Edie v Police - [2012] NZHC 3518

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI 2012-443-053 [2012] NZHC 3518

BETWEEN PAUL THOMAS DONOVAN EDIE Appellant

ANDTHE POLICE Respondent

Hearing: 17 December 2012

Appearances: A Dallison for appellant
J I Mooney for respondent

Judgment: 18 December 2012

JUDGMENT OF ALLAN J

In accordance with r 11.5 I direct that the Registrar endorse this judgment with the delivery time of 3.45 pm on 18 December 2012

Solicitors:
Paul Keegan, New Plymouth
Crown Solicitor New Plymouth

EDIE V THE POLICE HC NWP CRI 2012-443-053 [18 December 2012]

Introduction

[1] On 6 December 2012, the appellant was sentenced in the New Plymouth District Court to three months imprisonment after pleading guilty to one charge of driving with excess breath alcohol, this being his third such offence.[1]

[1] Police v Edie DC New Plymouth CRI-2012-043-2014, 6 December 2012

[2] The appeal is brought upon the ground that the sentence was manifestly excessive, and that a sentence of home detention ought to have been imposed. No issue is taken with the starting point or the level of deductions made for mitigating factors. The sole focus is upon the refusal to grant home detention.

Background

[3] At about 9.15 pm on Friday 13 July 2012, the appellant was driving on King Street, New Plymouth. He was with two associates. He was stopped by a police patrol. It became apparent that the appellant had recently consumed alcohol. A breath test procedure was carried out. The appellant subsequently elected to have a blood sample taken. Upon analysis, that blood sample was found to contain a proportion of 90 mg of alcohol per 100 mll of blood. By way of explanation the appellant said he had been drinking at home about an hour earlier, and had driven into the city with friends in order to buy more alcohol.

The District Court decision

[4] The appellant was liable to a sentence of imprisonment because he had been convicted on 25 May 2010 and 22 June 2010 respectively, of breaches of the blood/breath alcohol provisions. On the first occasion he was fined and disqualified from driving for six months. On the second occasion he was also charged with driving while disqualified. Remarkably, that offence, along with the second breath alcohol offence, was committed just two days after he was sentenced for the first offence. He was sentenced for the second pair of offences to 100 hours community

work, together with supervision, and was disqualified from driving for a further six months.

[5] Judge Roberts noted the relatively low reading, which was barely above the legal limit, but observed the pattern of recent offending, and indicated at the outset of his sentencing remarks, that he did not propose to follow the recommendation in the pre-sentence report which was for home detention and a final warning. The Judge said that the recommendation was:

… unrealistic and I will not be following it.

[6] He went on to record the appellant’s effort to change his lifestyle since his earlier…

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.

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Details

Case: [2012] NZHC 3518
Decision Date: 18 December 2012

CaseChat Overview and Summary

In the case of Edie v Police, the appellant, Paul Thomas Donovan Edie, appealed against his sentence of three months imprisonment imposed by the New Plymouth District Court. Edie was found guilty of driving with excess breath alcohol, marking his third such offence. The appellant argued that the sentence was manifestly excessive and that a sentence of home detention should have been imposed instead. The High Court was required to determine whether the District Court Judge had erred in not imposing a sentence of home detention, and if so, whether the appeal should be allowed and a sentence of home detention imposed instead. The Court considered the reasons provided by the District Court Judge for not imposing a sentence of home detention and whether they were sufficient to justify the sentence of imprisonment.

The Court held that the appellant was liable to a sentence of imprisonment due to his previous convictions for breaches of the blood/breath alcohol provisions. However, the Court found that the District Court Judge had erred in not imposing a sentence of home detention. The Court noted that while the offending was serious, this did not exclude the possibility of home detention. The Court also found that the appellant's poor compliance record was not sufficient to rule home detention out, given the relatively low alcohol reading in the present case. The Court further noted that a sentence of home detention would allow the appellant to attend a programme for repeat drink drivers, which would not be possible if he was imprisoned. Ultimately, the Court concluded that the appellant ought to have been sentenced to home detention and not to imprisonment, and allowed the appeal. The sentence of three months imprisonment was quashed, and a sentence of three months home detention was substituted, along with a final warning that imprisonment would be inevitable if the appellant committed any further offence under the blood/breath alcohol legislation. The sentence of home detention was subject to certain conditions, including residing at a specified address, not purchasing or consuming alcohol or illicit drugs, attending an assessment for alcohol and drug counselling, and completing any recommended programmes. The Judge's orders with respect to disqualification from driving remained undisturbed.

Orders