were the need to denounce and deter this offending, rehabilitation and the requirement to impose the least restrictive sentence. The Court noted that the appellant was a farmer and that imprisonment or home detention would plainly impact on his ability to run the farm.

The Court held that the appellant should be given community detention. The considerable gap between his drink driving offending, and the absence of several of the aggravating factors, suggest to the Court that community detention is a proportionate response. The Court proposed to replace the sentence of imprisonment with a sentence of community detention for a period of six months, subject to the conditions set out in the probation report. After receiving submissions of counsel, the term of the community detention was reduced to four months to take into account time served.

The Court's final orders were that the sentence of imprisonment be replaced with a sentence of community detention for a period of four months, to take into account time served, and that the conditions of the community detention be as specified by probation but with the start date to be fixed by probation.

Orders