Dawson v Police - [2014] NZHC 2991

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2014-409-000109 [2014] NZHC 2991

MAXWELL DAWSON

v

POLICE

Hearing: 27 November 2014

Counsel:

J Lucas for Appellant
K B Bell for Crown

Judgment:

28 November 2014

JUDGMENT OF WHATA J

[1] Mr Dawson was sentenced to 12 months imprisonment on one count of driving with excess alcohol (third and subsequent). It was his eighth conviction for such offending. He now appeals to this Court seeking home detention. He submits that the Judge:

(a) erroneously found that Mr Dawson lied about the reason for driving with excess breath alcohol; and

(b) did not have proper regard to Mr Dawson’s personal circumstances.

DAWSON v POLICE [2014] NZHC 2991 [28 November 2014]

Background

[2] Judge MacAskill’s sentencing notes are succinct and helpfully set the context

for the appeal. He stated:1

[2] On 25 May 2014 you were the driver of a Mazda motor vehicle on Logistics Drive, Christchurch. You were stopped by the police at a compulsory breath test checkpoint. The evidential breath test gave a result of 995 micrograms of alcohol per litre of breath which is well in excess of twice the legal limit. You admitted consuming two stubbies of beer prior to driving. That was clearly a lie. You now say that you were driving in response to a call from your wife who had left her heart pills at home and that you exercised a serious misjudgement in driving. That explanation was not offered to the police at the time and I do not accept it as true.

[3] You pleaded guilty reasonably promptly.

[4] It is important that I review your offending record. You have an extensive offending record. It includes a great deal of offending other than drink-driving, but I am going to focus on the drink-driving. You first appeared for driving with excess breath alcohol in 1982 when you were sentenced to imprisonment with other offending. Then you appeared on two drink-driving charges in 1983 and were sentenced to imprisonment for three months and, on the same date, on another charge with the level also appallingly high of 1000, you were sentenced to imprisonment for three months. In 1991 you appeared with a high level again, of 912, and you were sentenced to imprisonment for 10 months with other offending, In 1993 you appeared with a level of 1024 and were sentenced to imprisonment; that was a sentence imposed in isolation from other offending. Then, most recently, in 2005, you appeared with a relatively modest level of 497, when you were fined. Now you are back to your old ways, with driving with a very high level, putting not only yourself but, more importantly, other road users at high risk.

[5] I take into account your counsel’s submissions and his emphasis on the fact that it is some years since you last appeared and then some years prior to that. I do take that into account but, given your record and sentences imposed on your earlier…

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: [2014] NZHC 2991
Decision Date: 28 November 2014

CaseChat Overview and Summary

In the High Court of New Zealand, Maxwell Dawson appealed his 12-month imprisonment sentence for driving with excess alcohol, arguing that the sentencing judge erred in finding that he lied about his reasons for driving under the influence, and did not properly consider his personal circumstances. The Crown submitted that the judge had sufficient evidence to make the findings he did and that the reasons for driving were not relevant to sentencing. The court considered whether the judge erred in not requiring a disputed fact hearing and whether the new evidence should be taken into account. The court found that while the judge had some evidence to make his findings, he did not appreciate the need to afford the defendant an opportunity to present supporting evidence. However, the court concluded that this did not lead to a miscarriage of justice as the evidence did not support a mitigating factor. The court also found that the judge did not properly consider the significant impact a term of imprisonment would have on the defendant and his family, including a boy with special needs. The appeal was allowed, and the sentence was amended to six months of home detention with a special condition to attend and complete an appropriate driver offender programme.

Orders