Martin v Police - [2016] NZHC 989

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI 2016-443-11 [2016] NZHC 989

BETWEEN
WAYNE MARTIN

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 11 May 2016

Counsel:

M S Boyd for Appellant
J E Bourke for Respondent

Judgment:

16 May 2016

JUDGMENT OF BROWN J

Background

[1] At 2.30 am on Saturday, 24 October 2015 the appellant was apprehended by

Police while driving on Mangorei Road, New Plymouth with a blood alcohol level of

148 milligrams of alcohol per 100 millilitres of blood.

[2] Less than two months later on 10 December 2015 the defendant drove a motor vehicle on North Street, Waitara with a blood alcohol reading of
151 milligrams of alcohol per 100 millilitres of blood.

[3] The appellant had six previous convictions relating to alcohol impaired or drug impaired driving. Consequently on both instances he was charged with an offence of driving with excess blood alcohol on third or subsequent occasion under s 56(2) and (4) of the Land Transport Act 1998. The maximum penalty for a contravention of that section is imprisonment for a term not exceeding two years or a fine not exceeding $6,000 and disqualification from holding or obtaining a driver
licence for more than one year.

MARTIN v NZ POLICE [2016] NZHC 989 [16 May 2016]

Sentencing

[4] On 9 March 2016 in the District Court at New Plymouth, Judge C D Sygrove sentenced the appellant to six months home detention on each charge concurrently.1
The appellant was also disqualified from holding or obtaining a driver licence for

12 months and one day and ordered to pay medical expenses and an analyst fee.

[5] The route to the sentence of six months home detention is apparent from the following passage from the sentencing notes of Judge Sygrove:

[6] You seem to think that home detention is not justified but you do not expect to get off lightly. As the police have pointed out, you have six previous convictions for drink-driving and when I consider the Clotworthy v Police (2003) 20 CRNZ 439 (HC) factors, you have two drink-driving matters before the Court, the length of time that you had a previous conviction is substantial and I take that into account.

[7] The fact that you have two drink-driving convictions within a short space of time is an aggravating factor. At the time you were not forbidden from driving so I do not take into account, but those factors when I look at the case of Samson v Police [2015] NZHC
748 17 April 2015, Whata J indicate to me that a starting point of
16 months’ imprisonment is appropriate.

[8] I give you fill discount according to R v Hessell [2010] 2 NZLR 298; (2009) 24 CRNZ 612 (CA) which results in a penalty of 12 months’ imprisonment and I am prepared to give you home detention. I note in the case of Tangipo v Police [2015] NZDC 11384, a case involving my brother Judge Roberts, that he refused to…

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: [2016] NZHC 989
Decision Date: 16 May 2016

CaseChat Overview and Summary

Wayne Martin was appealing a sentence imposed on him by Judge Sygrove in the District Court at New Plymouth, who sentenced him to six months home detention for two charges of driving with excess blood alcohol on third or subsequent occasion. Martin was claiming that the sentence was manifestly excessive. The legal issues before the court were whether the Judge Sygrove erred in placing undue weight on the recommendation in the pre-sentence report, failing to correctly analyse the gravity of the offending pursuant to Clotworthy v Police, and failing to impose the least restrictive outcome appropriate in accordance with the purposes of sentencing. The court held that Judge Sygrove did not err in his sentencing, as he took into account the appellant's previous convictions and the aggravating factors of the current offending. The court found that the sentence imposed was not manifestly excessive and dismissed the appeal. The final orders of the court were that the appeal be dismissed and the sentence imposed by Judge Sygrove be upheld.

Orders