Clausen v Police - [2013] NZHC 1240

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2013-463-31 [2013] NZHC 1240

BETWEEN LEIF CLAUSEN Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 29 May 2013

Appearances:

HS Edward for Appellant
LL Owen for Respondent

Judgment:

29 May 2013

JUDGMENT OF TOOGOOD J

CLAUSEN v NEW ZEALAND POLICE [2013] NZHC 1240 [29 May 2013]

Introduction

[1] On 20 March 2013, Leif Clausen pleaded guilty to his sixth charge of driving with excess breath alcohol or blood alcohol. He had been stopped for a routine check at 6:24 pm on Sunday, 16 December 2012, and was found to be displaying signs of recent consumption of alcohol. His 13-year-old daughter was with him in the car. The evidential breath test reading showed 946 micrograms of alcohol per litre of breath; nearly two-and-a-half times the permissible limit of 400 micrograms. Because of his previous convictions, Mr Clausen was liable to a maximum penalty of two years’ imprisonment or a $6,000 fine; and there is a mandatory
disqualification period of more than one year.1

[2] Judge McGuire sentenced him to 12 months’ imprisonment and disqualified him from driving indefinitely.

[3] Mr Clausen has appealed against this sentence. His challenge to this sentence is based on the failure of the District Court Judge, in light of the conclusion that a short term prison sentence was appropriate, to consider home detention or another community-based sentence as an appropriate alternative.2

[4] The question at issue, therefore, is whether Judge McGuire erred in refusing

to adopt the probation officer’s recommendation of a community-based sentence.

Assessment of appropriate term of imprisonment not challenged

[5] Mr Edward observed in his written submissions that the appellant was not told by Judge McGuire what discount was allowed to him for his early plea of guilty and what further discount, if any, was allowed for personal mitigating factors, including attempts at rehabilitation and genuine remorse.

[6] It is clear that the District Court Judge wanted to give the appellant a very brief but powerful message that imprisonment was the only sentencing option
justified by the circumstances of the offending and the appellant's disgraceful drink-

1 Land Transport Act 1998, s 56(1) and (4).
2 Sentencing Act 2002, ss 8(g), 10A and 15A.

driving record. In making his views known succinctly, the Judge did not follow the conventional sentencing approach of setting a starting point to reflect the nature of the offending; increasing or reducing the starting point based on personal aggravating or mitigating factors; and then allowing a discount (in this case, of 25 percent) for the early guilty plea. Nevertheless, Mr Edward accepted that, although that course was not followed, the end sentence of 12 months’ imprisonment was one which was available to the Judge. That was a realistic position for counsel to take.

[7] Approaching the sentencing of this offender on a first impression basis, I too would have reached the conclusion that an effective end sentence of at least
12 months’ imprisonment was appropriate. I would have taken a starting…

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 Clausen v Police

Details

AGLC: Clausen v Police [2013] NZHC 1240
Case: [2013] NZHC 1240
Decision Date: 29 May 2013

CaseChat Overview and Summary

Clausen v Police is a New Zealand case in which Leif Clausen appealed a District Court decision to sentence him to 12 months' imprisonment for driving with excess breath alcohol. Clausen argued that the District Court Judge should have considered a community-based sentence instead. The central issue was whether the District Court Judge erred in not adopting the probation officer's recommendation of a community-based sentence. The High Court found that the District Court Judge's decision to impose imprisonment was justified given the seriousness of Clausen's repeated drink-driving offenses, the high level of alcohol in his system, and his disregard for his daughter's safety. Clausen's late self-referral to alcohol counseling and his history of repeated offenses undermined the probation officer's assessment of a low risk of reoffending. The High Court upheld the District Court's decision, finding that imprisonment was necessary to fulfill the purposes of accountability, denunciation, deterrence, and community protection. The appeal was dismissed.

Orders