Joseph v Police - [2019] NZHC 571

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2019-419-000007

[2019] NZHC 571

BETWEEN
RAWINIA JOSEPH

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 25 March 2019

Counsel:

RT Nye-Wood for Appellant ASC Alcock for Respondent

Judgment:

26 March 2019

JUDGMENT OF DOWNS J

This judgment was delivered by me on Tuesday, 26 March 2019 at 11 am.

Registrar/Deputy Registrar

Solicitors/Counsel:
Crown Solicitor, Hamilton.
Public Defence Service, Hamilton.

JOSEPH v POLICE [2019] NZHC 571 [26 March 2019]

The appeal

[1] Ms Rawinia Joseph appeals sentence. On 14 December 2018, Judge A S Menzies sentenced Ms Joseph to a 13-month term of imprisonment and disqualified her from driving for two years.1 Ms Joseph contends her sentence is manifestly excessive. She argues the Judge ought to have imposed shorter terms of imprisonment and disqualification.

Background

[2] On 9 May 2018, Ms Joseph drove with excess breath alcohol: 509 micrograms of alcohol per litre of breath. Ms Joseph has two earlier convictions for this offending, both in 2012.

[3] In August, September and October 2018, Ms Joseph stole groceries from two supermarkets and a bottle of oil from a service station. Ms Joseph twice failed to appear in Court. She also completed only an hour and a half of a sentence of 40 hours’ community work imposed in February 2018 (on a charge of theft).

[4] Hence the charges of driving with excess breath alcohol, theft (x 3), breaching bail (x 2) and breaching community work.

[5] Judge Menzies adopted these starting points and discounted the 18-month total by 25 percent for Ms Joseph’s guilty pleas:

Excess breath alcohol

8 months

3 x shoplifting

+ 4 months

2 x failing to answer bail, and history

+ 2 months

The balance of matters, history for breaches and dishonesty

+ 4 months

1 Police v Joseph [2018] NZDC 26424.

Starting point for the excess breath alcohol offence

[6] Ms Joseph contends the starting point ought not have been more than four months. Police acknowledge an eight-month starting point is “stern”.

[7] Police rely on Ngatikai v Police.2 An eight-month starting point was upheld in that case. The offence was Ms Ngatikai’s fourth. All her drink-drive offending occurred within five years. The reading was 899 micrograms of alcohol per litre of breath. Ms Ngatikai had been “swerving in her lane”.3

[8] More similar is Coles v Police.4 Mr Coles successfully challenged an eight- month sentence of imprisonment in relation to one charge of driving with excess breath alcohol. The drink-drive charge was his fourth offence of that kind. His reading was 667 micrograms of alcohol per litre of breath. Panckhurst J described the term as “clearly excessive”. The Judge substituted a five-month prison sentence.

[9] Coles is now a little old; it contains no obvious discussion about starting points rather than end sentences. Mr Coles pleaded guilty very promptly. He was young too (20). So, Panckhurst J’s starting point must have been about eight or nine months’…

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 Joseph v Police

Details

AGLC: Joseph v Police [2019] NZHC 571
Case: [2019] NZHC 571
Decision Date: 26 March 2019

CaseChat Overview and Summary

In the High Court of New Zealand, Rawinia Joseph appealed her sentence, arguing it was manifestly excessive. On 14 December 2018, Judge A S Menzies sentenced Ms Joseph to 13 months imprisonment and disqualified her from driving for two years. Ms Joseph drove with excess breath alcohol and committed multiple thefts, leading to charges of driving with excess breath alcohol, theft, breaching bail, and breaching community work. The Judge adopted starting points for each offence and discounted the 18-month total by 25% for Ms Joseph’s guilty pleas. The court assessed the starting points for each offence, considering previous cases and the circumstances of the offending. Ms Joseph argued the starting points were too high and the two-year disqualification period was excessive. The court allowed the appeal and quashed the sentence, sentencing Ms Joseph to a term of 10 and a half months’ imprisonment and disqualifying her from driving for 18 months.

The court considered whether the starting points were appropriate, examining the circumstances of the offending and previous cases. For the excess breath alcohol offence, the court noted Ms Joseph’s lower reading and the time elapsed since her previous convictions, suggesting a starting point of six months was appropriate. For the theft charges, the court considered the value of the stolen goods and Ms Joseph’s previous record of dishonesty, finding a four-month starting point appropriate. The court also assessed the starting points for the other matters and considered the need for totality in sentencing. The court found the two-year disqualification period too severe, considering Ms Joseph’s significant prison sentence and unremarkable driving record.

Orders