Deadman v Police - [2021] NZHC 1406

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CRI-2021-454-14

[2021] NZHC 1406

BETWEEN
JOSEPH DEADMAN

Appellant

AND

THE NEW ZEALAND POLICE

Respondent

Hearing: 20 May 2021

Counsel:

G M Stone for the appellant G Carter for the respondent

Judgment:

15 June 2021

JUDGMENT OF CULL J

[1] On 25 March 2021, Mr Deadman was sentenced to two and a half years’ imprisonment for several charges occurring between 12 March 2020 and 2 January 2021.1 These charges were:

(a)12 March 2020: excess breath alcohol (EBA) (third or subsequent);2

(b)15 July 2020: EBA (third or subsequent); and driving while disqualified (third or subsequent);3

(c)2 December 2020: driving while disqualified (third or subsequent);

1      Police v Deadman [2021] NZDC 5424.
2      Land Transport Act 1998, ss 56(1) and 56(4): maximum penalty two years’ imprisonment or
$6,000 fine.
3      Sections 32(1)(a) and 32(4): maximum penalty two years’ imprisonment or $6,000 fine.

DEADMAN v THE NEW ZEALAND POLICE [2021] NZHC 1406 [15 June 2021]

(d)18 December 2020: wilful damage;4 and

(e)2 January 2021: threatening behaviour;5 and resisting police.6

[2] Mr Deadman appeals his sentence. He submits that the total cumulative starting point of three years’ four months’ (40 months) imprisonment was too high, and his sentence reached was manifestly excessive.

Summary of Facts

12 March 2020

[3] At 2:20 am, Mr Deadman was found to have been driving with a breath alcohol level of 781 micrograms of alcohol per litre of breath. He attempted to walk away from the vehicle before being arrested. He told police he was not driving the vehicle.

15 July 2020

[4] At about 12 am, Mr Deadman was disturbing the occupants of a residential address in Palmerston North. The police were called, he was spoken to, and told to walk home as he was a disqualified driver. He returned to the premises at 12:43 am and was asked to leave again. The appellant then drove away in his vehicle. He subsequently spotted police, stopped his vehicle and ran away. Police located him in Papaioea Park. He was found with an excess breath alcohol concentration of 840 micrograms of alcohol per litre of breath. The appellant also told the police he had not been driving and was running across the park to get home.

2 December 2020

[5] On 23 August 2020, Mr Deadman’s minimum period of “indefinite disqualification” lapsed. He had to apply for a zero alcohol licence, which he did not do. On 2 December 2020, Mr Deadman drove a Ford motor vehicle west in the Foxton

4      Summary Offences Act 1981, s 11(1)(a): maximum penalty two months’ imprisonment or $2,000 fine.
5      Section 21(1)(a): maximum penalty three months’ imprisonment or $2,000 fine.
6      Section 23(a): maximum penalty three months’ imprisonment or $2,000 fine.

Beach Surf Club Carpark. Police stopped him, after receiving complaints from members of the public regarding his manner of driving.

18 December 2020

[6] Mr Deadman and his partner were staying at a Levin…

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.

Continue reading Deadman v Police

Details

AGLC: Deadman v Police [2021] NZHC 1406
Case: [2021] NZHC 1406
Decision Date: 15 June 2021

CaseChat Overview and Summary

The appellant, Joseph Deadman, was sentenced to two and a half years’ imprisonment for multiple charges including excess breath alcohol, driving while disqualified, wilful damage, threatening behaviour and resisting police. The sentence was imposed by the District Court on 25 March 2021. The High Court was required to determine whether the sentence was manifestly excessive and whether the starting point was too high.

The starting point for the excess breath alcohol charges was considered too high at 18 months imprisonment each. While the charges did warrant a starting point in the range of 12-18 months, the court considered that a 20-month starting point was appropriate for the multiple offences with seriously aggravating factors. The additional four-month uplift for criminal history amounted to double-counting. However, the six-month sentence for the standalone driving while disqualified charge was appropriate. Sentences for the remaining charges should be imposed cumulatively. The final starting point should be 29 months’ imprisonment, reduced to 22 months after discounts. While this converts the sentence to a short-term sentence of imprisonment, home detention was not appropriate as the appellant’s partner refused to provide an address.

The appeal was allowed and the sentence of two and a half years’ imprisonment was quashed. A sentence of 22 months’ imprisonment was substituted. The alcohol interlock sentence and disqualification from driving remained.

Orders