Daniels v Police - [2012] NZHC 3364

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2012-404-370 [2012] NZHC 3364

BETWEEN PAUL JAMES DANIELS Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 12 December 2012

Counsel: C Wilkinson-Smith for Appellant
J Pridgeon for Respondent

Judgment: 12 December 2012

(ORAL) JUDGMENT OF HEATH J

Solicitors:
Crown Solicitor, PO Box 2213, Auckland
Counsel:
C Wilkinson-Smith, PO Box 1544, Shortland Street, Auckland

DANIELS V NEW ZEALAND POLICE HC AK CRI 2012-404-370 [12 December 2012]

Introduction

[1] Mr Daniels appeals against a sentence of 18 months imprisonment imposed by Judge Tremewan in the District Court at Waitakere on 12 October 2012.1

[2] Mr Daniels was charged with driving with an excess breath alcohol concentration on a third or subsequent occasion.

[3] He had previously been convicted of such an offence on 14 occasions.

Facts

[4] On Saturday 23 April 2011, at about 10.25pm, Mr Daniels was driving a motor vehicle on Hillary Heights Avenue, Glendene. When stopped he exhibited signs of recent alcohol consumption. Following breath test procedures being undertaken, he was found to have a breath alcohol reading of 859 mgs of alcohol per litre of breath. The legal limit is 400 mgs of alcohol per litre of breath.

[5] Mr Daniels stated that he had been arguing with his wife and was driving to his brother’s house. While he was located in a cul-de-sac, it appears that he had driven about four kilometres from his home in Rathgar Road, Henderson to get to the Glendene address.

[6] As indicated, Mr Daniels has been convicted and sentenced on alcohol related driving offences on 14 previous occasions. They spanned a period from 1983 until 2005. Seven of those involve alcohol levels in excess of twice the legal limit, with two coming close to being three times over the limit. On the last occasion that he came before the Court, he received the maximum available sentence of two years
imprisonment.

1 Police v Daniels DC Waitakere CRI 2011-090-003058, 12 October 2012.

Personal circumstances

[7] At the time of the incident, Mr Daniels was 49 years old. In discussing relevant issues with the probation officer who prepared a report for the District Court, he acknowledged that, prior to his remand on bail on the charge on which he was sentenced, he would drink six cans of beer every night. He accepted that alcohol abuse had been a “life-long problem”.

[8] Mr Daniels had made some attempts to address his alcohol problems. They surfaced relatively late in the piece. Following his being charged on 26 April 2011, and entering a not guilty plea on 5 May 2011, it was not until 14 June 2012 that the plea was changed to guilty. The Probation report indicated that Mr Daniels had “recently engaged with community alcohol and drug services” and “was to have commenced an eight week getting started group on 18 September 2012”.

[9] It appears that efforts to embark upon such programmes did not emerge until well after the defended hearing date had…

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.

Keep reading for free

Create a free CaseChat account to read Daniels v Police and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2012] NZHC 3364
Decision Date: 12 December 2012

CaseChat Overview and Summary

Mr Daniels appeals against a sentence of 18 months imprisonment imposed by Judge Tremewan in the District Court at Waitakere on 12 October 2012. The appeal is against the sentence imposed for driving with an excess breath alcohol concentration on a third or subsequent occasion, a charge to which he pleaded guilty. Mr Daniels has a history of alcohol-related driving offences, having been convicted on 14 previous occasions, seven of which involve alcohol levels in excess of twice the legal limit. The District Court Judge observed that it was not until June 2012 that Mr Daniels took responsibility for the offending, and if he had pleaded guilty earlier it might have demonstrated to the Court some change in attitude, particularly if a residential alcohol-related treatment programme had been undertaken. The Judge concluded that anything other than a term of imprisonment was simply not available for a combination of reasons.

The appeal raises three points. The first challenges the methodology adopted by the Judge in sentencing Mr Daniels. The second point concerns the level of credit given for the guilty plea. The third point involves the Judge’s decision not to consider home detention. Mr Wilkinson-Smith, for Mr Daniels, raised three points on appeal. The first challenged the methodology adopted by the Judge in sentencing Mr Daniels; the second, the level of credit given for the guilty plea; the third involved the Judge’s decision not to consider home detention. The appeal was dismissed.

In dismissing the appeal, the Court found that the approach mandated by R v Taueki was not followed to the letter. The District Court Judge did identify a starting point for sentence and then made a global allowance for mitigating factors. Having inferentially decided that the starting point should be the maximum available sentence of two years imprisonment, Judge Tremewan identified those factors for which she intended to give credit. The District Court Judge was not swayed in refusing home detention purely by the technical difficulties. Rather, she formed the positive view that imprisonment was necessary to respond to the particular offending. In those circumstances, the challenge to the decision of the Judge to imprison Mr Daniels cannot succeed.

Orders