Graham v Police - [2016] NZHC 3032

IN THE HIGH COURT OF NEW ZEALAND

INVERCARGILL REGISTRY

CRI-2016-425-36

[2016] NZHC 3032

IN THE MATTER of an appeal against sentence

BETWEEN

SANDY MAREE GRAHAM

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 12 December 2016

Appearances:

K A Owen for Appellant

R W Donnelly for Respondent

Judgment:

13 December 2016

JUDGMENT OF NICHOLAS DAVIDSON J (APPEAL AGAINST PERIOD OF DISQUALIFICATION)

Introduction

[1] This is an appeal against the appellant’s disqualification from driving for 15 months, following conviction for driving while disqualified.

Summary

[2] In the early evening of 1 October 2016, the appellant was stopped turning into her driveway in Otautau. On 26 July 2016, she had been disqualified from driving for one year, following sentencing for EBA offending (3rd and subsequent).

[3] She told police that, although she knew she should not be driving, she was trying to get the exhaust on her car fixed.

GRAHAM v NEW ZEALAND POLICE [2016] NZHC 3032 [13 December 2016]

[4] The appellant was charged with driving whilst disqualified under s 32 of the Land Transport Act 1998 (LTA). On 25 October 2016, she was sentenced by His Honour Judge Callaghan to a further 15 months disqualification (to begin on 25 July 2017, after the expiry of the earlier disqualification), and two months community detention.1

[5] She appeals only the disqualification aspect of her sentence, on the grounds that it was manifestly excessive.

Principles on appeal

[6] Appeals against sentence are brought under s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. This Court may only allow an appeal against sentence if it is satisfied that there has been an error in the imposition of the sentence, and that in the event, a different sentence should be imposed.2

[7] It is not the place of this Court to intervene and substitute its own views for those of the sentencing Judge. It is only if the sentence is “manifestly excessive” that the Court should interfere with the exercise of the Judge’s discretion. As Toogood J said (citing Ripia v R3) in Larkin v Ministry of Development:4
[26] The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.

[8]The focus on most appeals is thus on the end sentence. In Tutakangahau v R,5

the Court of Appeal held that:6

…the focus is on the sentence imposed rather than the process by which the sentence is reached. That encapsulation of the position will no doubt represent the position in the vast majority of cases.

1      Police v Graham DC Invercargill CRI-2016-025-1963, 25 October 2016.
2      Criminal Procedure Act 2011, ss 250(2) and 250(3).
3      Ripia v R [2011] NZCA 101 at [15].
4      Larkin v Ministry of Development [2015] NZHC 680.

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.

Keep reading for free

Create a free CaseChat account to read Graham v Police and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] NZHC 3032
Decision Date: 13 December 2016

CaseChat Overview and Summary

The appellant, Sandy Maree Graham, appealed against the disqualification from driving for 15 months, following her conviction for driving while disqualified. The appeal was heard in the High Court of New Zealand, Invercargill Registry. The legal issue before the court was whether the disqualification period was manifestly excessive. The appellant argued that the disqualification period was well outside the minimum period of disqualification for her offence, which was six months. The court noted that the extent of disqualification was at the discretion of the Judge and that the appellant's history and the fact that she was knowingly driving without any justification only weeks after disqualification for serious offending were aggravating factors. The court considered that the sentence of two months community detention, added to the earlier sentence of community detention, was a lenient response and was imposed to reflect the appellant's personal circumstances. The overall sentence reflected this lenient approach in conjunction with a stern disqualification. The appeal was dismissed.

Orders