Meares v Police - [2015] NZHC 2373

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2015-409-000089

CRI-2015-409-000090 [2015] NZHC 2373

BETWEEN
DANIEL MATTHEW OLLIVER

MEARES Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 29 September 2015

Appearances:

J Lucas for Appellant
K J Basire for Crown

Judgment:

30 September 2015

JUDGMENT OF DUNNINGHAM J

[1] Mr Meares appeals his sentence of 15 months’ imprisonment on the

following offences:

(a) drove with excess blood alcohol (third or subsequent); (b) careless driving;
(c) threatening to kill.

[2] On 26 June 2015, Mr Meares was sentenced on the first two offences to nine months’ imprisonment, three months’ disqualification and an alcohol interlock licence disqualification order.1 On 20 July 2015 a further sentence of six months’
imprisonment was imposed on the third charge.2

1 Police v Meares [2015] NZDC 11882.
2 Police v Meares [2015] NZDC 13759.

Grounds of appeal

[3] The grounds for appeal are that the sentencing Judge erred by failing to adjust the sentence to account for the totality principle. As a result, the end sentence was manifestly excessive. The appellant considers that in undertaking the sentencing exercise afresh, a reduced sentence in the vicinity of 12 months or less should be imposed.

Principles applying on appeal

[4] This is an appeal under s 244 and 250 of the Criminal Procedure Act 2011. The appeal must be allowed if I am satisfied that there was an error in the sentence imposed on conviction and that a different sentence should be imposed.

[5] It is accepted that where the sentence is “manifestly excessive”, that is an error supporting an appeal. In deciding whether the end sentence is manifestly excessive, I do not need to be concerned with how the end sentence was reached, but rather whether it is “in a range that can properly be justified by accepted sentencing principles”.3

Background facts

[6] The appellant is a recidivist offender. The excess breath alcohol charge was his ninth conviction for alcohol-related driving offences (six excess blood alcohol convictions, one conviction for being a person under 20 exceeding breath alcohol limit and two convictions for refusing an officer’s request for blood specimen). He has also been convicted on 10 charges of driving while disqualified.

[7] The offending committed on 31 August 2014 involved the appellant approaching a vehicle at speed on the Christchurch side of the Lyttelton tunnel. This vehicle was positioned to warn drivers of approaching road works. There were
workers at the main site. The speed limit was reduced to 30 kilometres per hour.

3 Larkin v Ministry of Social Development [2015] NZHC 680 at [26], citing Ripia v R [2011] NZCA 101 at [15].

[8] The appellant overtook this vehicle at speed, estimated at 80-90 kilometres per hour, causing the workmen to get out of their truck and seek refuge on the road verge as the appellant approached them. When the appellant slowed at the last minute, the workers attempted to speak to him. They could smell alcohol on his breath and he took off accelerating into the…

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: [2015] NZHC 2373
Decision Date: 30 September 2015

CaseChat Overview and Summary

The High Court of New Zealand heard an appeal by Daniel Matthew Olliver Meares against his sentence of 15 months' imprisonment for driving with excess blood alcohol, careless driving, and threatening to kill. The appellant argued that the sentencing judge had failed to adjust the sentence to account for the totality principle, resulting in a manifestly excessive sentence. The court was required to determine if the sentence was manifestly excessive and whether the totality principle was properly considered.

The court held that the appeal would be allowed if it was satisfied that there was an error in the sentence imposed and that a different sentence should be imposed. The court noted that where a sentence is manifestly excessive, that is an error supporting an appeal. The court found that the sentence for the driving offences was at the lower end of the scale, while the sentence for the threatening to kill charge, while at the higher end of the spectrum, withstood scrutiny when considered in isolation. The court concluded that the end sentence of 15 months reflected a fair sentence for the driving offences and a modest uplift for the separate offence of threatening to kill. The court found that the sentence did not breach the totality principle and dismissed the appeal.

The final orders of the court were that the appeal was dismissed.

Orders