Nathan v Police - [2014] NZHC 3288

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2014-409-000123 [2014] NZHC 3288

BETWEEN
LEONARD TAUROA NATHAN

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 17 December 2014

Appearances:

R G Glover for Appellant
K B Bell for Respondent

Judgment:

17 December 2014

ORAL JUDGMENT OF GENDALL J

[1] On Friday 8 August 2014 Mr Leonard Nathan pulled into the forecourt of the BP service station in Riccarton where a police patrol vehicle was present at the time. After speaking to the police and acknowledging that he had been drinking, Mr Nathan subsequently underwent an evidential blood test, which yielded a result
of 116 milligrams of alcohol per 100 millilitres of blood.1 By way of explanation,

Mr Nathan said simply that he was giving his friend a ride home.

[2] After pleading guilty, Mr Nathan came before Judge Garland in the District Court for sentencing on 31 October 2014.2 A starting point of 12 months was adopted, uplifted by six months for past offending and the fact that this offence occurred whilst on bail. A full discount of four and a half months was then permitted for his guilty plea, resulting in an end sentence of 13.5 months imprisonment. In addition, Mr Nathan was disqualified from holding or obtaining a driver’s licence for
one year, one month (commencing 22 September 2015) along with:

1 An offence against the Land Transport Act 1998, s 56(2) and (4).
2 Police v Nathan DC Christchurch CRI-2014-009-8572, 31 October 2014.

NATHAN v NEW ZEALAND POLICE [2014] NZHC 3288 [17 December 2014]

(a) an order authorising Mr Nathan at the end of his disqualification period to apply for a zero alcohol licence;

(b)the imposition of standard release conditions until six months after his sentence end date;

(c) an order for confiscation of Mr Nathan’s vehicle (a 1996 Toyota with registration AUR198); and

(d)an order for reparation in the total sum of $230.56 for analyst and medical fees.

[3] Mr Nathan now appeals this sentence on the basis that the sentence imposed was manifestly excessive and that he should have been sentenced by the same Judge who sentenced him on 22 August 2014 for a drink driving offence that he committed on 5 February 2014.

Jurisdiction

[4] Mr Nathan is able to appeal the sentence imposed as of right.3 This Court, as first appeal Court,4 will only disturb the sentence appealed from if the appellant can establish that there was an error in the sentence and that a different sentence should be imposed.5 In a recent judgment the Court of Appeal has confirmed that the sentence appeal regime in the Criminal Procedure Act 2011 was not intended to signify departure from the position under the predecessor regimes in the Crimes Act
1961, s 385(3) and the Summary Proceedings Act 1957, s 121(3).6

Material before the Court

[5] The Department of Corrections provided an advice report which was before the District Court. It recorded that Mr Nathan is a serving prisoner, who received a
six month term of…

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 Nathan v Police

Details

AGLC: Nathan v Police [2014] NZHC 3288
Case: [2014] NZHC 3288
Decision Date: 17 December 2014

CaseChat Overview and Summary

Leonard Tauroa Nathan appeals against his sentence of 13.5 months imprisonment imposed by Judge Garland in the District Court on 31 October 2014. Mr Nathan had previously been sentenced by Judge Smith on 22 August 2014 for a drink-driving offence committed on 5 February 2014. Mr Nathan argues that the sentence imposed by Judge Garland is manifestly excessive and that he should have been sentenced by the same Judge who sentenced him on the earlier offence. The High Court was required to determine whether the sentence imposed by Judge Garland was manifestly excessive and whether it should have been imposed by Judge Smith instead.

The Court held that the sentence imposed by Judge Garland was not manifestly excessive. The Court noted that the February offence involved driving while nearly two and a half times over the limit, the second offence followed six months thereafter, the offending occurred while on bail, Mr Nathan has a substantial history for similar offending, and the justification for offending on this occasion was no more than expedition and convenience. The Court also noted that a total sentence of 16 months for the two offences is not manifestly excessive, though it could be correctly categorised as stern. The Court further held that there was nothing in the point that Judge Smith should have sentenced Mr Nathan on both charges.

The appeal is dismissed.

Orders