Hayes v Police - [2012] NZHC 1360

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI-2012-470-000019 [2012] NZHC 1360

BETWEEN JOSEPH CHARLES HAYES Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 15 June 2012

Appearances: A C Balme for Appellant
N Belton for Respondent

Judgment: 15 June 2012

ORAL JUDGMENT OF VENNING J

Solicitors: Crown Solicitor, Tauranga
Copy to: A C Balme, Tony Balme Law, Tauranga

HAYES V NEW ZEALAND POLICE HC TAU CRI-2012-470-000019 [15 June 2012]

Introduction

[1] The appellant was convicted of driving with excess breath alcohol (third offence) and failing to stop and dangerous driving.

[2] Judge Everitt sentenced him to nine months’ imprisonment. He also disqualified him from driving for a period of 18 months. Mr Hayes appeals against the imposition of the sentence of imprisonment but, subject to a minor matter to which I shortly refer, does not challenge the disqualification of 18 months.

Background

[3] In the early hours of 11 March this year the appellant was driving his Mitsubishi motor car on Eleventh Avenue, Tauranga. As he approached an alcohol check point he stopped and executed a u-turn driving off in the opposite direction at speed. The police followed in a car with activated red and blue flashing lights and siren. The appellant drove into Devonport Road, then left into Tenth Avenue and left into Cameron Road reaching speeds of 80 kilometres per hour. The appellant then turned right into Twelfth Avenue and right into Christopher Street crossing the centre line into the other lane. He then continued to travel at speed left onto Eleventh Avenue and failing to stop at a stop sign. The appellant then drove into Edgecumbe Road, again at such a speed his car crossed the centre line. He then turned right into Tenth Avenue and right on to St John Street. He then travelled at speed onto Eleventh Avenue where he again failed to stop at a stop sign. The appellant then turned left into Cameron Road, left into Tenth Avenue and right into Edgecumbe Road again. He then stopped his car and ran from it. He was caught by the police hiding behind some bushes.

[4] A breath test gave a reading of 777 micrograms of alcohol per litre of breath. The area the appellant had driven around was a built up residential area with a speed limit of 50 kilometres an hour. The weather was poor. It was drizzling and the road was wet and slippery.

[5] The appellant has two previous convictions for driving with excess breath or blood alcohol, one in 2001 and a more recent one from April 2009. In addition, in September 2001 he was convicted for driving whilst disqualified. On the occasion of his second offence in 2009 the appellant was sentenced to community work.

The sentencing in the District Court

[6] Judge Everitt considered a sentence of imprisonment rather than home detention was required to reflect the seriousness of the offending and to meet the principles of deterrence and denunciation. The pre-sentence report had recommended a sentence of…

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 Hayes v Police

Details

AGLC: Hayes v Police [2012] NZHC 1360
Case: [2012] NZHC 1360
Decision Date: 15 June 2012

CaseChat Overview and Summary

Joseph Charles Hayes appealed against the sentence of imprisonment imposed by Judge Everitt in the Tauranga District Court. The appellant was sentenced to nine months' imprisonment and disqualified from driving for 18 months for driving with excess breath alcohol, failing to stop, and dangerous driving. The legal issues in the appeal were whether the Judge erred in his approach to sentencing, whether the sentence imposed was manifestly excessive, and whether the sentence imposed was wrong in principle. The appellant's counsel submitted that the Judge erred when he focused solely on the principles of denunciation and deterrence and failed to take into account the relevant circumstances relating to the appellant of the Sentencing Act 2002, the need to assist in the rehabilitation and reintegration of the appellant, and the need to impose the least restrictive sentence appropriate. The appellant's counsel submitted that the Judge fell into error in concluding that a sentence of home detention would not adequately address the sentencing principles of denunciation and deterrence. The police opposed the appeal, submitting that imprisonment for nine months was a stern sentence, but it was open to the Judge in the circumstances of this case. In dismissing the appeal, the Court held that the Judge had failed to properly consider and analyse the need to impose the least restrictive outcome appropriate in the circumstances, particularly when home detention was available as a sentencing option. However, the Court concluded that a sentence of home detention would not satisfy the requirements of sentencing having regard to the relevant principles and purposes of the Sentencing Act. The balance must in this case come down in favour of denunciation and deterrence which supports the sentence of imprisonment. The appeal insofar as it relates to the disqualification of 18 months concurrently on the charge of failing to stop is allowed. The disqualification for 18 months on that charge is quashed. The appellant is convicted and discharged on the charge of failing to stop. The disqualification for 18 months on the other charges remains in place.

Orders