Holdem v Police

[2012] NZHC 2298

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2012-409-000074 [2012] NZHC 2298

FIONA ANN HOLDEM

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         7 September 2012

Appearances: R Maze for Appellent

AMS Williams for Respondent

Judgment:      7 September 2012

ORAL JUDGMENT OF FOGARTY J

[1]      This  is  an  appeal  against  sentence.   The appellant  was  sentenced  at  the District Court at Christchurch by Her Honour Judge Smith to nine months imprisonment and 18 months disqualification on a charge of refusing to give a blood specimen to a doctor, it being a third or subsequent charge.  In fact it was her fifth blood alcohol offending.   She was also convicted of refusing to  accompany an enforcement officer and received a three months imprisonment charge and a concurrent six months disqualification from driving.   She was convicted and discharged of assaulting a police officer.

[2]      Counsel are agreed that there is no power to impose a term of imprisonment for the charge of refusing to accompany an enforcement officer and the Crown

agrees that in the circumstances the appropriate sentence is conviction and discharge.

HOLDEM V NEW ZEALAND POLICE HC CHCH CRI-2012-409-000074 [7 September 2012]

[3]      The appeal really focused on whether or not there was any basis for changing the nine months imprisonment sentence.  Mr Maze for the appellant invited me to follow an observation of Professor Hall that general deterrence sentences should be given little weight where the offender suffers from an addiction because such an offender is not an appropriate medium for making an example to others.

[4]      It is true that deterrence sentences to offenders suffering from addiction in cases such as this may well not be effective in deterring further offending.  However, a general deterrence sentence is intended to send a signal to the community that there is to be zero tolerance of this kind of activity.  In a sense, imposing a prison sentence on persons who are addicted to alcohol for driving while under the influence of alcohol can operate as a personal deterrence where the alcoholic appreciates that they are suffering from an illness which simply rules out driving.  In that sense they can function as a personal deterrence.

[5]      The main difficulty with Mr Maze’s argument is that he was effectively inviting me to depart from the longstanding sentencing policy which has been in place for at least a decade, and I say that only from the time that I have been sitting on the bench, to impose prison sentences where there has been multiple drink driving offending.   It is in the nature of the sentencing that the lead authority comes really from the High Court.  It is the well known judgment of Wild J in Clotworthy[1] which was delivered in September 2003.

[1] Clotworthy v Police (2003) 20 CRNZ 439.

[6]      Mr Maze was not able to offer any authorities either from the High Court or the Court of Appeal which warrants a departure from what I understand to be a settled sentencing policy, and Mr Williams, for the Crown, reaffirmed, from his understanding of the authorities, my view as to the fact that this policy of prison sentencing for multiple offending is consistently applied across the country and has been for some time.

[7]      For these reasons I think it is impossible to argue that Judge Smith’s decision

was manifestly excessive and the appeal is dismissed.

Solicitors:

R A Fraser & Associates, P O Box 163 St Asaph Street, Christchurch, R W Maze, P O Box 145, Christchurch Christchurch

Raymond Donnelly & Co, Christchurch,  [email protected]