Hood v Police - [2016] NZHC 1797

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-212 [2016] NZHC 1797

BETWEEN
PAUL HOOD

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 1 August 2016

Appearances:

R Rao for the Appellant
L Belk for the Respondent

Judgment:

4 August 2016

JUDGMENT OF THOMAS J

This judgment was delivered by me on 4 August 2016 at 2.30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Solicitors:

Inder Lynch, Auckland.
Kayes, Fletcher Walker, Manukau.

HOOD v NEW ZEALAND POLICE [2016] NZHC 1797 [4 August 2016]

Introduction

[1] Mr Paul Hood pleaded guilty to driving with excess breath alcohol, third or subsequent under s 56(1) and (4) of the Land Transport Act 1998.1 On 20 June 2016, he was sentenced to eight months’ imprisonment.2

[2] Mr Hood appealed on the basis that the Judge was mistaken as to the date of his most recent previous conviction, gave him insufficient credit for his guilty plea, efforts at rehabilitation and personal circumstances, and erred in exercising his discretion as to granting home detention.

[3] I have allowed Mr Hood’s appeal, quashed his sentence of imprisonment and sentenced him to four months’ community detention, 100 hours of community work and 12 months’ supervision, with the disqualification from driving to remain. I now set out my reasons for doing so.

Factual background

[4] At 7.24pm on 10 February 2016, Mr Hood was stopped by Police at an alcohol check point while driving in Pukekohe. The Police noted that he exhibited signs of recent alcohol intake and subsequent breath test procedures recorded an evidential breath test reading of 1242 mg of alcohol per litre of breath.

[5] Mr Hood admitted that he had consumed a wine and bourbon before driving and stated he was driving down the road to buy a Lotto ticket.

Background and previous convictions

[6] Mr Hood’s first driving charge was in 1995, with his next conviction in 2003. He was convicted of his third drink-driving charge in 2007, for which he received community work. He was sentenced for breach of community work in early 2008. His most recent charge was in March 2010 for driving with excess breath alcohol,
for which he was sentenced to community work and supervision.

1 Maximum penalty 2 years’ imprisonment or a fine not exceeding $6000, and mandatory
disqualification from driving for one year.
2 Police v Hood [2016] NZDC 12516.

[7] The initial pre-sentence report dated 5 May 2016 was positive about Mr Hood’s ability to rehabilitate. It assessed him as a low to medium risk of reoffending, as his alcohol related driving offences were spread over a long period, but this was the fifth such offence. It described him as “very genuine in his efforts to gain sobriety and have a healthier lifestyle”. He was “extremely remorseful for his offending”, “fully cognizant of the risk he poses while driving under the influence”, and had “made every effort to undertake counselling through the remand period”.

[8] By the time of the second…

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 1797
Decision Date: 4 August 2016

CaseChat Overview and Summary

In the High Court of New Zealand, Paul Hood appealed his conviction and sentence for driving with excess breath alcohol. Hood was sentenced to eight months' imprisonment by the District Court. Hood argued that the Judge misidentified the date of his most recent conviction, did not sufficiently credit his guilty plea, rehabilitation efforts, and personal circumstances, and erred in not granting home detention. The High Court allowed Hood's appeal, quashed his sentence of imprisonment, and sentenced him to four months' community detention, 100 hours of community work, and 12 months' supervision. The Court found that the Judge erred in identifying the aggravating factors of the offending and in not considering home detention as an appropriate sentencing option. The Court considered the pre-sentence reports, which recommended community detention and ongoing counselling, and found that there was no reason to preclude Hood from serving a sentence of home detention at home. The Court also found that Hood's lack of motivation to complete another residential alcohol programme did not mean he was not committed to rehabilitative measures.

The final orders of the Court were that Hood's sentence of imprisonment was quashed and replaced with a sentence of four months' community detention, 100 hours of community work, and 12 months' supervision. The disqualification from driving remained as imposed.

Orders