Daley v Police - [2012] NZHC 1251

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2012-419-000020 [2012] NZHC 1251

BETWEEN THOMAS WILLIAM DALEY Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 30 May 2012

Appearances: N P Chisnall for Appellant
P V Cornege for Respondent

Judgment: 6 June 2012

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 6 June 2012 at 3:00 pm
pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date………………………….

Solicitors: Almao Douch, P O Box 19173, Hamilton
Fax: (07) 839-3030 – P V Cornege

Counsel: Public Defence Service, DX GX 10005, Hamilton 3240
Fax: (07) 834-4051 – N Chisnall

DALEY V NZ POLICE HC HAM CRI-2012-419-000020 [6 June 2012]

Introduction

[1] Thomas William Daley appeals against a sentence of six months imprisonment imposed by Judge Tompkins on a charge of driving with excess breath alcohol.[1] The grounds of the appeal are that the term of imprisonment was manifestly excessive and, secondly, that the Judge erred in failing to properly consider home detention as the least restrictive sentence that could be imposed in the circumstances.

[1] Police v Daley DC Hamilton CRI-2011-0119-009646, 30 April 2012.

[2] The Judge also made an order under s 65(4) disqualifying Mr Daley from holding or obtaining a driver licence. However, the Judge framed the disqualification as a “permanent disqualification…together with a finite disqualification of 18 months from today”. This was an order that the Judge could not make; under s 65(4) an order for disqualification can only prevent a person “from holding or obtaining a driver licence until the [Land Transport Authority] removes that disqualification under s 100”. I can deal with this issue immediately by quashing the order for finite disqualification and substituting an order under s 65(4) disqualifying Mr Daley from holding or obtaining a driver licence until the Land Transport Authority removes that disqualification under s 100 of the Land Transport Act 1998.

Was the term of imprisonment manifestly excessive?

[3] Mr Daley was aged 20 years at the time of the offence in December 2011. It was his third excess breath alcohol offence and his breath alcohol reading was 932 micrograms. In 2009 Mr Daley was convicted on a reading of 650 and fined. In
2010 he was convicted on a reading of 735 and received a community work sentence which he completed without any problem. However, also in 2010 and in close proximity to his second breath alcohol offence Mr Daley committed breaches of community work and intensive supervision sentences imposed in 2009 for shoplifting and burglary. Among the special conditions imposed as part of those
sentences were requirements regarding alcohol counselling.

[4] The pre-sentence report had recommended a short term of imprisonment with release conditions. At sentencing Mr Daley’s counsel (not Mr Chisnall) sought to persuade the Judge that a non-custodial sentence was appropriate. The Judge rejected that, citing the Probation Service assessment of Mr Daley as being at high risk of re-offending and causing harm to others, his previous non-compliance with intensive supervision, community…

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: [2012] NZHC 1251
Decision Date: 6 June 2012

CaseChat Overview and Summary

In Daley v Police, the appellant, Thomas William Daley, appealed against a sentence of six months imprisonment imposed by Judge Tompkins for driving with excess breath alcohol. Daley's grounds for appeal were that the term of imprisonment was manifestly excessive and that the judge erred in failing to properly consider home detention as the least restrictive sentence. The court also noted that the judge had made an order disqualifying Daley from holding or obtaining a driver's licence, but had framed the disqualification as both permanent and finite, which was not permissible under the law.

The key legal issues in the appeal were whether the term of imprisonment was manifestly excessive and whether the judge had erred in not considering home detention as a possible sentence. The court examined the appellant's previous convictions, his breath alcohol reading, and his history of non-compliance with court orders. The court also considered whether the appellant's personal circumstances, including his employment status, education level, and living situation, suggested that he was likely to comply with a sentence of home detention.

The court found that the term of imprisonment was not manifestly excessive, given the appellant's history of excess breath alcohol offences and his high risk of re-offending. The court also found that the judge had not erred in not considering home detention, as the appellant's history of non-compliance with court orders and his cavalier attitude towards alcohol counselling suggested that he was unlikely to comply with a sentence of home detention. The court noted that the judge had legitimately taken into account the important objectives of public safety and deterrence in considering the appropriate sentence.

The appeal was dismissed, and the order for finite disqualification was quashed and substituted with an order under s 65(4) disqualifying Daley from holding or obtaining a driver's licence until the Land Transport Authority removed that disqualification under s 100 of the Land Transport Act 1998.

Orders