Cowie v Police - [2016] NZHC 2608

IN THE HIG H COURT O F NEW ZEALAND AUCKLAND REG ISTRY

CRI-2016-404-000289 [2016] NZHC 2608

BETWEEN
LUKE COWIE

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 31 October 2016

Appearances:

A Ives for Appellant
H Clark for Respondent

Judgment:

1 November 2016

JUDGMENT O F FOGARTY J

This judgment was delivered by Justice Fogarty
On 1 November 2016 at 3.30pm

Pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar

Date:…………………………

Solicitors/counsel: A Ives, Auckland
Crown Solicitor, Auckland

COWIE v NEW ZEALAND POLICE [2016] NZHC 2608 [1 November 2016]

[1] This is an appeal agai nst a sentence of three months’ i mprisonment i mposed on the appellant in the Auckland District Court on 13 September 2016 (Judge P I Treston). The sentence was after Mr Cowie had entered a guilty plea to a charge of refusi ng to provide a blood specimen.

[2] At 9.45pm on Thursday 12 May 2016, the appellant was driving a motor vehicle on Great North Road, Point Chevalier. He lost control of his car and collided with a tree. He refused an evidential breath test procedure. He exhibited signs of recent alcohol intake. He admitted to dri nking five beers before driving.

[3] Judge Treston recorded:

[4]You have a six-page printout of previous convictions between 1999 and 2014 including driving with excess breath alcoho l on five occasions:

(a)2001, a level of 558 when you were given periodic detention.

(b) 2008, a level of 464, community work. (c) 2009, a level of 689, community work.
(d)Two in 2010 at the same time but arising out of separate incidents on separate dates, 727 and 775, when you were given home detention and community work.

[4] Mr Cowie also has numerous convictions on other matters for dr ugs, burglary, possession of weapons, etc. He is now 35 years of age. He has a partner, with their newborn baby, and is a valued employee of a construction company. There is a very real prospect that he is putti ng his past crimi nal activities behind hi m.

[5] He advises that after this crash he resolved to give up alcohol and he is now participating i n the ei ght week Getting Star ted group co urse. He has an i mpressive testi monial from his employer who says:

I am aware of the charges Luke is facing, hence why I am providing this character reference to acknowledge that Luke is a true asset not only to my team, but this company and the very high demanding industry. I also wish to highlight the progress he has made over recent months to advance himself. I have recently given Luke to take on more responsibilities to up-skill himself as I have seen he has great potential, he assists with the train ing of younger apprentices on a regular basis which shows me he has got great leadership skills, and is therefore respected by his peers … the industry needs skilled workers and Luke is exactly that. Over…

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: [2016] NZHC 2608
Decision Date: 1 November 2016

CaseChat Overview and Summary

In Cowie v Police, Luke Cowie appealed against a sentence of three months' imprisonment imposed by the Auckland District Court after he pleaded guilty to refusing to provide a blood specimen following a car accident. The appellant had a history of alcohol-related driving offenses and other criminal activities. Despite his efforts to reform, including a commitment to abstain from alcohol and positive feedback from his employer, the sentencing judge opted for imprisonment, citing the appellant's poor compliance with community-based sentences in the past. The appeal focused on whether the sentencing judge appropriately considered the hierarchy of sentencing options, the obligation to impose the least restrictive outcome, and relevant offender circumstances under the Sentencing Act 2002.

The court examined whether the sentencing judge erred in focusing on deterrence and denunciation rather than considering community-based sentences or a rehabilitative approach. The appellant's counsel argued that the judge failed to adequately weigh mitigating factors and the offender's background in determining the sentence. In response, the Crown emphasized that the judge had indeed considered relevant factors and that it was inappropriate to revisit the specific weighting of these factors on appeal. The High Court found that the sentencing judge was aware of the criteria in the Sentencing Act and that the imposed sentence was intended to be therapeutic, aimed at addressing the appellant's alcohol problem and encouraging him to reform. The court concluded that the judge's decision was within the permissible range, and no error was identified.

The appeal was dismissed, and the original sentence of three months' imprisonment was upheld.

Orders