Lepper v Police HC Christchurch CRI 2010-409-151

[2010] NZHC 1491

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2010-409-000151

MATTHEW BERNARD LEPPER

Appellant

v

POLICE

Respondent

Hearing:         19 August 2010

Appearances: A M McCormick for Appellant

A R MacGougan for Respondent

Judgment:      19 August 2010

ORAL JUDGMENT OF HON. JUSTICE FRENCH

[1]      This is an appeal against sentence.

[2]      Following pleas of guilty the appellant was convicted in the District Court of driving with excess breath alcohol and driving while disqualified.  It represented his fifth conviction for driving with excess breath alcohol and his first conviction for driving while disqualified.

[3]      He was sentenced to a term of imprisonment of nine months on the drink driving  conviction  and  one  month  concurrent  on  the  driving  while  disqualified

conviction.

LEPPER V POLICE HC CHCH CRI-2010-409-000151  19 August 2010

[4]      Unfortunately, it is clear from the sentencing notes that the Judge has made an  arithmetical  mistake.    He  took  as  his starting point  a  term  of  nine  months’ imprisonment and uplifted that by three months, which he said took him to 13 months.  It should, of course, have been 12 months.  The appellant was entitled to a full third discount for early guilty pleas under R v Hessell [2010] 2 NZLR 298, and accordingly the correct end sentence should have been eight months, instead of nine.

[5]      Counsel for the respondent submits that a term of nine months’ imprisonment is not manifestly excessive and therefore, despite the mistake, the sentence should stand.

[6]      I have given that submission careful consideration.  However, in my view it would be wrong for this Court to allow an obvious error to remain.  In order to give effect to the Judge’s true intentions, I consider it is appropriate to allow the appeal.

[7]      The  appeal  is  accordingly  allowed.     The  sentence  of  nine  months’ imprisonment is quashed and replaced with a sentence of eight months’ imprisonment.

Solicitors:

Brandts Giesen McCormick, Rangiora

Crown Solicitor’s Office, Christchurch