May v Police - [2012] NZHC 624

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2011-443-000004 [2012] NZHC 624

BETWEEN DANIEL JASON MAY Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 2 April 2012

Counsel: J C Hannam for Appellant
J M Marinovich for Respondent

Judgment: 2 April 2012

ORAL JUDGMENT OF COLLINS J

Introduction

[1] The appellant appeals the length of the prison sentences imposed by the District Court in New Plymouth on 20 February 2012 in relation to the following offences:

(1) Three charges of driving with excess blood alcohol causing injury on

8 October 2011.

(2) One charge of driving whilst disqualified on a third or more occasion.

This offence also occurred on 8 October 2011.

(3)Driving with excess breath alcohol on a third or more occasion. This offence occurred on 26 November 2011.

(4)Driving while disqualified on a third or more occasion. This offence also occurred on 26 November 2011.

MAY V NEW ZEALAND POLICE HC NWP CRI-2011-443-000004 [2 April 2012]

[2] The appellant was sentenced to a total period of imprisonment of three years and nine months in relation to these offences. The minimum non-parole period of two-thirds of the sentence was imposed on the three charges of driving with excess blood alcohol causing injury. The appellant was disqualified from driving for a total period of three years.

Background

[3] On 8 October 2011 the appellant was driving a BMW north bound on South

Road, Oakura. He had two associates in the car. They had all been drinking.

[4] The appellant was driving at grossly excessive speed. His two passengers observed that the appellant was driving at 160 kmph. They told the appellant to slow down. He did not respond.

[5] At a point near the Oakura Pony Club the vehicle driven by the appellant crashed into the back of a motor vehicle being driven by Mr Poole. As a result of the speed at which the appellant was driving, the BMW moved into the right hand lane and crashed into a second vehicle driven by Mrs Moyle. After that collision, the BMW again collided with the vehicle being driven by Mr Poole.

[6] As a result of this driving the appellant, his co-passengers and Mrs Moyle suffered the following injuries:

(1) One of the appellant’s associates received a large laceration to the top

of his right hand, severing three of his tendons.

(2)The second of the appellant’s associates suffered a badly dislocated shoulder. He required surgery to re-attach the tendons to the bone. He spent several nights in hospital.

(3)Mrs Moyle was very severely injured. She was hospitalised for 10 days, six of which were in the Intensive Care Unit. Mrs Moyle underwent extensive surgery which included the extraction of 1.2

metres of her small intestine. She also received a fractured sternum and soft tissue trauma to her chest.

(4)The appellant also received serious injuries. Those injuries included seven breaks to his right leg and multiple fractures to one of his knees.

[7] The accident caused by the appellant’s driving resulted…

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 May v Police

Details

AGLC: May v Police [2012] NZHC 624
Case: [2012] NZHC 624
Decision Date: 2 April 2012

CaseChat Overview and Summary

The appeal in this case concerns the sentence imposed by the District Court on Daniel Jason May, who was convicted of multiple driving-related offences. The appellant argued that the District Court erred in its calculation of the starting point for the sentences of the offences that occurred on 26 November 2011. He contended that the starting point was the maximum allowable by law and that the cumulative sentence did not adequately reflect the totality of his offending.

The court examined the District Court's sentencing notes and found that some confusion had arisen in the explanation of the sentence imposed. It agreed with the District Court's assessment of the seriousness of the offending on 8 October 2011, the appellant's previous convictions, and the need for a concurrent sentence for driving while disqualified on that date. The court also agreed that a cumulative sentence should be imposed for the offences on 26 November 2011, reflecting the seriousness of the offending and the appellant's status as a recidivist offender.

After recalculating the sentence, the court concluded that the appellant should be sentenced to a total period of imprisonment of three years. It considered both the individual offences and the appellant's overall culpability and found a total sentence of three years' imprisonment appropriate. The court upheld the minimum non-parole period and the disqualification sentences imposed by the District Court.

The appeal against the total sentence of three years and nine months was allowed. The sentence was replaced with a total of three years' imprisonment. The disqualification sentences and the order imposing a minimum non-parole period were upheld.

Orders