[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…

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 Lewis v The King

Details

AGLC: Lewis v The King [2023] NZHC 1248
Case: [2023] NZHC 1248
Decision Date: 25 May 2023

CaseChat Overview and Summary

In the case of Lewis v The King, the High Court of New Zealand heard an appeal by Brian Ralph Lewis against his sentence for driving with excess blood alcohol causing death and injury. Lewis argued that the sentence, which was three years and two months' imprisonment, was manifestly excessive. The legal issues before the court were whether the starting point and the 10% uplift applied at sentencing were within range and whether the sentence was justified by the relevant sentencing principles.

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