Letham v Police - [2022] NZHC 1514

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2022-441-09

[2022] NZHC 1514

BETWEEN
BRODIE JAMES LETHAM

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 28 June 2022

Appearances:

J R Te Puke-Cowperthwaite for the Appellamt B L McKenzie for the Respondent

Judgment:

28 June 2022

ORAL JUDGMENT OF PALMER J

Solicitors
Public Defence Service, Napier Elvidge & Partners, Napier

LETHAM v NEW ZEALAND POLICE [2022] NZHC 1514 [28 June 2022]

What happened?

[1] Around 6.50 pm on 14 January 2022, Mr Brodie Letham, aged 36, was found asleep in the driver’s seat of his car on a road in Flaxmere, with the engine running. When Police managed to wake him, he admitted to having had a few drinks. His evidential breath test (EBT) gave a reading of 1,146 micrograms of alcohol per litre of breath, almost three times the legal limit of 400 micrograms. Around 2.45 pm on 19 February 2022, following up on complaints of erratic driving at excessive speeds, the Police administered another EBT to Mr Letham which gave a reading of 1,313 micrograms of alcohol per litre of breath. Mr Letham has three previous convictions for drink-driving, in 2004, 2008 and 2017. The 2017 offending involved a reading of 1,314 micrograms.

[2] On 29 March 2022, Judge P W Cooper in the District Court at Hastings sentenced Mr Letham for two charges of driving with excess breath alcohol for a third or subsequent offence.1 That is punishable by up to two years’ imprisonment or a
$6,000 fine. The Judge took 20 months’ imprisonment as the starting point, gave a 25 per cent discount for Mr Letham’s guilty plea and a further five per cent discount for a head injury Mr Letham had previously suffered that inhibits impulse control.2 On the basis of Mr Letham’s high alcohol readings, lack of insight, offending while on remand, and his previous history, the Judge did not think home detention was appropriate.3 So he sentenced Mr Letham to 14 months’ imprisonment, required him to undertake treatment for his alcohol issues, to undertake any counselling or programmes required by the probation officer and disqualified him from driving indefinitely. Mr Letham appeals.

Submissions

[3]Counsel for Mr Letham and the Crown both rely on Whata J’s judgment in

Samson v Police, which set out a schedule of starting points for such cases.4

1      Police v Leatham [2022] NZDC 5394.
2      At [7]–[8].
3 At [9].
4      Samson v Police [2015] NZHC 748.

[4] Ms Te Puke-Cowperthwaite, for Mr Letham, submits the Judge erred by setting the starting point too high, not providing sufficient discounts for rehabilitation, remorse and personal circumstances, not commuting the sentence to home detention and disqualifying Mr Letham indefinitely rather than imposing an alcohol interlock order. She submits a starting point of 12 months would have been appropriate, a discount of 10 per cent for voluntary engagement in rehabilitation programmes and a further 10 per cent for remorse was justified. She submits…

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 Letham v Police

Details

AGLC: Letham v Police [2022] NZHC 1514
Case: [2022] NZHC 1514
Decision Date: 28 June 2022

CaseChat Overview and Summary

In the High Court of New Zealand, Napier Registry, the case of Letham v Police was heard on 28 June 2022. Brodie James Letham, the appellant, appealed a decision made by the District Court regarding his sentencing for multiple drink-driving offences. The appellant was found guilty of driving with excess breath alcohol on two separate occasions, both of which occurred while he was on remand. The legal issues before the court included the appropriateness of the starting point for the sentence, the extent of any discounts that could be applied, the appropriateness of the chosen sentence, and the form of the driving disqualification. The court was required to determine whether the sentence was within the available range and if it was justified by the relevant sentencing principles.

The court found that the starting point of 20 months was within the range available to the judge, given the aggravating factors present in this case. The court also found that the discount applied by the judge was within the range available to him, based on the information before him. However, the court considered it was wrong not to convert the sentence of imprisonment to a sentence of home detention, as imprisonment was likely to hinder rather than help the appellant's rehabilitation. The court also accepted that the judge erred in not ordering an alcohol interlock sentence as an alternative to indefinite disqualification, as required by the Land Transport Act 1998.

The court quashed the sentence imposed by the District Court and substituted a sentence of seven months' home detention, with three months' credit for his imprisonment to date. The court also required the appellant to undertake treatment for his alcohol issues and to undertake any counselling or programmes required by the Probation Officer. The court further required the appellant to attend an assessment for alcohol and drug counselling and to attend and complete any counselling, treatment or programme as recommended by that assessment, as directed by and to the satisfaction of a Probation Officer. The court also imposed a period of disqualification from driving that began when the appellant was imprisoned and ends on his release, and an alcohol interlock sentence under the Land Transport Act 1998.

Orders