McLeish v Police

Case [2015] NZHC 1610


IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2015-409-000048 [2015] NZHC 1610

BETWEEN

MITCHELL DUDGEON MCLEISH

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 9 July 2015

Appearances:

A C Kelland for Appellant
C E Butchard for Respondent

Judgment:

9 July 2015

ORAL JUDGMENT OF GENDALL J

Outline

[1]      On 24 August 2013, Mr Mitchell McLeish was pulled over while driving.  It is  said  his  breath  smelled  strongly  of  alcohol  and  his  speech  was  slurred.    A screening test suggested a reading of over 400 mcg per litre of breath.  At the Police station, Mr McLeish refused to undergo either an evidential breath test or a blood test.  He was therefore charged with refusing to permit a blood specimen to be taken, in the aggravated form (third or subsequent).  This matter proceeded to a defended hearing in the District Court on 21 November 2014 and 4 December 2014, following which Judge Garland released his decision on 23 February 2015 finding Mr McLeish

guilty.1

[2]      On  23  February  2015,  the  same  day  that  Judge  Garland  released  his

Substantive McLeish Decision, Mr McLeish was charged with driving with excess

1      Police v McLeish [2015] NZDC 427 [Substantive McLeish Decision].   I note the date of the decision on the judgment is stated as 20 February 2015.   However, on the final page is a handwritten note stating: “Released by … [a District Court Registrar] on the 23 day of February

2015 …”.

MCLEISH v NEW ZEALAND POLICE [2015] NZHC 1610 [9 July 2015]

breath alcohol, with the proportion of alcohol in his breath exceeding 400 mcg/L in that it was 1002 mcg/L.  Mr McLeish entered a prompt guilty plea to this charge.

[3]      Mr McLeish then came before Judge Garland for sentencing on 17 April

2015,  where  he  was  sentenced  to  22  months’ imprisonment  on  both  charges.2

Mr McLeish now appeals his sentence on the sole basis that Judge Garland erred in declining to impose home detention instead of a short term of imprisonment.

District Court decision

[4]      Turning  now  to  the  District  Court  decision,  in  sentencing  Mr  McLeish, Judge Garland adopted a cumulative approach, overlaid with the requirement to have regard to the totality of the offending.   As to the purposes and principles of sentencing, Judge Garland observed:

[7]       In sentencing you I bear in mind the purposes and principles of sentencing set out in ss 7 and 8 of the Sentencing Act.  In particular it is my job to hold you accountable for your conduct.   It is my job to impose a sentence which will not only deter you from re-offending, but which will also act as a general deterrence.  In that way it is thought that the community may be protected.

[8]       The principles of sentencing I take into account are the gravity of your offending, the seriousness of the offences that you have committed, the need to impose on you a sentence which is generally consistent with the sentences imposed on other offenders for like offending, and finally…

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McLeish v Police [2015] NZHC 1610
Case
[2015] NZHC 1610
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CaseChat Overview and Summary

Mitchell Dudgeon McLeish appealed against his sentence, arguing that the District Court judge erred in declining to impose home detention instead of a short term of imprisonment. McLeish was found guilty of two charges: refusing to permit a blood specimen to be taken, in the aggravated form, and driving with excess breath alcohol. The District Court judge sentenced McLeish to 22 months' imprisonment on both charges. McLeish's counsel argued that Judge Garland failed to take into account relevant factors, including McLeish's motivation to address his longstanding alcohol addiction issues and his health and personal circumstances. The appeal court noted that the focus was not whether the appeal court would have sentenced McLeish differently to Judge Garland, but whether the sentence imposed on McLeish was within the range of available sentences. The appeal court concluded that while home detention is a viable option in cases such as this, McLeish's submissions did not surmount the threshold necessary for an appeal relating to the exercise of the discretion. The appeal was dismissed.

The court focused on the purposes and principles of sentencing, including the requirement to impose the least restrictive outcome appropriate in the circumstances. The court acknowledged that the sentencing judge was fully apprised of McLeish's problems with alcohol abuse and his efforts to treat himself. However, the sentencing judge considered that the efforts of McLeish were too little too late, and also questioned the sincerity of McLeish's efforts. The court noted that the sentencing judge placed considerable weight on the principles of deterrence and denunciation, as his Honour was entitled to do. The court concluded that the sentence imposed on McLeish was within the range of available sentences.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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