Hollingum v Police - [2016] NZHC 1291

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

CRI-2016-406-000003 [2016] NZHC 1291

BETWEEN
ASHLEY ROBERT HOLLINGUM

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 14 June 2016

Appearances:

C J Tennet for Appellant
S K O'Donoghue for Crown

Judgment:

15 June 2016

JUDGMENT OF DUNNINGHAM J

[1] On 26 April 2016, the appellant was sentenced in the District Court on charges of driving with excess breath alcohol (3rd or subsequent) and careless driving.1 The appellant had, after pulling over to let one of his passengers out, accelerated away at speed, revving the engine so high that the clutch flywheel flew to pieces. As a consequence, he lost control of the vehicle and crashed into a power
pole. The pole was severely damaged and had to be replaced. The vehicle was written off. The appellant’s evidential breath test showed the level of alcohol in his breath was 688 micrograms per litre of breath. This was his eighth EBA offence.

[2] Mr Hollingum pleaded guilty to the charges and was sentenced to

18 months’ imprisonment on the EBA charge and ordered to pay approximately

$12,500 reparation for the damage caused to the power pole.

[3] Mr Hollingum now appeals that sentence on the grounds that the sentence of

imprisonment was manifestly excessive and that the Judge had “steered by the

maximum” and that it was wrong to do so. Furthermore, the Judge was wrong not to

consider home detention (or community detention) as mooted by counsel.

[4] As counsel for the appellant acknowledges, a complicating factor in this appeal is that Mr Hollingum subsequently faced a charge of assault with intent to injure, to which he pleaded guilty. He was sentenced on 18 May 2016.2 In sentencing him, the District Court Judge took account of the fact that he was currently serving 18 months’ imprisonment and so matters of totality had to be borne in mind.

[5] After going through the sentencing process, the Judge formed a view that “on a standalone basis, a charge like this could easily justify a term of imprisonment of around 15 months’ imprisonment”. After taking into account the circumstances in which the assault took place and the deduction for the guilty plea, he reached an end sentence of 10 months. The Judge then asked himself whether “if all of these matters had been before me on the same day, would I have considered that an overall sentence of 28 months was the right outcome?” Approaching the matter on a totality basis, he decided that sentence would have been too much and therefore reduced the sentence for assault to seven months’ imprisonment to be cumulative on the sentence of 18 months Mr Hollingum is currently serving. He declined to add release conditions, noting that the Judge sentencing on the EBA charge imposed special release conditions to last for six months past his sentence end date which included that Mr Hollingum undertake alcohol abuse treatment and counselling.

The grounds of appeal

[6] The grounds of appeal set out…

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: [2016] NZHC 1291
Decision Date: 15 June 2016

CaseChat Overview and Summary

Ashley Hollingum, the appellant, appeals against his sentence of 18 months’ imprisonment for driving with excess breath alcohol and careless driving. The sentence was imposed by the District Court after the appellant crashed into a power pole while driving at a high speed with a breath alcohol level of 688 micrograms per litre of breath. This was the appellant’s eighth excess breath alcohol offence. The appellant argues that the sentence was manifestly excessive and that the Judge erred by not considering home detention as a sentencing option. The High Court must determine whether the District Court Judge erred in imposing the sentence and, if so, whether a different sentence should be imposed.

The court considered the factors identified in Clotworthy v Police, including the high breath alcohol level, the manner of driving, the appellant’s previous offending history, and the need for a deterrent and denunciation message. The court found that the Judge was in error for not articulating a reason for adopting the full two years as the starting point for the sentence, but this did not lead to a different sentence being imposed as the totality of the sentence was within range. The court also found that the Judge considered but rejected imposing an alcohol interlock licence as a sentencing option, finding that the three-year disqualification period was sufficient.

The appeal was dismissed, and the sentence of 18 months’ imprisonment remains in place. The court found that the totality of the sentence received on the excess breath alcohol charges and the subsequent charge for assault with intent to injure was within range and should not be disturbed.

Orders