Jenner v Police - [2017] NZHC 3031

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

I TE KŌTI MATUA O AOTEAROA TE TIHI-Ō-MARU ROHE

CRI-2017-476-10 [2017] NZHC 3031

BETWEEN
CRAIG RUSSELL JENNER

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 7 December 2017

Appearances:

S A Saunderson-Warner for the Appellant
A R McRae for the Respondent

Judgment:

7 December 2017

ORAL JUDGMENT OF DUNNINGHAM J

[1] Mr Jenner pleaded guilty to driving a motor vehicle with an excess blood alcohol (EBA) concentration on a third or subsequent occasion. He pleaded guilty and was sentenced in the District Court to 16 months’ imprisonment and was disqualified from driving for two years.

[2] He now appeals against the length of imprisonment on the basis that the Judge made an error in taking the maximum penalty of two years’ imprisonment as the starting point.

Jurisdiction on appeal

[3] The appeal is brought under s 250 of the Criminal Procedure Act 2011. Pursuant to that Act, I may allow an appeal against sentence if I find that there was an
error in sentencing and that a different sentence should be imposed.

JENNER v NEW ZEALAND POLICE [2017] NZHC 3031 [7 December 2017]

Facts

[4] Shortly after midnight on 27 May 2017, Mr Jenner was stopped by police when driving on Kakanui Road in the Waitaki District. When police spoke to him he admitted he had consumed alcohol before driving and breath and blood alcohol test procedures were carried out. A subsequent analysis of the defendant’s blood showed it contained a proportion of 268 milligrams of alcohol per 100 millilitres of blood.1

[5] Mr Jenner has 10 previous convictions for EBA. The most recent conviction was in July 2011, some six years before the present conviction. In the last 10 years he has had two EBA convictions with the remaining EBA convictions being incurred in a period spanning from 1985 to 2007.

[6] The appellant explains that he had made arrangements for a sober driver to drive him on the night in question and that person drove him from the boat where had been drinking to a residence where he was planning to sleep in a car until morning. However, he woke up around midnight and made the decision to drive himself back to his flat in Kakanui.

District Court sentencing

[7] The District Court Judge recited Mr Jenner’s previous conviction history and the recommendation in the pre-sentence report for home detention. However, despite the mitigating factors referred to in the pre-sentence report, she noted he had already had served a sentence of imprisonment when convicted of EBA in 2011 but had offended again. In light of those factors she concluded:

Given your sheer number of previous convictions and the reading on this occasion, the only possible starting point has to be the maximum two years’ imprisonment. Nothing else will meet the aims and principles of sentencing. It takes into account your previous history. It is plain that despite everything, you continue to drink very very heavily knowing it has the impact…

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 Jenner v Police

Details

AGLC: Jenner v Police [2017] NZHC 3031
Case: [2017] NZHC 3031
Decision Date: 7 December 2017

CaseChat Overview and Summary

The appellant, Craig Russell Jenner, appeals against the length of imprisonment imposed by the District Court for driving with an excess blood alcohol concentration on a third or subsequent occasion. The court was required to determine whether the District Court erred in taking the maximum penalty of two years' imprisonment as the starting point for sentencing. The appeal was brought under section 250 of the Criminal Procedure Act 2011, which allows for an appeal against sentence if there was an error in sentencing and a different sentence should be imposed. The court examined the previous convictions of the appellant and the circumstances of the offence to determine the appropriate starting point for sentencing. The court found that the District Court erred in taking the maximum penalty as the starting point, and that a starting point of 19 months' imprisonment was more appropriate. The court deducted two and a half months for remorse, personal factors, and efforts taken to rehabilitate, and a further 25 per cent for the early guilty plea, resulting in a sentence of 12 months and one week imprisonment.

The appeal is therefore allowed, and the sentence of 16 months' imprisonment is quashed and a sentence of 12 months and one week imprisonment is substituted. The court upheld all other aspects of the District Court's decision, including the period of disqualification and the conditions of release.

Orders