Higginson v Police - [2023] NZHC 2273

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CRI-2023-454-17

[2023] NZHC 2273

BETWEEN
JINA MAE HIGGINSON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 17 August 2023

Appearances:

A Younger for Appellant

E R Pairman for Respondent

Judgment:

22 August 2023

JUDGMENT OF GRICE J

Appeal against sentence

Introduction

[1] Ms Higginson has pleaded guilty to driving with excess breath alcohol, being her third or subsequent offence of this type. This offence carries a maximum penalty of two years’ imprisonment or a fine of $6,000.1 The Court must also order the driver be disqualified for at least one year.

[2] Ms Higginson was sentenced in the District Court at Palmerston North on 15 June 2023.2 Ms Higginson received a sentence of four months’ home detention, special conditions for six months on completion of her home detention sentence, and an alcohol interlock sentence. Ms Higginson now appeals this sentence on the grounds

1 Land Transport Act 1998, ss 56(1) and 56(4).
2 Police v Higginson [2023] NZDC 12039 [Judgment under appeal].

HIGGINSON v NEW ZEALAND POLICE [2023] NZHC 2273 [22 August 2023]

that insufficient discounts were afforded for her personal circumstances, her efforts of rehabilitation thus far, and her prospects of future rehabilitation.

[3] I conclude that although there was an error in the District Court’s sentence as a discrete discount was not awarded for Ms Higginson’s rehabilitative efforts, the sentence was well within range. Awarding a further discount would be considered tinkering and I dismiss the appeal.

Background

Offending

[4] On 10 January 2023 at around 2.31 am, Ms Higginson was stopped in Palmerston North for a compulsory breath test. Breath test procedures were followed, and Ms Higginson, in her evidential breath test, produced a result of 936 micrograms per breath. She was also in breach of her restricted licence, being unsupervised at the time of driving.

District Court decision

[5] Judge Edwards, after explaining the offending and the reasons Ms Higginson gave for the offending, discussed Ms Higginson’s personal background and circumstances. The Judge said that although the Court has sympathy to Ms Higginson’s circumstances which were a direct causal link to her drinking, these were not a direct and causal link for choosing to drive.3 The Judge emphasised the risk associated with drink driving to her and her whānau as well as the community.

[6] The Judge noted that Ms Higginson’s circumstances would be taken into account.4 The Judge addressed Ms Higginson’s four previous sentences for drink driving, with the two most recent being community-based sentences that did not, ultimately, have the required rehabilitative and deterrent effect.5 However, this

3 At [3].
4 At [5].
5 At [5].

offending has caused Ms Higginson to get help, committing to her own rehabilitation.
The Judge also emphasised the need for deterrence for this kind of offending.6

[7] Considering the level of alcohol in her system, the fact Ms Higginson should not have been driving at all, and her…

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.

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Details

Case: [2023] NZHC 2273
Decision Date: 22 August 2023

CaseChat Overview and Summary

Ms Higginson appealed her sentence for driving with excess breath alcohol, her third or subsequent offence. The appeal was heard by Grice J in the High Court of New Zealand. The key legal issues were whether there was an error in the sentence and whether the sentence was manifestly excessive. Ms Higginson argued that the sentence should be reduced because the District Court had not awarded a discount for her rehabilitative efforts, her remorse, and her background factors resulting in alcohol addiction. The Police argued that while a discount for rehabilitation could have been awarded, varying the sentence on appeal would be tinkering as the sentence was well within range. The Court held that although there was an error in the District Court’s sentence as a discrete discount was not awarded for Ms Higginson’s rehabilitative efforts, the sentence was well within range. Awarding a further discount would be considered tinkering and the appeal was dismissed.

Orders