Garth v Police

[2015] NZHC 2398

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI-2015-416-017 [2015] NZHC 2398

BETWEEN

EDWARD RANFURLY GARTH

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	1 October 2015
Appearances:	V Thorpe for Appellant C R Walker for Respondent
Judgment:	1 October 2015

(ORAL) JUDGMENT OF LANG J [on appeal against sentence]

GARTH v NEW ZEALAND POLICE [2015] NZHC 2398 [1 October 2015]

[1]      Mr Garth pleaded guilty in the District Court to charges of causing injury whilst driving with excess breath alcohol and driving a motor vehicle whilst suspended.  On 23 July 2015 Judge Glubb sentenced him to an effective sentence of

11 months imprisonment.1   In addition, he disqualified Mr Garth from driving for a

period of 15 months, and made other consequential orders.  Mr Garth appeals against sentence on the basis that the Judge failed to give proper consideration to a sentence of home detention rather than imprisonment.

Background

[2]      Both charges arise out of the fact that, on the evening of 22 February 2015, Mr Garth and a passenger were in a motor vehicle travelling in an easterly direction near Te Arohoa.   Mr Garth was the driver of the vehicle.   As he drove around a moderate left hand bend the vehicle crossed the centre line into the west bound lane. He continued in that lane for approximately 70 metres before leaving the road to drive on the grass verge.  The vehicle then veered back onto the road and crossed back over the centre line into the east bound lane.  At or about that point, Mr Garth lost control of the vehicle and it veered back across the centre line into the west bound lane.  It continued for a further 50 metres before crashing into a shallow ditch and flipping over onto its roof.  The vehicle slid on its roof for a further 50 metres before coming to rest on the side of the road.  Mr Garth and his passenger then got out of the vehicle and walked away, apparently uninjured.

[3]      The  charge  of  driving  whilst  suspended  was  laid  because,  following  the incident on 22 February 2015, Mr Garth was served with a notice suspending his driver’s licence.  At about 2.45 pm on 10 March 2015 he was found driving a motor vehicle near Tologa Bay.  When stopped by the police, he admitted that he was a suspended driver.

Grounds of appeal

[4]      Ms Thorpe advances two grounds in support of the appeal.  The first is that the Judge failed to adequately weigh the various factors that were relevant to the imposition of home detention.  Had he done so, she submits that he ought to have

reached the conclusion that an appropriate sentence could be achieved by means of a less restrictive sentence or combination of sentences.  The second is that the Judge failed to take into account other relevant factors.

Home detention

[5]      The Judge dealt expressly with the issue of home detention in the following passage of his remarks:

[14]     I round that down in your favour to 11 months.  That is, of course, what is known as a short term of imprisonment.   It is one that I have the discretion, in appropriate cases, to convert to a community-based sentence, be it community detention or home detention.  On this occasion, looking to the matters of the need for deterrence and the need for denunciation – but most particularly in this case, the need for the protection of the public, because having people grossly intoxicated driving motor vehicles in this manner is a matter of significant concern to the community and the community needs to be protected from it – I decline to convert that.  I am satisfied, on the basis of the applicable authorities and the statutory factors, that in these circumstances a sentence of imprisonment is required and the purpose for which this sentence is being imposed cannot be achieved by a less restrictive sentence or combination of sentences.

[6]      The decision whether or not to impose a sentence of home detention is the exercise of a discretion.  The discretion is not unfettered.   It must be exercised in accordance with the purposes and principles contained in the Sentencing Act 2002 (the Act).2

[7]      It is clear from the passage set out above that the Judge expressly considered relevant principles and purposes of sentencing contained within the Act.   He considered that the need for deterrence and the need for denunciation, together with the need to protect the public, militated against a sentence of home detention.  For that reason he declined to impose such a sentence and imposed a sentence of imprisonment.

[8]      In effect, this appeal is against the weight that the Judge applied to the factors upon which he relied.   It would of course have been open to him to give greater weight to other factors favourable to Mr Garth.  I do not consider, however, that it is open to this Court to interfere with the Judge’s decision in its appellate jurisdiction.

The weight to be given to those principles vis a vis other principles is not a matter that can be entertained on appeal unless they produce a result that is plainly wrong. That cannot be said to be the case here. This ground of appeal fails as a result.

Other matters

[9]      The second ground of appeal is that the Judge failed to give consideration to the fact that Mr Garth is largely responsible for the care of his elderly grandmother. She is likely to be disadvantaged considerably if he is required to serve a full-time custodial sentence.

[10]     I agree that the Judge did not expressly refer to this issue even though it had been referred to during the submissions of counsel and in the pre-sentence report. Clearly, however, the Judge considered that issues of deterrence, denunciation and the need to protect the community were to the forefront in this case.   He was obviously aware of the impact that a sentence of imprisonment would have on both Mr Garth and his grandmother.   He chose to impose a sentence of imprisonment notwithstanding those consequences.

[11]     I consider that  the Judge was  entitled  to  give effect  to  those  sentencing principles, even though to do so would inevitably cause hardship for Mr Garth’s grandmother.  That factor on its own could not give rise to a successful ground of appeal

Result

[12]     The appeal against sentence is accordingly dismissed.

Lang J

Solicitors:

Crown Solicitor, Napier

Counsel:
V Thorpe, Gisborne