Drummond v Police - [2013] NZHC 2573

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2013-454-29
[2013] NZHC 2573

BETWEEN
HENARE DRUMMOND

Appellant

AND

POLICE

Respondent

Hearing:	24 September 2013
Counsel:	A P Dye with A J Ross for Appellant A J Ewing for Respondent
Judgment:	2 October 2013

JUDGMENT OF THE HON JUSTICE KÓS

[1] Mr Drummond pleaded guilty in the District Court to being under the influence of alcohol to such an extent as to be incapable of having proper control of a vehicle,1 dangerous driving,2 failing to stop,3 and failing to comply with a direction
prohibiting him from driving while unlicensed.4 In all, four charges.

[2] Judge GM Ross sentenced him to eight months imprisonment on the first charge (together with 18 months disqualification), two months’ concurrent imprisonment on the second charge, and 3 months’ cumulative disqualification on the third. On the fourth he was convicted and discharged.5 An application for home detention was declined.

[3] From that sentence Mr Drummond appeals.

1       Land Transport Act 1998, s 58(1) and (4).
2       Land Transport Act 1998, s 35(1)(b).
3       Land Transport Act 1998, ss 114(2) and 52(1)(c).
4       Land Transport Act 1998, ss 113(2)(e) and 52(1)(c).
5       Police v Drummond DC Levin CRI-2013-031-596, 24 July 2013.

DRUMMOND v POLICE [2013] NZHC 2573 [2 October 2013]

Background

[4] On 11 May 2013, at 3.22 am, Mr Drummond was seen speeding in the main street of Levin. He was moving at approximately 100 km/h. Double the limit. Police officers attempted to stop Mr Drummond’s vehicle with red and blue flashing lights. He accelerated away, lost control of the vehicle and skidded into the opposite lane. Then he regained traction, overtook another motorist, turned into a side street on the wrong side of the road and switched off his headlights. There he again lost control. He crashed into the garden of a nearby house.

[5] When questioned by police, Mr Drummond was found to have 1,142 micrograms of alcohol per litre of breath. Almost triple the limit. He was so intoxicated that he did not recall anything that happened that evening. At the time, however, he explained that he had been trying to impress some women, standing outside a hotel, with his driving.

[6] This was Mr Drummond’s fifth drink driving conviction. The dates of that offending were July 2004 (x2) (when he was just 18),6 May 2007, July 2010 and now May 2013. The maximum penalty for a third or subsequent such conviction is two years’ imprisonment.7

Appeal

[7] Mr Drummond submits that the Judge erred:

a)as to rehabilitation: in concluding that “it is a matter of regret that [your desire to do better and attend alcohol counselling] did not exist at an earlier stage and earlier in your offending career” - because the appellant had actually taken substantial steps to address his alcohol issues;

b)as to remorse: in not giving Mr Drummond credit for remorse; and

6 On the first occasion the reading was 302, but culpable because he was under…

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 Drummond v Police

Details

AGLC: Drummond v Police [2013] NZHC 2573
Case: [2013] NZHC 2573
Decision Date: 2 October 2013

CaseChat Overview and Summary

The appellant, Mr Drummond, appealed against his conviction and sentence in the District Court for four driving offences, arguing that the sentencing judge had erred in several respects. The District Court had sentenced Mr Drummond to a total of 13 months’ imprisonment, along with disqualification from driving for 21 months. The High Court, after rehearing the appeal, found that while there may have been some error in the District Court’s consideration of Mr Drummond’s remorse, this was not sufficient to justify altering the sentence. The Court concluded that the District Court’s approach was consistent with previous cases, and therefore dismissed the appeal.

Mr Drummond was convicted in the District Court of four driving offences: driving while under the influence of alcohol to the extent that he was incapable of having proper control of the vehicle; dangerous driving; failing to stop following a direction from a police officer; and driving while unlicensed. The District Court sentenced him to eight months’ imprisonment for the first charge, two months’ imprisonment for the second charge (to run concurrently with the first), and three months’ disqualification from driving for the third. He was convicted but discharged in respect of the fourth. An application for home detention was declined. The District Court had taken into account Mr Drummond’s history of drink driving, including four previous convictions, in imposing its sentence. Mr Drummond appealed, arguing that the District Court had erred in several respects, and that he should have been given a sentence of home detention instead of imprisonment. The High Court found that while there may have been some error in the District Court’s consideration of Mr Drummond’s remorse, this was not sufficient to justify altering the sentence. The Court concluded that the District Court’s approach was consistent with previous cases, and therefore dismissed the appeal.

Orders