Hitchens v The Queen - [2004] NZCA 33

IN THE COURT OF APPEAL OF NEW ZEALAND
CA380/03
THE QUEEN
v
WILLIAM JAMES HITCHENS
Hearing:10 March 2004

Coram:Glazebrook J
John Hansen J
Ronald Young J
Appearances: S J Shamy for Appellant

A M Powell for Crown

Judgment:25 March 2004

JUDGMENT OF THE COURT DELIVERED BY RONALD YOUNG J

[1]       In the early hours of 29 September 2001 the appellant was driving a Ford Cortina motor vehicle on McLeans Island Road, Christchurch. He lost control of the vehicle and collided with a power pole. As a result of the accident, the front seat passenger was killed, two rear seat passengers and the appellant were injured. The appellant was found to be driving with an excess breath alcohol level taken several hours after the accident of 157 milligrams of alcohol per 100 millilitres of blood. The appellant pleaded guilty on arraignment to one count of driving with excess breath alcohol causing death and two counts involving injury (s61 Land Transport Act 1998). He was sentenced to 3½ years imprisonment. He now appeals against that sentence submitting it was manifestly excessive.
Background facts
[2]        During the afternoon and evening of 28 September 2001 the appellant and his three friends had spent time drinking and driving around the city in the appellant’s car. One of the young men in the car, Mr Daniel Price-McGirr, was nominated as the sober driver. He ultimately died in the accident. At about 11.40 p.m. the vehicle was stopped by the police and Mr Price-McGirr was found to be driving. It is not known what happened between 11.40 p.m. and 5.00 a.m. when the accident occurred. By 4.45 a.m. the appellant was driving his Ford Cortina on McLeans Island Road. The maximum speed allowed is 100 kilometres per hour. As the vehicle approached a sharp right-hand corner it was estimated to be doing approximately 95 kilometres per hour. Its speed reduced to approximately 88 kilometres per hour as the vehicle began to slide and the appellant began to lose control. The corner had an advisory speed of 35 kilometres per hour. The evidence for the prosecution was that the vehicle left the road at a speed between 70 and 75 kilometres per hour and hit the power pole at approximately 70 kilometres per hour. The expert witness briefed by the defence estimated an impact speed at least 63 kilometres per hour.
[3]        The appellant’s blood alcohol level of 157 micrograms was taken some two hours after the accident. In addition, the blood sample was found to contain traces of tetrahydracannabinol. The most accurate assessment of the amount of cannabis consumed by the appellant was that he must have smoked at least one cannabis cigarette during the period of approximately four hours prior to the crash. A blood alcohol sample was taken from Mr Price-McGirr. On analysis it was found to contain no alcohol.
[4]        As to the injuries, one of the young men suffered a head injury with loss of consciousness, a fractured left tibia, lacerations to his…

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 Hitchens v The Queen

Details

AGLC: Hitchens v The Queen [2004] NZCA 33
Case: [2004] NZCA 33
Decision Date: 25 March 2004

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard the appeal of William James Hitchens against his sentence for driving with an excess breath alcohol level causing death and two counts of driving with excess breath alcohol causing injury. Hitchens had lost control of his vehicle while driving on McLeans Island Road, Christchurch, resulting in a collision with a power pole. The front seat passenger was killed, while Hitchens and two other rear seat passengers were injured. Hitchens was found to have a breath alcohol level of 157 milligrams of alcohol per 100 millilitres of blood, taken several hours after the accident. Hitchens pleaded guilty to the charges and was sentenced to 3½ years imprisonment, which he now appealed on the ground that it was manifestly excessive.

The court considered several legal issues in relation to the appeal. Firstly, whether there was sufficient evidence to support the District Court Judge's conclusion that Hitchens had a lengthy course of bad driving. Secondly, whether the Judge had erred in drawing the inference that Hitchens had insisted on taking over the driving from the sober driver, despite the latter being available to safely drive the car. Thirdly, whether the Judge had properly considered the aggravating and mitigating factors in determining the sentence. Fourthly, whether the disqualification period of 10 years was excessive.

The Court of Appeal held that the Judge had correctly identified the aggravating factors in the case, including significant alcohol intoxication combined with cannabis use, Hitchens driving the car when a sober driver was available, the incident taking place at night at speed, Hitchens entering the corner at a speed well in excess of the safe speed, and Hitchens' bad list of previous convictions for driving offences. The court further held that the sentence of 3½ years imprisonment was well within the discretionary sentence available to the Judge and was appropriate given the relative seriousness of the case. However, the court found the disqualification period of 10 years to be excessive and substituted it with a disqualification period of 7 years.

In summary, the Court of Appeal dismissed Hitchens' appeal against his sentence but reduced the disqualification period from 10 years to 7 years. The court held that the Judge had correctly identified the aggravating factors in the case and that the sentence of 3½ years imprisonment was appropriate given the relative seriousness of the case. However, the court found that the disqualification period of 10 years was excessive and substituted it with a disqualification period of 7 years.

Orders