Goldstone v Police - [2014] NZHC 2529

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CRI-2014-404-321

[2014] NZHC 2529

BETWEEN
LYNDON GOLDSTONE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 13 October 2014

Appearances:

J C Harder for the Appellant L Mills for the Respondent

Judgment:

15 October 2014

JUDGMENT OF ELLIS J

This judgment was delivered by me on Wednesday 15 October 2014 at 1.30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date:………………………….

Counsel/Solicitors:
J Harder, Public Defence Service, Auckland L Mills, Meredith Connell, Auckland

GOLDSTONE v NEW ZEALAND POLICE [2014] NZHC 2529 [15 October 2014]

[1] Mr Goldstone pleaded guilty in the District Court to one count of driving with excess blood alcohol (third or subsequent) and two charges of failing to comply with a prohibition (driving while disqualified). Judge Ryan sentenced him to 10 and a half months’ imprisonment and disqualified him from holding or obtaining a driver’s licence for 18 months. She made an order authorising him to apply for a zero alcohol licence once the disqualification was complete.

[2] Mr Goldstone appeals that sentence. In particular he says that the Judge was wrong not to commute his sentence of imprisonment to one of home detention.

Facts of the offending

[3] On 3 August 2013, Mr Goldstone was stopped by Police whilst driving. He was an unlicensed driver and was forbidden from driving until he obtained a current driver’s licence. The consequences of driving whilst forbidden were explained to him.

[4] At approximately 7.35pm on 11 November 2013, Mr Goldstone was driving on O’Donnell Avenue in Mt Roskill, Auckland. He was stopped by police at a breath test checkpoint. Mr Goldstone was tested and found to have 614 micrograms of alcohol per litre of breath. The legal limit is 400 micrograms. He had still not obtained a current licence.

[5] On 13 February 2014, while on bail for the 11 November offending, Mr Goldstone again drove whilst forbidden. He was convicted and discharged for this offence.

District Court sentencing

[6] Judge Ryan noted that Mr Goldstone has 72 previous convictions, that this was his seventh drink-driving conviction, and that he had offended again while on bail. She recorded that Mr Goldstone’s last excess breath alcohol offence was in 2011 with a level of 561 micrograms per litre of breath. For this offence and a charge of burglary, he received a sentence of four months’ home detention and was disqualified from

holding or obtaining a driver’s licence for a year. The Judge noted that since then Mr Goldstone had failed to answer District Court bail.1

[7] Judge Ryan considered the probation officer’s report, which assessed Mr Goldstone as being at medium to high risk of re-offending and a medium risk of harm to others, but which recommended a sentence of home detention. The Judge noted that Mr Goldstone had a significant leg injury, which his counsel had submitted would make imprisonment disproportionately severe.

[8] Mr Goldstone’s lawyer had signalled his client’s intention to reconnect with The Right Track programme…

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 Goldstone v Police

Details

AGLC: Goldstone v Police [2014] NZHC 2529
Case: [2014] NZHC 2529
Decision Date: 15 October 2014

CaseChat Overview and Summary

Lyndon Goldstone appeals his sentence of 10 and a half months' imprisonment imposed by the District Court for driving with excess blood alcohol and driving while disqualified. The appeal focuses on the Judge's decision not to impose a sentence of home detention, arguing that imprisonment would be disproportionately severe due to his medical condition. The High Court was required to determine whether the District Court Judge erred in not considering home detention, particularly in light of the appellant's medical circumstances, and if the sentence of imprisonment was disproportionately severe. The Court allowed the appellant to present additional medical evidence that had not been before the District Court at the time of sentencing. The appellant argued that the new evidence demonstrated that imprisonment would be disproportionately severe due to his medical condition and that home detention could adequately serve the purposes of deterrence and denunciation. The Crown argued that the Judge was aware of the appellant's medical condition and had already taken it into account by reducing the sentence by two months. The Court found that the new evidence did not compel the conclusion that a sentence of imprisonment would be disproportionately severe, particularly given the appellant's history of similar offending and his failure to comply with court orders. The Court concluded that the Judge was justified in finding that home detention would not adequately serve the purposes of deterrence and that no less restrictive outcome was available. Therefore, the appeal against sentence was dismissed.

Orders