IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI-2013-419-000065 [2014] NZHC 434
BETWEEN LIONEL WIREMU DICK Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 11 March 2014
Appearances: G Walsh for Appellant
T C Tran for Respondent
Judgment: 11 March 2014
(ORAL) JUDGMENT OF LANG J [on appeal against sentence]
DICK v NEW ZEALAND POLICE [2014] NZHC 434 [11 March 2014]
[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.…
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CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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