Le Marquand v Police

[2015] NZHC 3171

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2015-412-000034 [2015] NZHC 3171

BETWEEN

ALICE HARRIET DUNCAN

LE MARQUAND Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	Dealt with on the papers
Appearances:	S McMillan for Appellant R P Bates for Respondent
Judgment:	11 December 2015

JUDGMENT OF GENDALL J

[1]      Alice Harriet Duncan Le Marquand (Ms Le Marquand) pleaded guilty in the

District Court to one charge of driving with excess breath alcohol.   Her level was

559 micrograms of alcohol per litre of breath.  She was subsequently sentenced to a

fine of $300, six months’ disqualification and six months’ supervision.1

[2]      She now advances an appeal solely against the supervision component of that sentence, claiming it is manifestly excessive.  In a memorandum filed by the Crown, it was explained that the supervision component was imposed solely for the purpose of ensuring the defendant watched a one hour long video (the Waitaki Turn Around Programme).    However, the standard conditions would continue to apply notwithstanding that singular focus.   In these unique circumstances, the Crown submits the sentence here may properly be considered manifestly excessive.

[3]      There is ample authority for the proposition that a first, or even second, time drink  driving  offender  will  ordinarily  be  dealt  with  by  way  of  a  fine  and

1      New Zealand Police v Le Marquand [2015] NZDC 19939.

LE MARQUAND v NEW ZEALAND POLICE [2015] NZHC 3171 [11 December 2015]

disqualification.2   There is, of course, the scope for aggravating features to increase that  almost  presumptive position.    Further,  there is  an  obligation  on  sentencing judges to both impose the least restrictive sentence available in the circumstances and to only impose a sentence of supervision if it is satisfied that such a sentence would reduce the likelihood of further offending.3

[4] On the basis of the Crown concession, noted at [2] above, I would allow this appeal. But even on an independent assessment, it is apparent that a sentence of supervision was manifestly excessive. There are many factors driving this conclusion. The offence itself was not particularly bad. The level was low to moderate and there were no aggravating features of the offending.

[5]      In relation to Ms Le Marquand personally, it is clear that she is a bright young woman who has stumbled on a small blip.   She was fully cooperative, she pleaded guilty early, she has no previous convictions and there is no suggestion, let alone  evidence,  that  she  has  an  alcohol  problem.     She  additionally  appears remorseful, has multiple positive references and good familial support.

[6]      There was simply no need for the supervision order.  This is an entirely run of the mill first time drink driving offender with no aggravating features and multiple mitigating features.  A sentence of supervision was plainly not the least restrictive sentence.   Nor was supervision necessary to reduce the likelihood of further offending.

[7]      The  appeal  is  allowed.    The  sentence  of  supervision  is  quashed.    The remainder of the District Court judgment stands.

...................................................

Gendall J

Solicitors:

RP Bates, Dunedin

Polson McMillan, Dunedin

2      Doughty v Police [2015] NZHC 430 at [10]. See too Sherley v Police [2012] NZHC 1499 at [18]; Creegan v Police [2015] NZHC 1513; Murphy v Police [2014] NZHC 2835 at [35]–[36]; Lee v Police HC Christchurch CRI-2008-409-217, 12 February 2009.

3      Sentencing Act 2002, ss 8(f) and 46.