Doughty v Police - [2015] NZHC 430

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-000390 [2015] NZHC 430

BETWEEN
PATRICIA MARTINA DOUGHTY

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 10 March 2015

Appearances:

J A G Moroney for Appellant
S L McKone for Respondent

Judgment:

11 March 2015

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 11 March 2015 at 12.00 noon
pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date………………………..

DOUGHTY v NZ POLICE [2015] NZHC 430 [11 March 2015]

Introduction

[1] On the morning of 28 October 2014 Patricia Doughty made a right hand turn out onto Glenfield Rd and collided with a Holden motor vehicle. She failed to stop. The driver of the Holden followed her. She was seen to drive through a red light and eventually turn into the carpark of a McDonalds Restaurant where she collided with the Holden a second time while trying to park her vehicle. Ms Doughty got out of her car and behaved aggressively, causing a concerned member of the public to take her keys and call the Police. She was found to have 1417 micrograms of alcohol per litre of breath.

[2] Ms Doughty entered an early guilty plea. She acknowledged that she had a serious alcohol problem. She had one previous conviction for driving with excess breath alcohol entered in 2004. Judge Simpson imposed a sentence of 12 months’ supervision with a condition requiring Ms Doughty to undertake assessment and treatment for alcohol abuse and, in addition, 300 hours of community work and
18 months’ disqualification.

[3] Ms Doughty appeals the community work and disqualification components of the sentence on the grounds that they were manifestly excessive as a result of the Judge failing to give adequate weight to her personal circumstances, failing to have regard to comparable cases and failing to have regard to s 13 of the Sentencing Act.

Sentencing in the District Court

[4] The sentencing took place in a busy List Court and the Judge sentenced without the benefit of a pre-sentence report. Counsel appearing at sentencing (who was not the counsel appearing on the appeal) did address the Judge regarding Ms Doughty’s personal circumstances, advising that Ms Doughty had been a long- term member of Alcoholics Anonymous, had suffered a relapse and had enrolled in CADS. Counsel also pointed out that Ms Doughty had one previous conviction from some ten years earlier, held a responsible job and had offered full reparation. However, the transcript shows that these submissions were very brief and no additional information was provided or sought.

[5] The Judge’s sentencing notes reflect the summary nature of the hearing and the limited information available to the Judge:

Ms Doughty, it was a very high breath alcohol count suggesting a major problem in your life but I give you credit for the fact that you have done something about it and you are continuing to do something about it and it is really going to require a life time…

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 Doughty v Police

Details

AGLC: Doughty v Police [2015] NZHC 430
Case: [2015] NZHC 430
Decision Date: 11 March 2015

CaseChat Overview and Summary

In the case of Doughty v Police, Patricia Doughty appealed against the community work and disqualification components of a sentence imposed by Judge Simpson, arguing they were manifestly excessive. Doughty collided with another vehicle while driving with a high level of alcohol in her system and failed to stop. She was found to have 1417 micrograms of alcohol per litre of breath. Doughty had a previous conviction for driving with excess breath alcohol from 2004. The District Court sentenced Doughty to 12 months' supervision, 300 hours of community work, and 18 months' disqualification. Doughty appealed the community work and disqualification components on the grounds that the Judge failed to give adequate weight to her personal circumstances, failed to consider comparable cases, and failed to have regard to section 13 of the Sentencing Act.

The court considered whether the sentence was manifestly excessive, acknowledging that the Judge sentenced without the benefit of a pre-sentence report and that the sentencing hearing was brief with limited information provided. The court noted that Doughty had been sober for six years prior to the incident, the offending coincided with her marriage ending, and she was on anti-depressant medication at the time. Doughty is a single mother and sole caregiver for her 15-year-old son, working full-time as a sales representative. The court accepted that had the additional information been available to the Judge, the sentence may have been different, possibly including a fine instead of community work. The court also noted that the community work sentence of 300 hours was high and out of line with other similar cases, which tend to indicate a fine as being more appropriate for a second offence of this kind. The court found the 18 months' disqualification to be excessive when coupled with the community work sentence.

The court quashed the sentence of community work and substituted it with a fine of $2,000. The court also quashed the sentence of 18 months' disqualification and substituted it with one of 15 months' disqualification. The court found that the original sentences were manifestly excessive, taking into account Doughty's personal circumstances, her motivation to address her alcohol problem, and the disproportionate severity of the original sentences.

Orders