Hindrup v Police - [2012] NZHC 1173

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI-2012-416-0005 [2012] NZHC 1173

BETWEEN JOHN HINDRUP Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 29 May 2012

Counsel: ME Harris for Appellant
K Laurenson for Respondent

Judgment: 29 May 2012

ORAL JUDGMENT OF RODNEY HANSEN J

Solicitors: Woodward Chrisp, P O Box 347, Gisborne for the Appellant
(Email: adam.s@wwclaw.co.nz )
Elvidge & Partners, P O Box 609, Napier for the Crown
(Email: kim.laurenson@elvidges.co.nz )

JOHN HINDRUP V NEW ZEALAND POLICE HC GIS CRI-2012-416-0005 [29 May 2012]

Introduction

[1] Mr Hindrup appeals against a sentence of 18 months imprisonment imposed on him by Judge Wade on charges of excess blood alcohol (third or subsequent offence) and driving while disqualified (third or subsequent offence). There is no challenge to a term of three years disqualification also imposed.

[2] Mr Hindrup had been apprehended in September 2011 driving with a breath alcohol reading of 874 micrograms, over twice the legal limit. It was his thirteenth conviction for driving over the limit and his twentieth conviction for driving while disqualified. He explained to the police that he was driving after going out to watch a rugby game.

Judge’s decision

[3] The Judge was less than impressed with Mr Hindrup’s reason for driving and with expressions of remorse. The offending had occurred while Mr Hindrup was subject to a sentence of intensive supervision imposed when he was convicted of driving with excess blood alcohol in November 2010. He tendered references to show that since his apprehension he had enlisted the assistance of a church group to help him address his alcohol problems and had been attending meetings regularly for four months.

[4] The Judge essentially saw this as too little too late, given that the offending had gone back three or four months earlier. He saw the protection of the public as of paramount importance. By reference to the factors in the R v Clotworthy[1] he adopted a starting point of two years imprisonment which he discounted by 25 per cent to
take account of Mr Hindrup’s guilty plea.

Grounds of appeal

[1] R v Clotworthy [2003] 20 CRNZ 439.

[5] Ms Harris submits the Judge erred in two respects. First, he gave insufficient weight to mitigating factors and, secondly, she said he failed to consider the availability of a sentence of home detention. She argues that Mr Hindrup has made real and significant progress in changing his life around and is genuinely remorseful. She refers to a reference from the pastor of his church attesting to his making “remarkable progress” and having gained significant insight into his offending. While acknowledging that he struggled with the counselling associated with the previous sentence of intensive supervision, Ms Harris says that the church has succeeded by providing him with counselling three times a week and providing him with a mentor.

[6] Ms Harris points out that the home detention report assessed the address at which it was proposed Mr Hindrup serve a sentence as being suitable for an electronically…

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 Hindrup v Police

Details

AGLC: Hindrup v Police [2012] NZHC 1173
Case: [2012] NZHC 1173
Decision Date: 29 May 2012

CaseChat Overview and Summary

The High Court of New Zealand heard an appeal by John Hindrup against a sentence of 18 months imprisonment imposed for offenses of excess blood alcohol and driving while disqualified. Hindrup had a history of 20 convictions for driving while disqualified and 13 convictions for driving with excess blood alcohol. He had been apprehended in September 2011 driving with a breath alcohol reading of 874 micrograms, over twice the legal limit. The appeal concerns the sentence, not the conviction. Hindrup had argued that the judge gave insufficient weight to mitigating factors and failed to consider the availability of a sentence of home detention. The Crown argued that the judge was entitled to be sceptical of Hindrup's claim that he was now remorseful and had made significant progress towards addressing his alcohol issues.

The court considered the judge's scepticism regarding Hindrup's expressions of remorse and his efforts to address his alcoholism. The court found that Hindrup was making a genuine effort to address his alcoholism but had serious reservations about his prospects of rehabilitation in the conditions of a sentence of home detention. The court also considered the purposes of denunciation and deterrence. The court found that while rehabilitative considerations were important, in this case, they must give way to the purposes of denunciation and deterrence. However, the court did have some concerns about the length of the term of imprisonment and found that the starting point was excessive having regard to all the relevant factors. The court imposed a sentence of 14 months imprisonment, allowing the appeal against sentence.

Orders