Marx v Police - [2013] NZHC 2401

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2013-419-0040 [2013] NZHC 2401

BETWEEN
TIMOTHY JOHN MARX

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

10 September 2013

Appearances:

C D Bean for Appellant

J M O'Sullivan for Respondent

Judgment:

18 September 2013

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 18 September 2013 at 11 am pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date: ...................................

Solicitors: Almao Douch, Crown Solicitor, Hamilton Counsel: C D Bean, Hamilton

MARX v POLICE [2013] NZHC 2401 [18 September 2013]

[1] The Appellant appeals against sentence imposed on him on 4 June 2013 by Judge M L S F Burnett in the District Court in Hamilton.1

[2] The Appellant was for sentence on one charge of driving with excess blood alcohol (third or subsequent offence).2 The Judge sentenced the Appellant to a term of imprisonment of 13 and a ½ months. The Judge refused to order a sentence of home detention, alternatively to allow the Appellant leave to apply for home detention. The Judge also imposed standard and special release conditions for 6 months following release, disqualified the Appellant from driving for 3 and a ½
years from the date of sentence and made an order for confiscation of the Appellant’s motor vehicle.3

[3] The maximum term of imprisonment for an offence pursuant to s 56(2) Land Transport Act 1998 (“Act”) is 2 years. The Court is also required to order that the offender be disqualified from holding or obtaining a driver licence for more than 1 year.4 Other provisions of the Act may also be relevant depending on the circumstances in which the offence was committed, including in this case I believe s 65B of the Act.

[4] The appeal is brought on the ground that the sentence was manifestly excessive. In particular, the Appellant submits that the Judge took too high a starting point and that the term of disqualification was excessive. The Appellant also submits that the Judge erred in refusing to impose a sentence of home detention in lieu of imprisonment. The Crown opposes the appeal.

Background

[5] The offending occurred on Sunday, 20 January 2013 at about 1 pm. The Appellant was stopped at a checkpoint on State Highway 2. He recorded a reading of 155 milligrams of alcohol per 100 millilitres of blood. The maximum permissible

1 Police v Marx DC Hamilton CRI-2013-075-149, 4 June 2013.
2 Land Transport Act 1998, s 56(2).
3 In error, the Appellant’s criminal and traffic history records the period of disqualification as 3 years.
4 Ibid, s 56(4).

is 80 milligrams. Accordingly, the Appellant’s reading was almost twice the permitted maximum. The Appellant pleaded guilty at the first opportunity.

[6] At the time of the offending the Appellant was 46 years old. His criminal and traffic history runs to seven pages, beginning in 1985. The list of convictions includes another four for driving with excess blood or breath alcohol (“EBA”), committed in 1986, 1989, 2002…

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 Marx v Police

Details

AGLC: Marx v Police [2013] NZHC 2401
Case: [2013] NZHC 2401
Decision Date: 18 September 2013

CaseChat Overview and Summary

In the High Court of New Zealand, Timothy John Marx appealed against the sentence imposed on him by the District Court in Hamilton. Marx was sentenced to 13 and a half months imprisonment for driving with excess blood alcohol, his third or subsequent offence, along with a three and a half year driving disqualification, standard and special release conditions for 6 months post-release, and confiscation of his motor vehicle. The appeal contested the sentence's excessiveness, particularly the starting point and the length of the disqualification period, as well as the refusal to impose a sentence of home detention. The Crown opposed the appeal. The High Court found that the sentence was indeed excessive due to double counting in the uplift for previous convictions, and that the term of disqualification needed reconsideration in light of the potential applicability of section 65B of the Land Transport Act 1998. The Court reduced the imprisonment term to 11 months and remitted the disqualification period back to the District Court for reconsideration with submissions from counsel.

Justice Peters reasoned that while the District Court Judge's starting point of 12 months imprisonment was within the appropriate range given Marx's extensive prior convictions, the additional 6-month uplift for the same prior convictions was improper as it constituted double counting. The Court also found no error in refusing home detention, considering the Appellant's history of non-deterrent sentences and the public safety concern. However, the disqualification period was set aside as the applicability of section 65B of the Act, which mandates a zero alcohol requirement for repeat offences involving alcohol, had not been considered by the District Court. The matter was remitted for reconsideration with submissions from counsel on the appropriate period of disqualification, with reference to relevant authorities. All other orders of the District Court were to continue in effect.

Orders