Cunningham v Police HC Invercargill CRI-2011-425-000054

[2011] NZHC 2013

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2011-425-000054

BETWEEN  JASON JAMES CUNNINGHAM Appellant

ANDPOLICE Respondent

Hearing:         13 December 2011

Appearances: S G Vidal for Appellant

M J Thomas for Respondent

Judgment:      16 December 2011

JUDGMENT OF WHATA J

This judgment was delivered by Justice Whata on

16 December 2011 at 2.30 p.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors:

Southern Law, PO Box 1195, Invercargill 9840

Preston Russell Law, Crown Solicitors, PO Box 355, Invercargill 9840

CUNNINGHAM V POLICE HC INV CRI-2011-425-000054 16 December 2011

[1]      Jason  Cunningham  pleaded  guilty to  charges  of  driving  while  under  the influence, driving while disqualified, reckless driving, sustained loss of traction and failing to stop for red and blue flashing lights.  He was sentenced to a total of six months’ imprisonment following his guilty pleas.

[2]      He appeals sentence on the basis that the Court made various errors and that the sentence is manifestly excessive.

[3]      Having considered matters, the Crown has formed the view that, without any criticism of a busy sentencing Judge, that a sentence of one month’s imprisonment could not be imposed in relation to the charge of failing to stop for red and blue lights.  Furthermore, the Crown accepts that the judgment does not overtly refer to a discount for remorse and guilty pleas.

[4]      On that basis the Crown is amenable to the outcome put forward by Jason’s

counsel, namely the following end sentence:

(a)       Driving under the influence of alcohol – two months’ imprisonment. (b)       Driving whilst disqualified – one month’s imprisonment, cumulative. (c)       Reckless driving – one month’s imprisonment, concurrent.

(d)      Sustained loss of traction – one month, concurrent. (e)           Failing to stop – convicted and discharged.

[5]      I agree.  My reasons are as follows:

(a)       The one month’s sentence on the failing to stop was ultra varies.

(b)The  disqualification  that  Jason  was  subject  to  had  been  wrongly imposed, the appellant having been incorrectly convicted of a charge of driving with excess breath alcohol for a third or subsequent occasion. A review of the appellant’s conviction history shows that he

did not have the qualifying offences (two previous adult level EBA’s) for that charge to be laid.  While the Judge was obliged to take into account the previous disqualification, he was in my respectful view able to ameliorate the effect of that incorrect conviction through sentencing.  While that may be tantamount to collateral challenge, I consider that it is mandated by the Sentencing Act 2002 which implores  the  least  restrictive  outcome  appropriate  to  the circumstances.

(c)      If the offending is considered on a totality basis, a sentence of three to four months’ imprisonment, with an uplift of one month’s imprisonment for prior traffic offending should be imposed.   A discount of one to two months’ imprisonment should then be allowed for the immediate guilty pleas, relative youth of the appellant and in recognition  of the fact  that  the appellant  has  not previously been imprisoned.

[6] Given the foregoing, and the consensus reached, I amend the sentence of imprisonment to bring it into line with the sentence outlined at [4] above. The sentence of disqualification is unaffected by this.

[7]      I should note for completeness, that but for the matters I have identified, it could not be said that the sentence was manifestly excessive.   The Judge in my respectful view was entirely justified in taking a firm line in relation to this type of offending.    I  depart  from  the  Judge’s  sentence  because  of  the  rather  unusual

circumstances of this case.

Whata J