Martin v Police - [2019] NZHC 353

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2018-485-76

[2019] NZHC 353

BETWEEN
DAVID KEITH MARTIN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 26 February 2019

Counsel:

P H Surridge for Appellant

E M Light and F A M Manning for Respondent

Judgment:

6 March 2019

JUDGMENT OF THOMAS J

[1] At 68 years old, and with five prior convictions for driving with excess breath/blood alcohol incurred between 1981 and 1996, in October 2018 David Martin appeared for sentence on charges of driving with excess breath alcohol (third or subsequent)1 (the EBA charge) and careless driving.2 He was sentenced in the Wellington District Court to four months’ community detention, six months’ supervision and an alcohol interlock sentence on the EBA charge, and convicted and discharged on the careless driving charge.3 Mr Martin appeals the sentence on the EBA charge on the ground it was manifestly excessive in the circumstances.

1      Land Transport Act 1998, ss 56(1) and 56(4); maximum penalty of two years’ imprisonment, a fine of $6000 and a mandatory disqualification from holding a driver licence for more than one year.
2      Section 37(1); maximum penalty of a $3000 fine and a period of disqualification from holding a driver licence.
3      Police v Martin [2018] NZDC 23771.

MARTIN v NEW ZEALAND POLICE [2019] NZHC 353 [6 March 2019]

Factual background

Summary of facts

[2] On 16 May 2018, Mr Martin had been drinking at a bar in Brooklyn, Wellington.

[3] At about 10.41 pm, Mr Martin drove his car along Mills Road where roadworks were being undertaken. One lane only was operating on a section of the road and the flow of traffic was being controlled by stop/go traffic staff. The road was wet from earlier rain but well lit.

[4] The summary of facts, to which Mr Martin pleaded guilty but now disputes, says he was “travelling at speed and swerving all over the road”. Mr Martin neared the stop/go operator, who was holding a sign signalling that Mr Martin was required to stop. Mr Martin failed to stop, forcing the stop/go operator to “[jump] out of the way to avoid being struck by [Mr Martin’s] vehicle”. Mr Martin then ran over some road cones, drove into the road works site, clipped one vehicle and crashed into the side of another. The stop/go operator called police.

[5] The two cars were “moderately” damaged but no-one was injured. Mr Martin’s evidential breath test gave a result of 846 micrograms of alcohol per litre of breath.

[6] Mr Martin told the police that a car coming towards him on the opposite side of the road meant he was forced to move over to the left, where he hit the parked car.

Mr Martin’s contention

[7] In his submissions, Mr Martin characterised the events differently. He said it was “a wet raining night”. He did not consider he was unfit to drive and, had he done so, he would have taken…

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

Case: [2019] NZHC 353
Decision Date: 6 March 2019

CaseChat Overview and Summary

David Martin appeals his sentence for driving with excess breath alcohol and careless driving, arguing it was manifestly excessive. The sentencing judge imposed four months of community detention, six months of supervision, and an alcohol interlock sentence. Martin contends the sentence was excessive and that the sentencing judge failed to properly appreciate the facts and the age of his prior convictions. The court held that the sentencing judge did not commit an error in appreciating the facts or the age of the prior convictions. The sentencing judge considered the seriousness of the offending, Martin's high breath alcohol level, and his five prior convictions. The court concluded that the sentence was within the available range and did not manifest an error. The appeal was dismissed.

Orders