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…
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- N v The Queen [2019] NZHC 2083
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- [2019] NZHC 2083
- Decision Date
CaseChat Overview and Summary
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
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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