Matthias v Police - [2012] NZHC 2854

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-000284 [2012] NZHC 2854

BETWEEN PAUL ALEXANDER MATTHIAS Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 29 October 2012

Appearances: A J Beach for Appellant
S McMullan for Respondent

Judgment: 30 October 2012

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 30 October 2012 at 4:40 pm
pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date………………………

Solicitors: Meredith Connell, P O Box 2213, Auckland 1143
Fax: (09) 336-7629 – S McMullan

Counsel: A J Beach, P O Box 121161, Henderson, Auckland 0650
Fax: (09) 368-5512 – Email: tonyjohnbeach@xtra.co.nz

MATTHIAS V NZ POLICE HC AK CRI-2012-404-000284 [30 October 2012]

Introduction

[1] On 29 January 2011 Police observed the appellant, Paul Alexander Matthias, swerving from side to side on Moire Road, West Harbour. His blood alcohol level was 225 milligrams per 100 millilitres of blood (the legal limit being 80). Mr Matthias entered a not guilty plea and was bailed on conditions that included not consuming alcohol. On 15 September 2011 a member of the public observed Mr Matthias driving and was concerned enough to call the Police. On that occasion Mr Matthias had a breath alcohol reading of 524 (the legal limit being 400).

[2] On 10 August 2012 Judge G A Fraser sentenced Mr Matthias to a total of 12- and-a-half months’ imprisonment on the excess blood alcohol (third and subsequent) and excess breath alcohol (third and subsequent) charges, as well as on charges of failing to answer District Court bail, possession of cannabis and possession of a pipe for smoking cannabis dating back to November 2010. The sentence was made up as follows:

(a) Driving with excess blood alcohol (third or subsequent) on 29 January

2011 – nine months;

(b) Driving with excess breath alcohol (third or subsequent) on 15

September 2011 – three-and-a-half months cumulative with the excess blood alcohol sentence;

(c) Failing to answer District Court bail – one month concurrent with the excess blood alcohol sentence;

(d)Possession of cannabis – one month concurrent with the excess blood alcohol sentence;

(e) Possession of a pipe for the purpose of consuming cannabis – one month concurrent with the excess blood alcohol sentence.

[3] Mr Beach, for Mr Matthias, submitted that the sentence was manifestly excessive as a result of too high a starting point being taken on the excess blood alcohol charge, inadequate credit given for efforts at rehabilitation and too low a discount for the guilty pleas (which were entered at the status hearing for the excess blood alcohol offence and at an appearance for breach of bail for the excess breath alcohol offence).

[4] Mr Beach also submitted that the sentences of one month were manifestly excessive but since they could make no difference to the end result I do not consider them further.

[5] Mr Beach submitted, further, that the Judge erred in not considering home detention. However, the most recent pre-sentence report before the Judge at sentencing recommended…

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: [2012] NZHC 2854
Decision Date: 30 October 2012

CaseChat Overview and Summary

In the case of Matthias v Police, the appellant, Paul Alexander Matthias, appealed against his sentence of 12-and-a-half months' imprisonment, imposed for multiple charges including excess blood alcohol, excess breath alcohol, failing to answer District Court bail, and possession of cannabis. Matthias had pleaded not guilty and was bailed on conditions that included not consuming alcohol. However, he was subsequently observed driving while over the legal alcohol limit on two occasions. Matthias argued that the sentence was manifestly excessive due to the starting point for the excess blood alcohol charge being too high, insufficient credit being given for his rehabilitation efforts, and an inadequate discount for his guilty pleas.

The court considered the arguments made by Matthias's counsel, who submitted that a starting point of six to nine months would have been more appropriate for the excess blood alcohol charge. The court agreed that a starting point of seven months would have been appropriate, acknowledging that 14 months was outside the range indicated by similar cases. Despite Matthias's efforts at rehabilitation, the court found that his efforts were insufficient to address his problems. The court also noted that while the discount for the guilty plea could have been higher, it was still within the range available and a higher discount would not have materially affected the end result.

The court concluded that although the starting point taken by the Judge on the excess blood alcohol charge was too high, the end result was well within the range available, given the significant nature of the excess breath alcohol offence. The court found no basis on which to interfere with the ultimate sentence imposed and dismissed the appeal.

Orders