Counsel: E Orlov and S Malavia for Appellant M D Downs for Respondent
Judgment: 14 September 2011 at 10.30 am
JUDGMENT OF THE COURT
A The appeal against sentence is allowed.
B The sentence of four months’ imprisonment is quashed.
C A sentence of five months’ home detention is imposed on each charge.
DThe sentence is imposed with the following special conditions, namely, that the appellant is:
(a)immediately upon release of this judgment, to remain at or travel directly to the address of 7 Delmont Close, East Tamaki and await the arrival of the Probation Officer and the representative from the monitoring company;
(b)to reside at the address of 7 Delmont Close, East Tamaki for the duration of the sentence;
(c)to abstain from the consumption of alcohol and illicit drugs as directed by a Probation Officer;
(d)to undertake any programme of counselling if directed by a Probation Officer.
This Court gave special leave to the appellant to appeal his sentence of four months’ imprisonment imposed on appeal in the High Court on two charges of driving with excess breath alcohol causing injury under s 61(1)(b) of the Land Transport Act 1998.[1] The question on which leave was granted was:
Whether at [55] of the judgment on appeal (Manikpersadh v NZ Police)[2] the High Court Judge correctly identified and applied the test on which an appellate Court will intervene in a sentencing judge’s decision to impose a sentence of imprisonment as opposed to home detention.
[2] Manikpersadh v New Zealand Police HC Auckland CRI 2010-404-252, 28 September 2010.
When the appellant failed to stop his car at a red light in February 2010, he collided with another vehicle. He was found to be driving with an excess breath alcohol level of 223 milligrams of alcohol per 100 millilitres of blood.
The appellant was 19 years of age at the time and a maximum allowable blood alcohol level was 30 milligrams. Two people were injured in the accident from the other car. One fractured her right ankle, had a serious cut to her right knee and a fractured left leg. The other passenger suffered a number of cuts to the face and a minor head injury.
In the District Court, Judge Everitt sentenced the appellant to six months’ imprisonment.[3] The Judge used as a starting point a sentence of 12 months’ imprisonment taking into account what he saw as very bad driving and a high level of intoxication. He reduced the start sentence by four months for the appellant’s early guilty plea and a further two months for his relative youth, his lack of previous convictions and his offer to pay reparation.
[3] New Zealand Police v Manikpersadh DC…
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.
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Details
AGLC
Manikpersadh v R [2011] NZCA 452
Case
[2011] NZCA 452
Decision Date
CaseChat Overview and Summary
The case of Manikpersadh v R involved an appeal by the appellant against his sentence of four months’ imprisonment imposed on two charges of driving with excess breath alcohol causing injury. The Court of Appeal allowed the appeal and quashed the original sentence, imposing a sentence of five months’ home detention instead. The appellant, Ashveer Manikpersadh, had collided with another vehicle while driving with a blood alcohol level far exceeding the legal limit, resulting in injuries to the occupants of the other car. The appellant was 19 years old at the time, with no previous convictions. The original sentence of imprisonment was reduced on appeal to reflect time spent on bail and reparation payments.
The central issue before the Court was whether the High Court judge correctly identified and applied the principles governing the choice between imprisonment and home detention. The Court found that the District Court judge had erred by focusing solely on deterrence when considering whether to impose a sentence of home detention. The High Court judge, while acknowledging the District Court judge's error, failed to adequately address this in her judgment. The Court of Appeal found that the High Court judge should have recognised the error and considered all relevant factors in determining the appropriate sentence.
The Court of Appeal considered the purposes and principles of sentencing, including deterrence, denunciation, rehabilitation, and the least restrictive outcome. The seriousness of the offence and the appellant's personal circumstances, such as his young age, lack of previous convictions, remorse, and efforts towards rehabilitation, were found to strongly favour a sentence of home detention. The Court determined that five months’ home detention, with specific conditions including residence at a specified address, abstention from alcohol and drugs, and participation in counselling, was appropriate. This sentence was deemed sufficient to achieve the purposes of sentencing while considering the appellant's personal circumstances and the need for rehabilitation and reintegration into society.