McKellow v Police HC Christchurch CIV 2010-409-152
[2010] NZHC 1625
•16 September 2010
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI 2010-409-000152
JOHN JAMES SPENCER MCKELLOW
Appellant
v
POLICE
Respondent
Hearing: 16 September 2010
Counsel: A McCormick for Appellant
C J Boshier for Respondent
Judgment: 16 September 2010
JUDGMENT OF FOGARTY J
[1] The appellant is a 30 year old man who accepts he is an alcoholic. He was apprehended driving a car from the Rangiora Hotel back to Amberley with alcohol in his system of a level of 911 micrograms of alcohol per litre of breath, more than double the legal limit.
[2] This was his third drink driving offence, the first being in 1997, and the second in May 2008. The second one had some mitigating features being occasioned by a domestic crisis. This offending had no mitigating features. We have an alcoholic driving a friend to the Rangiora Hotel, staying, and obviously drinking a
considerable amount of alcohol and then driving home.
MCKELLOW V POLICE HC CHCH CRI 2010-409-000152 16 September 2010
[3] The Judge sentenced him to four months imprisonment and eighteen months disqualification. The minimum statutory period of disqualification for such offending is 12 months. The argument was that 18 months was excessive and was based upon the recent Court of Appeal decision of R v Stone [2009] NZCA 539 where the judgment of the Court, given by Wild J, contains a helpful analysis of the trends and periods of disqualification imposed for recidivist offending. That would appear to indicate that a sentence above 15 months would be well out of line of offending. But the decision in Stone does not attempt to set a tariff. The facts of this case are indicative of the impossibility of doing that.
[4] The earlier offending in May 2008, as I have said, was occasioned by a domestic crisis and there the level of excess breath alcohol was 560 micrograms, rather than here of 911 micrograms. The Judge summed up the culpability of this offending in paragraph [4] of his decision:
[4] The drink driving charge is appalling. You have been apprehended driving with alcohol in your breath at the level of 911 micrograms of alcohol per litre of breath, in other words more than double the legal limit. You must have been scarcely able to walk, let alone drive a car and as such you were a lethal danger on the road to other people.
[5] It is plain that the rest of his reasoning was driven off that culpability. When he came to the period of imprisonment though he considered he was being lenient:
[8] I need to fix a starting point. I do so take into account that this is a repeat drink driving offence and obviously imprisonment is something that I have to bear in mind and I do. I bear in mind that your level was 911, more than double the legal limit and I therefore think that a starting point of some four months’ imprisonment would be extremely lenient in the circumstances given that the maximum penalty is two years’ imprisonment.
[6] He then increased that starting point of four months by one month on account of the breach of community work and after allowing for the full discount he took the sentence down to three months imprisonment. He then very briefly imposed a disqualification for 18 months from the date of sentence which means effectively
16½ months.
[7] Ms Boshier submitted that the sentence should be looked at as a package and that it is important to take into account the leniency that the Judge gave to the term
of imprisonment when forming a judgment as to whether or not the period of disqualification was excessive. She submitted, viewed as a package, it was not. I am convinced by that argument.
[8] Mr McCormick acknowledged quite appropriately that one does look at sentences as a package.
[9] For these reasons I am not satisfied that there has been any error in the Judge’s reasoning, nor that the disqualification period is excessive and therefore the appeal is dismissed.
Solicitors:
Brandts-Giesen McCormick, Rangiora, for Appellant
Raymond Donnelly & Co, Christchurch, for Respondent
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