[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…

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 McLeish v Police

Details

AGLC: McLeish v Police [2015] NZHC 1610
Case: [2015] NZHC 1610
Decision Date: 9 July 2015

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