Neho v Police - [2016] NZHC 1290

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2016-409-36 [2016] NZHC 1290

BETWEEN
SAM NEHO

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 8 June 2016

Appearances:

J Lucas for Appellant
N Pointer for Respondent

Judgment:

16 June 2016

JUDGMENT OF MANDER J

[1] The appellant, Mr Sam Neho, was the subject of an effective sentence of six months home detention and 150 hours community work.1 The sentence was imposed on the following charges:

(a) two charges of driving with excess breath/blood alcohol (in its aggravated form);

(b) dangerous driving;

(c) driving while suspended;

(d) unlawfully being in a building; and

(e) possession of an offensive weapon.

1 Police v Neho [2016] NZDC 5732.

NEHO v NEW ZEALAND POLICE [2016] NZHC 1290 [16 June 2016]

He was disqualified from driving for a finite period of one year as well as being disqualified indefinitely.

[2] Mr Neho appeals his sentence on the basis the District Court erred in imposing community work and that the commencement of the disqualification should have been backdated.

Background

Factual background

[3] On 12 April 2014, Mr Neho drove with excess breath alcohol in Nelson. His licence was suspended for 28 days. Eight days later he was apprehended driving his motor vehicle in Lewis Pass in breach of that suspension.

[4] On 19 December 2014, Mr Neho was arrested and charged with possession of a pistol, presenting a pistol, unlawfully being in a building, driving with excess blood alcohol, driving dangerously, and possession of an offensive weapon. Those charges arose out of an incident in Christchurch when Mr Neho, in an intoxicated state, confronted his neighbours over a perceived grievance. It was alleged he had brought a pistol, pointed it at his neighbours, and entered their house. He had driven away dangerously, running a stop sign. Mr Neho maintained he had possession of a bar not a pistol.

Procedural background

[5] Mr Neho was bailed to Timaru. He was subject to restrictive bail conditions, including, at least initially, a 24 hour curfew and prohibited from driving and consuming alcohol.

[6] The Nelson matters were transferred to Christchurch, and Mr Neho entered pleas of guilty. He had earlier intimated a guilty plea to the December driving with excess blood alcohol charge at a case review hearing. A pre-sentence report was prepared, however, his sentencing scheduled for June 2015 was postponed pending the outcome of the charges arising out of the December 2014 incident.

[7] In February 2016, Mr Neho’s trial proceeded in the Christchurch District Court. Part way through the hearing matters were resolved largely in Mr Neho’s favour. Charges of burglary, possession of a pistol and presenting a pistol were dismissed. The possession of an offensive weapon was amended to that of a steel bar, and he pleaded guilty to unlawfully being in a building and dangerous driving. An electronically monitored sentence was indicated.

Mr Neho’s health problems

[8] At that time a letter from Mr Neho’s doctor was presented to the Court. This advised that Mr…

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 Neho v Police

Details

AGLC: Neho v Police [2016] NZHC 1290
Case: [2016] NZHC 1290
Decision Date: 16 June 2016

CaseChat Overview and Summary

Sam Neho was sentenced by the Christchurch District Court to six months home detention and 150 hours of community work for two charges of driving with excess breath/blood alcohol (in its aggravated form), dangerous driving, driving while suspended, unlawfully being in a building, and possession of an offensive weapon. He was also disqualified from driving for a finite period of one year as well as being disqualified indefinitely. Mr Neho appealed the sentence on the basis that the District Court erred in imposing community work and that the commencement of the disqualification should have been backdated. The Court was required to consider whether the District Court erred in imposing community work and whether it had the power to backdate the commencement of the disqualification. The Court found that the District Court did err in imposing community work given Mr Neho's health problems. However, the Court did not accept Mr Neho's submission that the disqualification period could be backdated. The appeal was dismissed, and Mr Neho's sentence of six months home detention and 150 hours community work for the two aggravated drink-driving charges was quashed and an eight-month concurrent term of home detention was substituted on each charge. The post-detention conditions imposed by the District Court attach to that substituted sentence. The indefinite disqualifications imposed on each charge remain.

Solicitors: Public Defence Service, Christchurch; Raymond Donnelly & Co, Christchurch.

Orders