Henderson v Police

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2015-425-000046 [2015] NZHC 3249

BETWEEN

CRISTY MAREE HENDERSON

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	14 December 2015
Appearances:	K L McHugh for Appellant M G McClenaghan for Crown
Judgment:	16 December 2015

JUDGMENT OF DUNNINGHAM J

[1]      The  appellant  appeals  against  her  sentence  of  13  months’ imprisonment

imposed on the following charges:

(a)       driving with excess blood alcohol (third or subsequent);1

(b)      driving in a dangerous manner;2 and

(c)       driving contrary to a zero alcohol licence.3

Grounds of appeal

[2]      The grounds of appeal relied on are that:

(a)       the Judge erred in the adoption of a starting point that was too high and erred in adopting a three month uplift regarding two features of

1      Land Transport Act 1995, ss 56(1) and 56(4).

2      Section 35(1)(b).

3      Sections 32(1)(b) and 32(3).

HENDERSON v NEW ZEALAND POLICE [2015] NZHC 3249 [16 December 2015]

the offending (driving conduct and two previous convictions) which was effectively “double counting”;

(b)the  Judge  erred  in  his  application  of  deductions  from  the  overall starting point and, in particular, did not adequately recognise the appellant’s  efforts  at  rehabilitation  (s  7(h)  of  the  Sentencing Act

2002),  meaning  that  the  overall  percentage  of  credit  given  was inadequate; and

(c)      the Judge erred in principle and in the exercise of his discretion to not impose home detention on the basis that the appellant consumed alcohol at her home prior to the offending (R v Hill), and also in determining that home detention “is to send the wrong message”. 4

The facts of the offending

[3]      The offending occurred on 6 May 2015.   The appellant was observed on Marama Avenue, Invercargill, driving north and crossing the centre line in the face of oncoming traffic.   Drivers heading in the opposite direction had to take evasive action, by braking and swerving to avoid the appellant.

[4]      A driver heading in the opposite direction to the appellant attempted to get her attention by flashing his headlights, as he braked hard to avoid her.  This failed, and she simply continued driving.

[5]      As  the  appellant  continued  down  Dunns  Road,  she  was  observed  to  be continuing to swerve and cross the centre line.  She briefly stopped on the side of Dunns Road, before dangerously pulling out into traffic, forcing a van driver to swerve and avoid a collision.

[6]      On Ettick Street the appellant was stopped by Police.  It was clear that she had been drinking.   She immediately stated that she was an alcoholic.   She was breath tested, which recorded that she had 1438 micrograms of alcohol per litre of

breath. At the time, she was on a zero alcohol licence.

4      R v Hill [2008] NZCA 41, [2008] 2 NZLR 381.

District Court sentencing

[7]      When sentencing the appellant, the Judge noted her previous convictions, which were both for drunk driving and occurred in 2011 and 2012.  He also noted her   identified   problem   with   alcohol,   and   her   attempts   at   abstinence   and…