McLennan v Police - [2018] NZHC 320

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2018-412-000001

[2018] NZHC 320

BETWEEN
JAMIE GREGORY MCLENNAN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 2 March 2018

Appearances:

M Scally for Appellant C Ure for Respondent

Judgment:

5 March 2018

JUDGMENT OF GENDALL J

[1] On 20 December 2017, following guilty pleas the appellant was sentenced to 18 months’ imprisonment for two charges of reckless driving causing injury and one charge of failing to stop following an accident to ascertain injury. The appellant appeals this sentence on the basis that he should have been sentenced to home detention rather than imprisonment.

Facts

[2] The charges in question related to two separate driving events. The first occurred around 7.40 am on 24 June 2016 when the appellant was driving near Omakau. As he crested the brow of a hill, he struck a vehicle travelling in the opposite direction. Both vehicles suffered minor damage and the other vehicle pulled over. The appellant did not stop. This resulted in the charge of failing to stop following an accident to ascertain injury.

MCLENNAN v NEW ZEALAND POLICE [2018] NZHC 320 [5 March 2018]

[3] The second occurred around 11.50 pm on 14 October 2016, when the appellant was driving a vehicle up the overbridge on Ward St, Dunedin. The overbridge is in the shape of an H and in a 50 kilometre per hour zone. The appellant had one passenger in his vehicle. The traffic was light and the road dry.

[4] As he approached the moderate right hand bend off the Ward Street bridge, the appellant accelerated heavily and, while doing so, turned his vehicle to the right and then quickly to the left. This put the vehicle sideways as he drove down the opposite side of the bridge. As he rounded the corner, he continued to accelerate, causing his vehicle to lose traction, skid and “drift” around the corner at approximately 54 kilometres per hour. At this point, the appellant’s vehicle crossed the centre line and collided head on with another vehicle.

[5] The crash resulted in serious physical injuries and on-going emotional consequences to two young women who were passengers in the other car. The first victim received a broken back, a hairline fracture to her cheekbone, bruising about her face and had to have some of her small intestine removed. The second victim required an operation to repair her bowel which was split open by the crash. She also received bruising throughout her body. Both cars were written off. All this resulted in the two charges the appellant faced of reckless driving causing injury.

District Court decision

[6] In his decision in the District Court, Judge Flatley highlighted the appellant’s relevant history of offending, which included two charges for careless driving and one for reckless driving. In discussing the probation report, Judge Flatley noted that the appellant had told the report writer that he was tired at the time, fell asleep at…

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.

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Details

Case: [2018] NZHC 320
Decision Date: 5 March 2018

CaseChat Overview and Summary

In the High Court of New Zealand, Jamie Gregory McLennan appealed against his sentence for two charges of reckless driving causing injury and one charge of failing to stop following an accident to ascertain injury. The appeal was based on the argument that he should have been sentenced to home detention instead of imprisonment. The District Court had sentenced McLennan to 18 months' imprisonment, taking into account the seriousness of the harm caused, the appellant's intentional driving actions, the presence of two charges, and the appellant's history of offending.

The appeal raised the issue of whether the sentencing Judge had erred in not imposing a sentence of home detention, given the principle that the least restrictive sentence appropriate must be imposed. The Court of Appeal had articulated the test in an appeal against a refusal to grant home detention as being the exercise of a fettered discretion, with appellate review focusing on the identification of error, if any, in the court below. The Court considered the submissions from both parties and found that the sentencing Judge had properly considered the issue of home detention and concluded that a sentence other than imprisonment was inadequate to meet the proper purposes of sentencing in this case. The appellant's culpability was of such an extent that it attracted a high level of denunciation and deterrence. Refusing to impose home detention was therefore available at the sentencing Judge's discretion and it was appropriate in this case.

The appeal was dismissed, and the sentence of 18 months' imprisonment was upheld.

Orders