IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA MĀWHERA ROHE
CRI-2023-418-01
[2023] NZHC 1248
BETWEEN BRIAN RALPH LEWIS
Appellant
AND
THE KING
Respondent
Hearing: 16 May 2023 Appearances:
A M S Williams for Appellant G E R Alloway for Respondent
Judgment:
25 May 2023
Reissued:
12 July 2023
JUDGMENT OF EATON J
This judgment was delivered by me on 25 May 2023 at 3.30 pm
Registrar/Deputy Registrar Date:
LEWIS v R [2023] NZHC 1248 [25 May 2023]
Introduction
[1] On 28 February 2023, Brian Ralph Lewis was sentenced by Judge Couch to three years and two months’ imprisonment1 on one charge of driving with excess blood alcohol causing death2 and two charges of driving with excess blood alcohol causing injury.3 Mr Lewis appeals his sentence on the grounds the sentence was manifestly excessive.
Facts
[2] On the evening of 30 April 2022, Mr Lewis was driving toward Greymouth in a 100 kilometre per hour zone. He drove across the Arnold Valley River Bridge, then lost control of his vehicle and crossed the centre line. He collided with an oncoming vehicle driven by Ms Kathrene Sexton. Two young persons (D and K) were passengers in the vehicle. Ms Sexton was fatally injured and died at the scene. Both young persons were injured, one critically. Mr Lewis was seriously injured.
[3] A blood specimen was taken from Mr Lewis revealing a blood alcohol level of 183 milligrams of alcohol per 100 millilitres of blood, more than three times the legal limit.
Previous sentence indication
[4] On 9 November 2022, Judge Couch gave Mr Lewis a sentence indication. The indication was a starting point of three years and six months’ imprisonment with an uplift of 15 per cent to reflect Mr Lewis’s criminal history and a credit of 20 per cent for a guilty plea. An end point of three years and four months’ imprisonment was indicated together with a disqualification from driving. At the sentence indication, Judge Couch stressed that the indication was subject to refinement at sentencing “after more information is available”.4 The Judge also said the indication was subject to reduction to reflect mitigating factors that may emerge at sentencing.
1 R v Lewis [2022] NZDC 3815.
2 Land Transport Act 1998, ss 61(1)(b), 61(3AA) & 61(3A); maximum penalty 10 years’ imprisonment.
3 Sections 61(1)(b) & 61(3A); maximum penalty five years’ imprisonment.
4 R v Lewis CRI-2022-018-000309 at [19].
[5] The Judge referred in some detail to a victim impact statement from K and to the serious emotional harm caused to many family members as a consequence of the death of Ms Sexton. He recorded that he had not been provided with any details of the injuries suffered by D. The Judge, nevertheless, proceeded on the broad inference those injuries were serious. The Judge observed that the injuries to D were an aspect of the facts that would need to be clarified for sentencing “and may affect the final outcome”.
[6] Mr Lewis…
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CaseChat Overview and Summary
The court found that the starting point of three years and six months' imprisonment was within range but leaned towards the higher end of the scale. The main issue was the additional 10% uplift applied at sentencing to reflect the additional victim impact statements. The court concluded that the Judge did not properly articulate why the consequences of the offending were considered significantly greater than appreciated at the sentence indication hearing, leading to the risk of being swayed by sympathy for the victims. The court also found that the uplift of 10% applied at sentencing led to a global starting point of three years and 10 months' imprisonment, which was too high. The court substituted the sentence with two years and nine months' imprisonment.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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