Evans v Police - [2016] NZHC 2495

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2016-425-000027 [2016] NZHC 2495

BETWEEN
MARRIETTA LILLIAN EVANS

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 17 October 2016

Appearances:

No appearance for the Appellant
R Donnelly for the Respondent

Judgment:

19 October 2016

JUDGMENT OF NATION J

[1] On 26 April 2016, Marrietta Evans was disqualified from driving for 10 months on a drink driving charge. On 1 May 2016 at about 12.40 am, she was driving a vehicle in Invercargill. She drove for some 800 metres after Police following closely behind her had activated red and blue flashing lights. After initial discussions an evidential breath test was administered and gave a reading of 1024 mcgm of alcohol per litre of breath. She admitted being a disqualified driver.

[2] On 11 August 2016, she was sentenced on what was her fourth drink driving charge and for driving while disqualified.

[3] The District Court Judge noted the purposes of sentencing were to hold the appellant accountable, to denounce and deter both her and others from this type of offending and also to protect the community from her as a recidivist drink driver. He noted her issues with alcohol, that she had two pre-school children, the offending within such a short time of her previous sentence and the extremely high level of
alcohol in her system when she was apprehended.

EVANS v POLICE [2016] NZHC 2495 [19 October 2016]

[4] The Judge adopted a starting point of 16 months’ imprisonment including a one month uplift because of the proximity of the earlier sentencing and disqualification. He gave her a credit for her early guilty plea of 25 per cent, leading to an end starting point sentence of 12 months’ imprisonment. He decided it was appropriate to sentence her to home detention but only because she had two pre- school children. The ultimate sentence he imposed was thus six months’ home detention with various conditions, including addressing her need to deal with her alcohol problem. The Judge also ordered special conditions and standard conditions to apply for six months from the end of the sentence and disqualified her from driving for a period of 18 months. Orders were made under s 65 of the Land Transport Act (1998), again dealing with alcohol issues. He also made an order for the surrender of the car she was driving and cancelled the supervision order to which she had been earlier sentenced.

[5] Marietta Evans filed her own notice of appeal against that sentence. She stated the grounds of her appeal were “impact upon children; severity of sentence”.

[6] Ms Evans’ former counsel advised the Court that she had been declined legal aid for the appeal. Ms Evans was advised of the date of hearing for the appeal but was not at Court when the matter was first called at 10.00 am. She did come to the Court precinct at some later time but did not remain there and was not at Court when the appeal was…

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 Evans v Police

Details

AGLC: Evans v Police [2016] NZHC 2495
Case: [2016] NZHC 2495
Decision Date: 19 October 2016

CaseChat Overview and Summary

The case of Evans v Police involves an appeal against sentence by Marrietta Lillian Evans, who was found guilty of drink driving and driving while disqualified. The appeal was heard in the High Court of New Zealand in Invercargill. Evans was disqualified from driving for 10 months after being charged with drink driving on 26 April 2016. On 1 May 2016, she was caught driving again while disqualified, with a high level of alcohol in her system. Evans was sentenced on 11 August 2016 for her fourth drink driving charge and for driving while disqualified. The District Court Judge imposed a sentence of six months’ home detention with various conditions, including addressing her alcohol problem.

The legal issues in this case revolve around the principles of sentencing and whether the sentence imposed was manifestly excessive. Evans appealed the sentence, citing the impact on her children and the severity of the sentence. The High Court was required to determine if there had been an error in the imposition of the sentence and if a different sentence should be imposed. The Court considered the aggravating factors of the case, including the high level of alcohol in Evans' system, her previous similar offending, and the fact that she was driving while disqualified. The Court also considered the mitigating factor of Evans having two pre-school children.

The High Court found that the District Court Judge had taken a principled and orthodox approach to the sentencing process. The starting point of 12 months' imprisonment was within the acceptable range, considering the aggravating factors. The sentence of six months’ home detention was the least restrictive outcome available, taking into account Evans' circumstances. The Court concluded that the sentence was not manifestly excessive and dismissed the appeal.

Orders