Keats v Police - [2014] NZHC 2224

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2014-409-57 [2014] NZHC 2224

BETWEEN
NIGEL ANTHONY KEATS

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 11 September 2014

Appearances:

P N Allan for Appellant
A Williams and C Martin for Respondent

Judgment:

12 September 2014

JUDGMENT OF MANDER J

[1] Nigel Keats appeals his sentence of 6 months community detention, 100 hours community work, 9 months supervision, and 15 month disqualification imposed on a charge of driving with excess breath alcohol in its aggravated form, being his third or subsequent offence.

[2] No issue is taken with the period of supervision, nor with the period of disqualification. It is submitted however that the sentencing Judge erred in imposing periods of community detention and community work without extending credit to the appellant for his guilty plea or the support provided by his employer.

[3] Mr Keats was apprehended with a breath alcohol level of 751 micrograms of alcohol per litre of breath. He had previously been drinking in the Swamp Tavern before setting off to drive home, a very short distance, literally down the road from the establishment he had been drinking at.

[4] Mr Keats entered an early guilty plea and was supported by a letter from his employer which attested to his work attributes. The presentence report advised of

KEATS v NEW ZEALAND POLICE [2014] NZHC 2224 [12 September 2014]

Mr Keats acknowledgment of his harmful pattern of alcohol consumption and that he was motivated to engage with a programme to address his level of alcohol consumption.

[5] It was submitted on behalf of Mr Keats that the sentencing Judge applied s 16 of the Sentencing Act 2002, and having concluded that imprisonment was not appropriate, decided to impose a community-based sentence. Having made that decision, it is submitted the Court erred in not going on to make appropriate deductions for relevant mitigating factors. While these mitigating features were recognised by the Judge, they did not result in deductions from the “starting points” applied in respect of the terms of community detention and community work. That has resulted, so it was submitted, in a manifestly excessive sentence.

[6] The Crown made reference to Clotworthy v Police,1 in which Wild J set out a list of relevant factors to be taken into account in cases involving recidivist drink- drivers. In that regard, the Crown emphasised the appellant’s breath alcohol level which was approaching twice the legal limit, and that Mr Keats most recent drink- driving conviction was in August 2011. The Court’s attention was also drawn to the recent decision of Matkovich v Police,2 where a 6 month term of imprisonment imposed on a driver for sentence on his sixth conviction for driving with excess breath or blood alcohol was upheld on appeal. Mr Keats sought to distinguish that case on the basis that the circumstances there were more serious. The appellant’s driving had resulted in a collision causing damage to another vehicle, a higher breath alcohol level (901…

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 Keats v Police

Details

AGLC: Keats v Police [2014] NZHC 2224
Case: [2014] NZHC 2224
Decision Date: 12 September 2014

CaseChat Overview and Summary

Nigel Anthony Keats appeals against the sentence of 6 months community detention, 100 hours of community work, 9 months of supervision, and a 15-month disqualification imposed on him for a charge of driving with excess breath alcohol in its aggravated form, being his third or subsequent offence. The appeal does not challenge the length of the supervision period or the disqualification period. Instead, the appeal argues that the sentencing judge erred in not crediting the appellant for his early guilty plea and the support provided by his employer when imposing the periods of community detention and community work.

The legal issue in this appeal is whether the sentencing judge erred in not applying mitigating factors when imposing a community-based sentence. The appellant argued that the sentencing judge should have deducted time from the sentence for his early guilty plea and the support from his employer. The Crown argued that the sentence was appropriate given the appellant's high breath alcohol level and his pattern of previous offending.

The Court found that the sentencing judge did not err in imposing the sentence. The judge had recognised the mitigating factors of the appellant's guilty plea and the support from his employer, and these factors had been taken into account in the sentencing decision. The Court noted that a guilty plea could be recognised by imposing a different type of sentence rather than by a percentage reduction. The Court also found that the sentence was within the range available to the sentencing judge, and that the mitigating factors likely prevented the appellant from being imprisoned. The appeal was dismissed.

The Court did not make any orders as the appeal was dismissed. The sentence of 6 months community detention, 100 hours of community work, 9 months of supervision, and a 15-month disqualification imposed on the appellant stands.

Orders