Corbett v Police - [2016] NZHC 2012

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2016-425-21 [2016] NZHC 2012

BETWEEN
JIMMY KARL CORBETT

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 22 August 2016

Appearances:

H Cuthill for the Appellant
R W Donnelly for the Respondent

Judgment:

29 August 2016

JUDGMENT OF NICHOLAS DAVIDSON J

Introduction

[1] On 21 February 2016, the appellant was driving on State Highway 95 when he was stopped by the police. His breath alcohol reading was 666 micrograms of alcohol per litre of breath. He was at that time disqualified from driving.

[2] Mr Corbett appeals against the sentence of 13 months imprisonment imposed in relation to the charge of driving while disqualified, third or subsequent (his fifth), and of driving with excess breath alcohol, third or subsequent (his sixth).

District Court

[3] The Judge referred to the provisions of s 8(a), (e) and (g) of the

Sentencing Act 2002, emphasising the need to impose the least restrictive sentence

CORBETT v NZ POLICE [2016] NZHC 2012 [29 August 2016]

outcome, and in particular the need to take into account the desirability of keeping offenders in the community.1

[4] The Judge rejected the submission that the starting point should be between

12 and 18 months imprisonment, based on the authorities put to him and reached the conclusion that the purposes of sentencing were to hold Mr Corbett accountable, to denounce his conduct and to deter others from repeat drink driving.2

[5] He was influenced by the fact that the appellant’s offending is a “complete disregard of the transport legislation”.3 The seriousness of the offending was increased by the fact that on this occasion Mr Corbett was the designated “sober driver”.

[6] The Judge adopted a starting point of 18 months imprisonment. His Honour discounted 25 per cent for the early guilty pleas, which by his calculation came to
15 months imprisonment.

[7] Having refused home detention given the history of repeated offending and a previous home detention sentence, his Honour deducted two months for the “substantial period” the appellant had been subject to restrictive bail conditions. This resulted in an end sentence of 13 months.

Jurisdiction

[8] Mr Corbett is able to appeal the sentence imposed as of right.4 This Court will only disturb the sentence appealed from if the appellant can establish that there was an error in the sentence imposed, and that a different sentence should be imposed.5 The Court of Appeal has confirmed that the sentence appeal regime in the Criminal Procedure Act 2011 (the CPA) was not intended to signify departure from

1      Police v Corbett [2016] NZDC 11836 at [5].
2 At [8].
3 At [9].
4      Criminal Procedure Act 2011, s 244.
5      Section 250.

the position under the predecessor regimes in the Crimes Act 1961, s 385(3) and the

Summary Proceedings Act 1957, s 121(3).6

Submissions for the appellant

[9] The end sentence imposed was 13 months imprisonment. Ms Cuthill submits this was manifestly excessive.

[10] First, it is submitted that the starting point of 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 Corbett v Police

Details

AGLC: Corbett v Police [2016] NZHC 2012
Case: [2016] NZHC 2012
Decision Date: 29 August 2016

CaseChat Overview and Summary

In Corbett v Police, Jimmy Karl Corbett appeals against his sentence for driving while disqualified and driving with excess breath alcohol. The District Court sentenced him to 13 months imprisonment, which he argues is manifestly excessive. The appeal was heard in the High Court of New Zealand, Invercargill Registry.

The primary legal issues in the appeal were whether the starting point of 18 months imprisonment was appropriate and whether the sentence was excessively harsh given the appellant’s early guilty pleas and time spent on bail. Additionally, the appellant argued that due to his personal circumstances, including the impending birth of a child, the sentence should have been commuted to home detention.

The court found that the District Court judge had correctly applied the sentencing framework set out in previous cases, and the starting point of 18 months was appropriate. However, there was a calculation error in applying the discounts for guilty pleas and time spent on bail. The court found that the correct end sentence should have been 12 months imprisonment, not 13 months. The court also upheld the District Court’s decision to not impose home detention, given the appellant's persistent disregard for the law.

The High Court allowed the appeal and substituted the sentence of 13 months imprisonment with a sentence of 12 months imprisonment. This decision ensures the sentence aligns with the District Court judge’s intention, while also correcting the calculation error.

Orders