N v The Queen - [2019] NZHC 2083

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,

OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2019-463-58

[2019] NZHC 2083

BETWEEN
N

Appellant

AND

THE QUEEN

Respondent

Hearing: 22 August 2019

Counsel:

N Tahana for Appellant

A McConachy for Respondent

Judgment:

23 August 2019

JUDGMENT OF BREWER J

This judgment was delivered by me on 23 August 2019 at 11:30 am

Registrar/Deputy Registrar

Solicitors:
Kahui Legal (Rotorua) for Appellant Gordon Pilditch (Rotorua) for Respondent

N v R [2019] NZHC 2083 [23 August 2019]

Introduction

[1] Mr N pleaded guilty to one charge of causing death while in charge of a motor vehicle when his blood contained evidence of the use of methamphetamine.1 Judge Cooper sentenced Mr N to three years’ imprisonment.2 Mr N now appeals that sentence as being manifestly excessive.

Background

[2] On Sunday, 6 January 2019, at approximately 4:00 pm, Mr N was driving his motor vehicle on Broadlands Road, Reporoa. He was the only occupant.

[3] Mr N was driving erratically and dangerously. A witness saw his vehicle weave to the left onto the grass verge and then back to the right, crossing the centre line into the opposing lane. This occurred about three times. Another witness described Mr N’s driving as “moving all over the road, from one side to the other, completely in the opposite lane”.

[4] On the final occasion Mr N completely crossed the centre line into the opposing lane he collided head-on with a vehicle being driven by Mr Gladding. Mr Gladding died at the scene.

[5] Mr N’s blood was tested. His blood alcohol reading was 61 milligrams of alcohol per 100 millilitres of blood. His blood also contained methamphetamine and the active constituent of cannabis, tetrahydrocannabinol.

[6] Mr N said he had probably used methamphetamine and cannabis “one or two” evenings prior to the accident.

[7] Mr N was himself injured in the crash. He sustained injuries to his legs and spent about a month in hospital.

1 Land Transport Act 1998, s 61(2)(b).
2 R v [N] [2019] NZDC 12051.

[8] Mr N was 27 years old at the time and had been convicted on 4 May 2017 of driving with a breath alcohol level over 400 micrograms per litre of breath (his level was 748).

Sentencing

[9] The Judge reviewed the facts of the offending and the factors personal to Mr N. There was a psychologist’s report describing what the Judge called Mr N’s “fragile mental state”. He acknowledged Mr N feels an acute sense of guilt and remorse. The Judge analysed the factors going to the starting point as follows:

[11] In this case, the first factor that I take into account is the consumption of drugs and alcohol. There was evidence of both in your blood. Your statement to the police said that you did not feel sleepy when you left to drive…

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 N v The Queen

Details

AGLC: N v The Queen [2019] NZHC 2083
Case: [2019] NZHC 2083
Decision Date: 23 August 2019

CaseChat Overview and Summary

In the matter of N v The Queen, the appellant, Mr N, appealed against his sentence for causing death while in charge of a motor vehicle while his blood contained evidence of the use of methamphetamine. The appeal was dismissed by Brewer J in the High Court of New Zealand. Mr N had pleaded guilty to the charge and had been sentenced to three years’ imprisonment by Judge Cooper. The appeal was focused on whether the sentence was manifestly excessive.

The legal issues in the case involved whether the starting point for sentencing was correctly assessed by the Judge, whether the uplift for the appellant’s previous conviction was excessive, and whether the Judge had provided adequate credit for mitigating factors such as the appellant’s remorse, mental health, and the serious injuries he had sustained in the accident. The appellant’s counsel submitted that the starting point was too high and that the Judge had failed to provide adequate credit for mitigating factors.

Brewer J found that the Judge had correctly assessed the starting point for sentencing, taking into account the consumption of drugs and alcohol, the dangerous driving exhibited by the appellant, and the death of the victim. The Judge had also correctly assessed the uplift for the appellant’s previous conviction and had given adequate credit for mitigating factors. The Judge had recognised the appellant’s mental health issues and the risk of suicide, but had decided that a reduction in the sentence was not warranted. The Judge had also given a discount for the appellant’s remorse and early guilty plea, which was considered to be appropriate. The Judge had not given a separate discount for the injuries suffered by the appellant in the accident, but Brewer J found that this was not an error as the injuries did not make a sentence of imprisonment disproportionately severe.

In conclusion, Brewer J found that the Judge had not erred in his sentencing decision and that the sentence of three years’ imprisonment was a reasonable judicial response to the overall circumstances of the appellant’s offending. The appeal was dismissed.

Orders