AA cumulative sentence of imprisonment can be imposed in respect of offences of driving while disqualified and driving with an excess breath or blood alcohol level when the offences have been committed in a single act of driving.
BThe circumstances in which such a sentence may be imposed are fact-dependant. The broad approach and some relevant factors are discussed in this judgment.
CThere is no basis to interfere with the sentences imposed.

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REASONS OF THE COURT

(Given by Randerson J)

Introduction

The appellant pleaded guilty in the District Court to one charge of driving with excess breath alcohol and one charge of driving while disqualified on the same occasion. He was convicted and sentenced by Judge Coyle to cumulative terms of 18 months imprisonment on each charge.[1]
[1] Police v Hughes DC Invercargill CRI-2010-025-4089, 18 March 2011.
Whata J dismissed the appellant’s subsequent appeal against sentence[2] but subsequently granted leave to appeal to this Court on two questions of law:[3]
(a)Whether a cumulative sentence of imprisonment can be imposed in respect of offences of driving while disqualified and driving with an excess breath or blood alcohol level, when the offences have been committed in a single act of driving; and
(b)If such cumulative sentences can be imposed, what are the circumstances in which such a sentence could be properly imposed.

Background facts

[2] Hughes v Police HC Invercargill CRI-2011-425-12, 20 May 2011.

[3] Hughes v Police HC Invercargill CRI-2011-425-12, 25 August 2011.

It is common ground that the appellant is a recidivist offender in relation to charges of the kind at issue. Commencing in 1972, he now has 18 convictions for driving with excess breath/blood alcohol and 24 for driving while disqualified.
On 23 November 2010, he was stopped while driving in Tuatapere. He was observed to be affected by drink and admitted to having consumed 12 beers. An evidential breath test recorded 606 mg per litre of breath (the legal limit being 400 mg). The appellant also admitted being disqualified from driving at the time having been indefinitely disqualified in February 1991. His explanation for driving was that he was going to pick up the daughter of a friend who had suffered a minor injury. It was not suggested there was anything else about the appellant’s manner of driving which was unsafe other than that inherent in the charges he faced.
The charges for the offending were laid indictably since the appellant had more than two relevant previous convictions.[4] Each offence carried a maximum penalty of two years imprisonment or a fine not exceeding $6,000 as well as a mandatory disqualification for a minimum of one year.

The sentence in the…

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 Hughes v R

Details

AGLC: Hughes v R [2012] NZCA 388
Case: [2012] NZCA 388
Decision Date: 27 August 2012

CaseChat Overview and Summary

In Hughes v R, the Court of Appeal considered the legality of imposing cumulative sentences for the offences of driving while disqualified and driving with an excess breath or blood alcohol level when committed in a single act of driving. The appellant, a repeat offender with numerous convictions for similar offences, had been sentenced to 18 months imprisonment for each offence, to be served cumulatively. The central issue was whether the sentencing judge had the jurisdiction to impose such sentences and, if so, under what circumstances it was appropriate to do so.

The Court found that there was no jurisdictional barrier to imposing cumulative sentences for these offences, even when committed in a single act of driving. The court's jurisdiction in such cases was affirmed by the Court of Appeal in previous decisions. The Court emphasized that the decision to impose cumulative sentences must be guided by the principles of the Sentencing Act, particularly sections 83 and 84, which provide that cumulative sentences are generally appropriate if the offences are different in kind. The Court concluded that driving while disqualified and driving with excess breath alcohol are indeed different in kind, with the former relating to non-compliance with court orders and the latter to public safety.

The Court further noted that while concurrent sentences are generally preferred, the totality of the offending must be reflected in the sentence. In cases of significant recidivism and high risk of reoffending, cumulative sentences could be justified. The Court found no error in the sentencing judge's application of these principles, given the appellant's extensive history of similar offences. The cumulative sentences were deemed appropriate to reflect the overall criminality of the offending and to serve as a deterrent. The Court ultimately upheld the sentences imposed, finding no basis to interfere with them.

Orders