Emery v Police - [2014] NZHC 950

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2014-463-000014 [2014] NZHC 950

LEONARD JAMES EMERY Appellant

v

NEW ZEALAND POLICE Respondent

Hearing: 7 May 2014

Appearances:

Tim Barclay for the Appellant
Ngaroma Tahana for the Respondent

Judgment:

8 May 2014

RESERVED JUDGMENT OF MOORE J

This judgment was delivered by on 8 May 2014 at 4:00pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar
Date:

EMERY v NEW ZEALAND POLICE [2014] NZHC 950 [8 May 2014]

[1] In the District Court at Rotorua, Mr Emery pleaded guilty to two charges:

(a) driving with excess blood alcohol (“EBA”) (a third or subsequent);

and

(b) driving whilst disqualified (a third or subsequent).

[2] Both charges arose out of the same driving event on 16 December 2013 when the appellant was stopped by the Police for a compulsory breath test. He elected a blood sample to be taken which, on analysis, showed that his blood alcohol level was
231 milligrams of alcohol per 100 millimetres of blood.

[3] On 20 March 2014, the appellant was sentenced to 18 months’ imprisonment on the EBA charge which his Honour took as the lead offence, and eight months’ imprisonment on the driving whilst disqualified charge. Both sentences were ordered to be cumulative with the effect the appellant received an end sentence of 26 months’ imprisonment.

The appeal

[4] Counsel for the appellant responsibly takes no issue with the sentence imposed on the EBA charge, recognising the appellant’s appalling prior convictions for the same offending as well as the very high blood/alcohol reading (on this and other occasions) placed the sentence imposed within the Judge’s sentencing discretion.

[5] Neither does the appellant take issue with the driving while disqualified sentence being made cumulative on the EBA sentence, recognising this approach was properly open to the sentencing Judge following the Court of Appeal’s decision
in Hughes v Police.1

1 Hughes v Police [2012] NZCA 388.

[6] Where the appellant submits the sentencing Judge erred was in failing to state how the starting point of 12 months’ imprisonment was arrived at in respect of the driving while disqualified charge. It is also submitted the starting point of 12 months’ imprisonment was disproportionately high when measured against comparable cases and as such amounts to appellate error. The appellant submits the appropriate starting point should have been six months’ imprisonment with an uplift of two months’ imprisonment to reflect the appellant’s previous offending and an early plea discount of two months, leaving a sentence end point of six months’ imprisonment. That sentence, cumulative on the 18 months’ imprisonment on the EBA charge, gives a total sentence end point of two years’ imprisonment.

[7] In other words, the appellant submits that the total term of imprisonment imposed should have been 24 months’ imprisonment rather than the 26 months’ imposed by the Judge.

Legal principles governing the appeal

[8] Section 250 of the Criminal Procedure Act 2011 governs sentence appeals from the District Court to the…

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: [2014] NZHC 950
Decision Date: 8 May 2014

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Emery v Police concerned an appeal against the sentence imposed on the appellant, Leonard James Emery, by the District Court at Rotorua. Mr Emery had pleaded guilty to two charges: driving with excess blood alcohol and driving while disqualified. These charges stemmed from a single incident on 16 December 2013, when Mr Emery was stopped by the Police for a compulsory breath test and subsequently had his blood alcohol level tested. The appellant was sentenced to 18 months' imprisonment for the excess blood alcohol charge and an additional eight months' imprisonment for driving while disqualified, with both sentences ordered to be cumulative. The appellant appealed against the cumulative sentence for driving while disqualified, arguing that the starting point of 12 months' imprisonment was disproportionately high and amounted to an error in principle.

The court was required to determine whether the sentencing judge erred in setting the starting point for the driving while disqualified charge and if the sentence imposed was disproportionately high, thus constituting an error of law or principle. The appeal hinged on the interpretation of relevant sentencing principles and the comparison of the appellant's case with similar cases to determine if the sentence was within the acceptable range. The court examined the appellant's history of offending, the nature of the charges, and the principles of deterrence, denunciation, and protection of the public.

The court found that the sentencing judge had properly considered the appellant's history of repeated offending, including multiple previous convictions for driving with excess blood alcohol and driving while disqualified. The judge had set a starting point of 12 months' imprisonment for the driving while disqualified charge, which was reduced by 33% due to an early guilty plea. The court concluded that this starting point was within the range acceptable under the relevant sentencing principles and that the final sentence of eight months' imprisonment was not manifestly excessive. The court dismissed the appeal, upholding the District Court's sentence.

Orders