[1] Mr Dick pleaded guilty in the District Court to charges of driving with excess breath alcohol and driving whilst disqualified. He also pleaded guilty to breaching a sentence of community work, breaching a sentence of supervision and failing to answer his bail.

[2] On 1 November 2013, Judge E M Thomas sentenced Mr Dick to two years five months imprisonment.1 He also disqualified Mr Dick from holding or obtaining a driver’s licence for a period of four years. Mr Dick appeals against both the sentence that the Judge imposed and the length of the order for disqualification. He argues that both were manifestly excessive.

The facts

[3] The driving charges arose out of an incident when Mr Dick was stopped whilst driving his motor vehicle on 10 February 2013. Breath testing procedures revealed that he had 662 micrograms of alcohol per litre of breath. He was also subject to an order disqualifying him from holding or obtaining a driver’s licence for a period of 12 months from 20 July 2012.

[4] The charge of breaching the sentence of community work was laid after Mr Dick failed to report as directed on no fewer than nine separate occasions after having been sentenced to 40 hours community work on 4 February 2013. The charge of breaching supervision arose after Mr Dick failed to report as directed by his probation officer on 26 March 2013. The charge of failing to answer bail arose after Mr Dick failed to appear in Court in relation to the present driving charges on
21 March 2013. Mr Dick was not arrested until 23 August 2013.

The Judge’s decision

[5] The Judge considered that Mr Dick’s previous convictions significantly aggravated the seriousness of the present offending. He noted that this is Mr Dick’s eighth conviction for driving with excess breath or blood alcohol. The most recent previous conviction was in 2012 when Mr Dick received a community-based
sentence that he subsequently breached, leading to two of the present charges. The

1 Police v Dick DC Hamilton CRI-2013-019-001613, 1 November 2013.

Judge therefore selected a starting point of two years imprisonment on the charge of driving with excess breath alcohol, being the maximum available. The Judge then noted that this was Mr Dick’s seventh conviction for driving whilst disqualified, the last also having been in 2012. Had Mr Dick been appearing for sentence on that charge on its own, the Judge indicated he would have selected a starting point close to the maximum of two years imprisonment. Applying totality principles, however, the Judge applied an uplift of 12 months imprisonment to reflect the charge of driving whilst disqualified.…

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 Dick v Police

Details

AGLC: Dick v Police [2014] NZHC 434
Case: [2014] NZHC 434
Decision Date: 11 March 2014

CaseChat Overview and Summary

Lionel Wiremu Dick appeals against the sentence imposed by Judge E M Thomas in the District Court, arguing that both the sentence and the length of the order disqualifying him from driving were manifestly excessive. Mr Dick pleaded guilty to driving with excess breath alcohol and driving whilst disqualified, as well as breaching a sentence of community work, breaching a sentence of supervision and failing to answer his bail. The Judge sentenced Mr Dick to two years five months imprisonment, and disqualified him from holding or obtaining a driver’s licence for a period of four years. Mr Dick argues that the starting point of two years imprisonment on the charge of driving with excess breath alcohol was excessive, and that an uplift of 12 months in respect of the charge of driving whilst disqualified was also excessive. He further argues that an order disqualifying him from driving for a period of four years was manifestly excessive.

The court considered that Mr Dick’s previous convictions significantly aggravated the seriousness of the present offending. The court noted that this is Mr Dick’s eighth conviction for driving with excess breath or blood alcohol, and his seventh conviction for driving whilst disqualified. The court selected a starting point of two years imprisonment on the charge of driving with excess breath alcohol, being the maximum available. The court applied an uplift of 12 months imprisonment to reflect the charge of driving whilst disqualified. The court imposed a sentence of two years imprisonment on the charge of driving with excess breath alcohol, and a cumulative sentence of five months imprisonment on the charge of driving whilst disqualified. The court sentenced Mr Dick to concurrent terms of one month imprisonment on each of the remaining charges.

The court found that the Judge was wrong to categorise Mr Dick as falling within the worst category of recidivist offenders. The court found that an appropriate starting point on the charge of driving with excess breath alcohol was one of approximately 18 months imprisonment, and that an uplift of six months to reflect the charge of driving whilst disqualified would be appropriate. The court found that the end sentences that the Judge imposed were manifestly excessive, and should be reduced. The court quashed the sentences of imprisonment that the Judge imposed, and imposed a sentence of 18 months imprisonment on the charge of driving with excess breath alcohol, and a concurrent sentence of six months imprisonment on the charge of driving whilst disqualified. The court imposed a cumulative sentence of two months imprisonment on the charge of breaching the sentence of community work, and a further cumulative sentence of one month’s imprisonment on the charge of breaching bail. The court imposed a concurrent sentence of one month’s imprisonment on the charge of breaching supervision. The court granted leave to counsel for Mr Dick to file additional submissions within 21 days dealing with the orders disqualifying Mr Dick from driving for a period of four years.

Orders