Coles v Police - [2013] NZHC 3188

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CRI 2013-476-0006 [2013] NZHC 3188

BETWEEN MICHAEL DESMOND COLES Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 2 December 2013

Counsel: J B Lovely for Appellant
N M Willcocks for Respondent

Judgment: 2 December 2013

(ORAL) JUDGMENT OF HEATH J

Solicitor:
RSM Law, Timaru
Crown Solicitor, Timaru

COLES v NEW ZEALAND POLICE [2013] NZHC 3188 [2 December 2013]

The appeal

[1] Mr Coles appeals against a sentence of one year and three months imposed in the District Court at Timaru on 8 October 2013, on driving related charges.1 The charges before the Court were driving with an excess breath alcohol concentration, driving while disqualified, failing to stop and dangerous driving. Both the excess breath alcohol and driving while disqualified charges were in their aggravated form meaning that Mr Coles had offended on three or more occasions for such offences.

Facts

[2] At about 11.55pm on 5 April 2013, Mr Coles was driving a motor vehicle along Main Street, Otautau. The weather conditions were clear and the road was dry. The particular area in which he was driving had a speed limit of 50km/h. It was residential in nature.

[3] Mr Coles’ vehicle was noticed by a police patrol vehicle as having only one headlight illuminated. The patrol car did a u-turn and fell in behind Mr Coles, activating red and blue lights and sirens to indicate that he should stop. Instead of stopping, Mr Coles accelerated continuing along Main Street and into George Street and then into Grey Street and into Elles Road. During the time he was travelling at speeds of between 50–60 km/h and had failed to slow at give way signs at intersections.

[4] At the intersection of Elles Road and Main Street, Mr Coles drove through a give way sign and over a railway line without slowing or looking for oncoming traffic. He continued along Main Street reaching a speed of 100km/h. He continued on his journey in residential areas and travelling in excess of 70km/h.

[5] As the police chase continued Mr Coles tended to accelerate away from the police vehicle to the point that he reached a speed in excess of 135km/h. Eventually the pursuit was abandoned by the police for safety reasons. Eventually Mr Coles was located at an address in Otautau. When spoken to it was noticed that he was
affected by alcohol and a breath screening test proved positive. The result of the

1 Police v Coles DC Timaru CRI2010-025-000820, 8 October 2013.

evidential breath test was a reading of 739 micrograms of alcohol per litre of breath, compared with the legal limit of 400 micrograms of alcohol per litre of breath.

[6] Mr Coles has previously appeared before the Court on driving related charges of a similar type to those on which he was sentenced by Judge Keller. Between March 1999 and July 2012, he was convicted on five occasions of driving with an excess breath alcohol concentration with his intake of…

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 Coles v Police

Details

AGLC: Coles v Police [2013] NZHC 3188
Case: [2013] NZHC 3188
Decision Date: 2 December 2013

CaseChat Overview and Summary

Michael Desmond Coles appeals against the one year and three months imprisonment sentence imposed on him by the District Court at Timaru, on charges of driving with an excess breath alcohol concentration, driving while disqualified, failing to stop and dangerous driving. The Court heard the appeal on 2 December 2013, with J B Lovely representing Mr Coles and N M Willcocks representing the Police. The appeal was dismissed on the same day, by Heath J.

The legal issues before the Court were whether the District Court Judge had the authority to impose cumulative sentences on Mr Coles, and if so, whether the sentence imposed was proportionate to the gravity of the offending. Mr Coles argued that the Judge erred in imposing cumulative sentences, submitting that the sentence should not be as lengthy as it was. The Police argued that the cumulative sentencing was appropriate in this case, given the nature of the dangerous driving on this occasion.

Heath J found that the District Court Judge had the authority to impose cumulative sentences in this case, as confirmed by the Court of Appeal in Hughes v R. The Court noted that accumulative sentences reflect the failure of previous short terms of imprisonment for drink driving offences to bring home to the offender their responsibilities and the need to deter further offending in the interests of public safety. While sentencing is not an exact science, the Court found that the sentence imposed by the District Court Judge was proportionate to the gravity of the offending, and did not infringe the totality principle.

The Court dismissed the appeal, with no further orders.

Orders