Creegan v Police - [2015] NZHC 1513

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2015-425-8 [2015] NZHC 1513

BETWEEN
UNA FRANCES CREEGAN

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 29 June 2015

Appearances:

L S Collins for the Appellant
S McKenzie for the Respondent

Judgment:

2 July 2015

JUDGMENT OF NATION J

Background

[1] The appellant, Ms Creegan, was born in Ireland. She has lived in New Zealand since November 2012. In February 2015, she was living in Queenstown and working as a personal trainer and manager of a Queenstown gymnasium. Around
1.00 am on 26 February 2015, after consuming a significant amount of alcohol, she drove her car from a car parking building situated on Shotover Street in central Queenstown, drove through the CBD and approximately 2 km along a road out of town. After negotiating the commercial areas, she failed to negotiate a left hand bend, crossed the centre line and drove headfirst into a bank on the right hand side of the road. With the impact, the vehicle bounced back onto the road facing the direction it had come.

[2] When the Police arrived, the appellant approached them stating she had been the driver. It was clear to the Police that she was intoxicated. She smelt heavily of alcohol and had vomited down her front. She had to be taken to the Queenstown
Lakes District Hospital for observation. She had received facial burns from an

CREEGAN v POLICE [2015] NZHC 1513 [2 July 2015]

airbag. While in hospital a blood sample was taken. The reading was 159 milligrams of alcohol per 100 millilitres of blood.

[3] On charges of excess blood alcohol (“EBA”) and careless driving, the

appellant was sentenced to:

(a) 140 hours’ community work;

(b)supervision for a period of nine months with a condition that she attend and complete an alcohol and drug assessment and all counselling and treatment as directed, including residential treatment in relation to her alcohol issues if directed; and

(c) disqualification for a period of 12 months.

Ms Creegan appeals against this combination of sentences as manifestly excessive but, through her counsel, takes no issue with the 12 month period of disqualification.

Jurisdiction

[4] On an appeal against sentence, it is not for this Court to consider matters afresh or to substitute its own opinion for that of the sentencing Judge. The Court will intervene only if the sentence imposed is manifestly excessive and will review the sentence only if it can be shown that there was a clear error in the process of reasoning followed by the sentencing Judge.1

Submissions and Discussion

[5] In submissions for Ms Creegan, Mr Collins suggested that s 13 Sentencing Act 2002 applies and, accordingly, a fine should have been imposed rather than community work and/or supervision, a fine being the least restrictive outcome. He submitted that Ms Creegan’s ability to pay a fine should not have been determined
solely on the basis of whether or not she could have paid immediately the sort of fine

1 Tutakangahau v R

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 Creegan v Police

Details

AGLC: Creegan v Police [2015] NZHC 1513
Case: [2015] NZHC 1513
Decision Date: 2 July 2015

CaseChat Overview and Summary

The appellant, Ms Creegan, appealed against her sentence for excess blood alcohol and careless driving. Ms Creegan was born in Ireland and had lived in New Zealand since November 2012. She had worked as a personal trainer and manager of a Queenstown gymnasium. On 26 February 2015, Ms Creegan drove her car while heavily intoxicated, crashing into a bank on the side of the road. She was found to have 159 milligrams of alcohol per 100 millilitres of blood. The appellant was sentenced to 140 hours' community work, nine months' supervision, and a 12-month driving disqualification. Ms Creegan appealed the sentence, arguing that it was manifestly excessive. The court considered the submissions from both parties, focusing on the appropriate sentencing for the offence and whether the sentence imposed was excessive.

The court found that the sentence of community work was appropriate for the offence, as it was a serious instance of careless driving and the appellant was a first offender. The court also found that the sentence of supervision was not necessary and was imposed as part of the penalty rather than for rehabilitation purposes. The court quashed the sentence of supervision and allowed the appeal. The sentence of 12 months' disqualification and 140 hours' community work on the excess blood alcohol charge stood, while the appellant remained convicted and discharged on the careless driving charge.

Orders