Gemmell v Police - [2021] NZHC 3018

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2021-485-60

[2021] NZHC 3018

BETWEEN
ANGELA MARIE GEMMELL

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 14 October 2021 with further submissions on 19 and 22 October

Counsel:

J W Griffiths for the Appellant A J Brosnan for the Respondent

Judgment:

9 November 2021

JUDGMENT OF PALMER J

Solicitors:
Mainstreet Legal Ltd, Upper Hutt Crown Solicitor, Wellington

GEMMELL v NEW ZEALAND POLICE [2021] NZHC 3018 [9 November 2021]

What happened?

[1] About 4.40 pm on 9 April 2021, Ms Angela Gemmell drove her grey Holden Astra in Upper Hutt. A witness was concerned that she was driving erratically and called the Police. The Police arrived at her address a short time later. Around 5.58 pm, she returned a breath test result of 1301 micrograms of alcohol per litre of breath.

[2] Ms Gemmell pleaded guilty to the offence of driving with a breath alcohol level of more than 250 milligrams of alcohol per litre of breath while holding a zero- alcohol licence. She accepted that s 77 of the Land Transport Act 1998 (the LTA) conclusively presumes that the proportion of alcohol in her breath at the time of the alleged offence was the same as the proportion of alcohol indicated by the test.

[3] At sentencing, Ms Gemmell sought to rely on consumption of alcohol after driving home as a mitigating factor. In a case management memorandum in the District Court, the Police acknowledged that factor could not be disproved beyond reasonable doubt and did not dispute that at the sentencing. Ms Gemmell filed an affidavit saying that she was a binge alcoholic who had driven to the bottle store to purchase alcohol before returning to her home and then consuming approximately one and a half bottles of wine. She recalls arriving home and then she says “I went straight to my bedroom and consumed approximately one and a half bottles of wine”. While accepting the presumption in the LTA applies to her situation she maintains “I had not consumed alcohol until after driving. I did not drink before or during my driving”.

[4] The pre-sentence Alcohol and Other Drug report considered it was most unlikely Ms Gemmell had consumed that quantity of alcohol in a short space of time. Ms Gemmell had previously been convicted of drink-driving offences committed in 2016 and 2017 of 1387 and 1210 micrograms of alcohol of litre per breath respectively. For the first conviction, in 2016, she was fined $900.00, ordered to pay court costs of
$130.00 and disqualified from driving for one year. For the second conviction, in 2018, she was sentenced to intensive supervision for one year, disqualified from driving for three months and subjected to an alcohol interlock order.

[5] On 27 July 2021, in the District Court at Hutt Valley, Judge C Montague considered that Ms Gemmell’s offending and two previous convictions indicate an

entrenched pattern of drink/driving creating a real risk…

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 Gemmell v Police

Details

AGLC: Gemmell v Police [2021] NZHC 3018
Case: [2021] NZHC 3018
Decision Date: 9 November 2021

CaseChat Overview and Summary

Angela Marie Gemmell appeals against her conviction for driving with a breath alcohol level exceeding the legal limit while holding a zero-alcohol licence, and the subsequent sentence of nine months' supervision, six months' community detention, and an alcohol interlock order. Ms Gemmell contends that she did not consume alcohol before driving and that this mitigating factor should have resulted in a more lenient sentence. The New Zealand Police defend the sentence as appropriate given the circumstances.

The legal issues before the court were whether the sentencing judge erred in not sufficiently considering Ms Gemmell's mitigating evidence of consuming alcohol post-driving and if the sentence imposed was outside the appropriate range for such an offence. The court considered the relevant statutes, including the Land Transport Act 1998 and the Sentencing Act 2002, as well as precedents from the Court of Appeal and the Supreme Court.

The court found that while the mitigating evidence should have been considered, the weight to be given to such evidence is a matter of judicial discretion. The court also found that the sentence was within the appropriate range for the offence, considering Ms Gemmell's high level of breath alcohol, previous convictions, and the zero-alcohol licence. The court held that the sentencing judge was entitled to assess the mitigating evidence and determine its impact on culpability.

Final orders:
The appeal is dismissed. The original sentence of nine months' supervision, six months' community detention, and an alcohol interlock order stands.

Orders