De Garnham-Riley v Police - [2017] NZHC 819

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2017-425-000006 [2017] NZHC 819

BETWEEN
BRANDON WARREN DE GARNHAM-

RILEY Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 28 March 2017

Appearances:

K Barker for Appellant
M Mika for Respondent

Judgment:

28 April 2017

JUDGMENT OF NICHOLAS DAVIDSON J

Introduction

[1] The appellant pleaded guilty to his fourth charge of driving while under the influence of alcohol, careless driving, and breaching his zero-alcohol licence.

[2] On 12 January 2017, he was sentenced to six months community detention, nine months supervision and 40 hours community work.1 He was also disqualified from driving for 18 months, after which he must only apply for a zero-alcohol licence.2

[3] The appellant appeals against the Judge’s refusal to authorise him to apply for an alcohol interlock licence.3 This involved the exercise of judicial discretion.

1      Police v de Garnham-Riley [2017] NZDC 336.
2      Pursuant to s 65B Land Transport Act 1998.
3      Pursuant to s 65A Land Transport Act 1998.

DE GARNHAM-RILEY v NEW ZEALAND POLICE [2017] NZHC 819 [28 April 2017]

Background to offending

[4] The offending occurred on 6 November 2016. At the time he was subject to a zero-alcohol licence. The appellant had returned home after drinking with friends. His partner was at an event elsewhere and the appellant drove to pick her up. On the way he had a serious motor accident and was badly injured.

District Court

[5] The Judge recognised that most of the appellant’s many previous convictions are related to his use of alcohol. She told him that if he offended again in this way, he would likely be sentenced to a lengthy term of imprisonment.

[6] It was to the appellant’s credit that, having lost his licence indefinitely, he had worked very hard to get his licence back, and that is not easy, for reasons which are developed in this judgment. While he had managed that, he had then, in the Judge’s words, “spoilt it all”.

[7] At first blush the Judge’s refusal to authorise an application for an interlock licence was well founded. The appellant’s previous offences included excess breath alcohol of 959 micrograms, 869 micrograms, and 984 micrograms. On this occasion, his level was 109 milligrams but, apart from his multiple previous offending, it was severely aggravating that he was driving when subject to a zero alcohol licence.

[8] The Judge noted that the appellant had been involved in incidents other than driving offences, but counsel submitted that they were associated with drinking, and that caused the Judge to query his brain maturity. The Judge was highly reluctant to impose an electronically monitored sentence, particularly when the appellant did not agree with the summary of facts, and said he was not over the limit.

[9] Home detention was an appropriate sentence, but as it would impact on his employment, the Judge stopped short of that. The maximum community detention sentence was imposed, beyond that recommended by Community Probation. Supervision and community work were also imposed. This was…

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: [2017] NZHC 819
Decision Date: 28 April 2017

CaseChat Overview and Summary

In De Garnham-Riley v Police, the appellant was sentenced to six months community detention, nine months supervision and 40 hours community work. He was also disqualified from driving for 18 months, after which he must only apply for a zero-alcohol licence. The appellant appealed against the Judge’s refusal to authorise him to apply for an alcohol interlock licence. The appeal was dismissed.

The legal issue was whether the Judge exercised her discretion correctly when she refused to authorise the appellant to apply for an alcohol interlock licence. The Crown submitted that the Judge was entitled to exercise her discretion not to make orders under s 65A, as the appellant had not taken positive steps towards rehabilitation, and did not need a licence to travel to work. The appellant's counsel submitted that the principles of deterrence and denunciation can be adequately addressed through a sentence of community detention and supervision, and an appropriate order under s 65A authorising an application for an interlock licence.

The Court held that the Judge was right to refuse to authorise the appellant to apply for an alcohol interlock licence. The Court considered that the deterrence and denunciation elements of sentencing were met by the overall sentence imposed. The Court held that the appellant’s attitude negated the appeal being allowed, but the exercise of discretion should in all cases recognise the apparently positive effects of the interlock device for an offender, and to the community.

Orders