[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…

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 Hansch v Police

Details

AGLC: Hansch v Police [2014] NZHC 2438
Case: [2014] NZHC 2438
Decision Date: 29 September 2014

CaseChat Overview and Summary

In the High Court of New Zealand, Jason Hansch appealed against his sentence for driving while disqualified and driving with excess breath alcohol. He argued that the sentence of nine months' imprisonment and two years' disqualification was manifestly excessive because the sentencing judge failed to give sufficient weight to his remorse and did not properly consider electronic monitoring. The appeal was heard on 29 September 2014, with S Clark appearing for the appellant and N Small for the respondent. The court considered the legal issues regarding the starting point for sentencing, the appropriate discount for remorse, and the consideration of electronic monitoring as an alternative to imprisonment.

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