Innes v Police - [2014] NZHC 1596

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI-2014-442-1221 [2014] NZHC 1596

BETWEEN
KATY ANN INNES

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:
3 July 2014

(Heard at Wellington)

Counsel:

J A Herd for appellant
E J Riddell for respondent

Judgment:

9 July 2014

JUDGMENT OF CLIFFORD J

Introduction

[1] The appellant, Katy Ann Innes, pleaded guilty to charges of driving under the influence of drink or drugs (third or subsequent),1 careless use of a motor vehicle,2 and driving with excess breath alcohol (third or subsequent).3 Ms Innes was sentenced by Judge Zohrab in the District Court at Nelson on 30 May 2014 to nine months’ imprisonment.4 Home detention was declined.

[2] Ms Innes now appeals against that sentence. She does not challenge the term of imprisonment, but rather the Judge’s decision to decline to commute that sentence of imprisonment to one of home detention.

1      Land Transport Act 1998, s 58.
2      Land Transport Act 1998, s 37.
3      Land Transport Act 1998, s 56.
4      Police v Innes DC Nelson CRI-2014-042-000483, 13 May 2014.

INNES v POLICE [2014] NZHC 1596 [9 July 2014]

Ms Innes offending – the facts

[3] The charges Ms Innes faced reflected separate incidents of driving on

19 November 2013 and 26 February 2014.

[4] On 19 November 2013, Ms Innes was driving a Holden Commodore car on a street in Nelson. She failed to make a left hand turn, collided with the kerb on the incorrect side of the road and came to rest on the pavement. There were a large number of pedestrians in the area, including children who were walking home from school. Ms Innes then accelerated away. Approximately 10 to 15 minutes later Ms Innes arrived back at that location. She accelerated extremely heavily, lost control and side swiped the side mirrors of two parked cars. A concerned resident stopped Ms Innes and demanded that she park and get out of the car. Ms Innes was described as being spaced out, vacant and incapable of controlling a car. Ms Innes stated that she could not stop, and drove off. The witness observed that Ms Innes had completely blown a tyre and was driving on the rim.

[5] The police located Ms Innes’ vehicle sometime later. Ms Innes’ daughter was sitting in the driver’s seat. Ms Innes’ daughter went through the drink-drive procedures and was tested as having 1072 micrograms of alcohol per litre of breath. She maintained that she was the driver. It was then established that Ms Innes’ daughter was disqualified. Whilst Ms Innes’ daughter was being processed, Ms Innes arrived at the Nelson Police Station. Ms Innes was said to be smelling of alcohol, having bloodshot eyes, slurring her words and unable to stand up properly. After some time, including a further unsatisfactory exchange between Ms Innes and the police, Ms Innes acknowledged that she had in fact been the driver. That was confirmed by a witness.

[6] Ms Innes says that she was not under 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.

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Details

Case: [2014] NZHC 1596
Decision Date: 9 July 2014

CaseChat Overview and Summary

Katy Ann Innes appeals her sentence of nine months' imprisonment for driving under the influence of alcohol, careless use of a motor vehicle, and driving with excess breath alcohol. The District Court at Nelson declined to commute the sentence to one of home detention. Innes argues that the court failed to give proper weight to the rehabilitative potential of a home detention sentence. The New Zealand Police, as the respondent, supports the Judge's decision.

The court must determine whether the District Court Judge erred in declining to commute the sentence to home detention. This involves assessing whether the Judge applied an incorrect principle, gave insufficient or excessive weight to a particular factor, or was plainly wrong.

The District Court Judge was aware of Innes' personal circumstances and her previous convictions, which included multiple instances of drink driving and breaches of community-based orders. The Judge concluded that only imprisonment would be an appropriate response, considering Innes' history of non-compliance with community-based sentences and the need for deterrence. The Judge also expressed a lack of confidence that Innes would comply with the conditions of home detention and that it would meet the aims and objectives of sentencing.

The High Court found that the Judge did not err in reaching his decision. The court dismissed Innes' appeal, affirming the District Court's decision to impose a sentence of imprisonment.

Orders