IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2014-404-241 [2014] NZHC 2438
JASON HANSCH
v
NEW ZEALAND POLICE
Hearing: 29 September 2014 Appearances:
S Clark for the appellant
N Small for the respondentJudgment:
29 September 2014
ORAL JUDGMENT OF THOMAS J
Solicitors:
Meredith Connell, Auckland.
Counsel:
S Clark, Auckland.
HANSCH v NEW ZEALAND POLICE [2014] NZHC 2438 [29 September 2014]
Background
[1] Mr Hansch appeals his sentence of nine months’ imprisonment and two years’ disqualification for driving while disqualified (third or subsequent) and driving with excess breath alcohol (third or subsequent). His appeal is on the ground that the sentence was manifestly excessive as the Judge failed to give sufficient weight to remorse and did not properly consider electronic monitoring.
Facts
[2] On 1 May 2004, Mr Hansch was convicted of driving while disqualified. On
26 April 2007 and again in 11 February 2013 he was convicted of the same offence. On 19 February 2014 he was stopped by police at just after 2 pm. His breath was found to contain 625 micrograms of alcohol per litre of breath. The drink driving charge was laid at the aggravated level given his previous convictions. He has a conviction from February 2013 where the level was 702, April 2007 where the level was 681, May 2004 where the level was 768 and August 2003 where the level 722. He also has a conviction from 2000 at the under 20 level.
District Court decision
[3] Mr Hansch was sentenced on 23 July 2014 in the Waitakere District Court. The Judge recorded that he would treat the driving whilst disqualified as an aggravating factor in coming to a starting point on the driving with the excess breath alcohol (third or subsequent). He noted the aggravating factors of Mr Hansch’s previous convictions. He noted that Mr Hansch had undertaken a CADS course, attended AA sessions, engaged a counsellor, and was in full employment. His family was supportive of him. The pre-sentence report writer had recommended a sentence of intensive supervision, community detention and community work. The Judge referred to the relevant purposes and principles of sentencing and concluded that a sentence of imprisonment was the least restrictive outcome.
[4] He had taken a starting point of 12 months’ imprisonment on the excess
breath alcohol charge. He allowed a 25 per cent discount for the early guilty plea
and concluded that the final sentence should be a sentence of nine months’ imprisonment. Standard release conditions were imposed but it does not appear that any special conditions were imposed. Mr Hansch was disqualified from holding or obtaining a driver licence for a period of two years and a zero alcohol licence was also imposed.
Appellant’s submissions
[5] Mr Clark appears for Mr Hansch today. Although in his written submissions there was some reference to whether the starting point of 12 months’ imprisonment was too high, fairly Mr Clark acknowledged that it was within range, particularly when the driving whilst disqualified (third or subsequent) was factored…
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CaseChat Overview and Summary
The court found that the starting point for sentencing was within the appropriate range, but there was an error in the sentence because the judge failed to give a discount for remorse. The court held that the judge should have given a discount for remorse, as Hansch had taken genuine steps to rehabilitate himself, including attending CADS courses, AA sessions, and engaging a counsellor. The court also found that the judge did not properly consider electronic monitoring as an alternative to imprisonment, which is particularly important given Hansch's history of drink driving and lack of previous electronically monitored sentences. For these reasons, the appeal was allowed, and a new sentence was imposed. Hansch would serve six months' community detention coupled with 12 months' intensive supervision, with conditions as outlined in the pre-sentence report. The period of disqualification and the mandatory zero alcohol licence were not interfered with.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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