McCrae v Police - [2012] NZHC 2008

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI 2012-416-000009 [2012] NZHC 2008

BETWEEN JAY TEREMOANA MCCRAE Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 9 August 2012

Counsel: D K Nicoloso and A McIlroy for appellant
A Clarke for respondent

Judgment: 10 August 2012

RESERVED JUDGMENT OF DOBSON J

[1] The appellant (Mr McCrae) was sentenced in the District Court at Gisborne on 4 April 2012, to a term of 15 months’ imprisonment plus an indefinite disqualification from driving on one conviction of driving with excess breath alcohol (being his third or subsequent conviction for that offence), and one conviction for driving whilst disqualified. He wishes to argue that the sentence was manifestly excessive, and that the Judge ought to have substituted the sentence of imprisonment with one of home detention.

[2] The notice of appeal was filed out of time, and leave is accordingly required to proceed with it. Although Ms Nicoloso also appeared for him on sentencing, there was apparently no on-going retainer and Mr McCrae has had difficulty instructing her on an appeal. He initially made attempts to file an appeal on his own behalf.

[3] The Police did not oppose the grant of leave and I accordingly grant leave to have the appeal argued.

MCCRAE v NEW ZEALAND POLICE HC GIS CRI 2012-416-000009 [10 August 2012]

[4] The relevant offending occurred at about 6am on 13 November 2011, when Mr McCrae was stopped by the Police because of a concern that the vehicle he was driving had been reported stolen in Gisborne the night before. Mr McIlroy, who spoke to the submissions filed on behalf of Mr McCrae, explained that the vehicle belonged to Mr McCrae’s girlfriend and that an aspect of the domestic dispute that had occurred between them the previous evening and on the morning of his being apprehended was her reporting the vehicle as stolen. Apparently the complaint was dropped, and that context for his being stopped has no further relevance.

[5] When breathalysed, Mr McCrae provided a reading of 196 milligrams of alcohol, being twice the legal limit of 80 milligrams. He was, at the time, a disqualified driver. He told the Police that he had not intended to drive that morning, but had to remove himself from the domestic dispute before it escalated.

[6] This was Mr McCrae’s sixth conviction for driving with an excess blood or breath alcohol level, the last being in November 2010 for which he was sentenced to five months’ imprisonment and disqualified from driving for 18 months. The previous four convictions were entered between January 2006 and September 2008. The first two of these convictions were when he was under 20, but one of those involved his exceeding the level permitted for an adult driver.

[7] The sentencing Judge did not acknowledge any distinction between the forms of the previous convictions. I raised with counsel whether that amounted to an error. Mr Clarke submitted that had there been only three previous convictions, then it would have…

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 McCrae v Police

Details

AGLC: McCrae v Police [2012] NZHC 2008
Case: [2012] NZHC 2008
Decision Date: 10 August 2012

CaseChat Overview and Summary

The High Court of New Zealand was called upon to review the sentence of the appellant, Jay Teremoana McCrae, who had been sentenced to a term of 15 months' imprisonment plus an indefinite disqualification from driving. The appellant's conviction was for driving with excess breath alcohol, his third or subsequent conviction for that offence, and driving whilst disqualified. The primary legal issue was whether the sentence was manifestly excessive, and whether the sentencing judge should have substituted the sentence of imprisonment with one of home detention. The court was also required to determine whether the appeal should be allowed despite being filed out of time.

The court examined the aggravating factors of the case, including the high level of alcohol reading and the fact that Mr McCrae was driving whilst disqualified. The sentencing judge had considered the totality of Mr McCrae's offending and his poor record of breaching community work orders, and had rejected the plea for a community-based sentence. The court found that the starting point of 20 months' imprisonment was manifestly excessive, and substituted a sentence of 12 months' imprisonment. However, the court found that the sentencing judge had not acted on a wrong principle, taken into account an irrelevant consideration, or failed to take into account a relevant consideration when declining the plea for home detention.

The court allowed the appeal to the extent of reducing the term of imprisonment from 15 to 12 months. The order for disqualification of the licence remained unchanged.

Orders