Nixon v Police - [2024] NZHC 3308

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE

CRI-2024-476-21

[2024] NZHC 3308

IN THE MATTER of an appeal against sentence

BETWEEN

LACHLAN KENNETH NIXON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 7 November 2024

Appearances:

M L Bonniface for Appellant

C J Mitchelmore for Respondent

Judgment:

7 November 2024

ORAL JUDGMENT OF OSBORNE J

Introduction

[1] Lachlan Nixon (now aged 69) pleaded guilty to a charge of driving with excess breath alcohol (EBA),1 and a charge of driving while disqualified (third or subsequent).2 On 29 August 2024 he was sentenced by Judge C D Savage to six months’ home detention.

[2]Mr Nixon now appeals his sentence on the basis it was manifestly excessive.

1 Land Transport Act 1998, s 56(1) and 56(4). Maximum penalty: two years’ imprisonment or a fine not exceeding $6,000. The Court must order the person to be disqualified from holding or obtaining a driver licence for one year or more.
2 Land Transport Act 1998, s 32(1)(a) and 32(4). Maximum penalty: two years’ imprisonment or a fine not exceeding $6,000. The Court must order the person to be disqualified from holding or obtaining a driver licence for one year or more.

NIXON v NEW ZEALAND POLICE [2024] NZHC 3308 [7 November 2024]

Facts—the offending

[3] In June 2023, Mr Nixon was convicted of driving with EBA and driving while disqualified (third or subsequent). He was subsequently disqualified from driving for a further year. He remained disqualified at the time of the current offending.

[4] On 8 March 2024, Mr Nixon was driving a car in Waimate when he was stopped by police. He admitted to consuming alcohol. Breath testing procedures were subsequently carried out and Mr Nixon returned a result of 765 micrograms of alcohol per litre of breath.

[5]He was subsequently charged with the offences to which he has pleaded guilty.

Facts

Mr Nixon’s driving record

[6] Mr Nixon had eleven previous drink driving convictions, of which several related to offending while Mr Nixon was disqualified from driving.

Sentencing decision

[7] The Judge observed that a community-based sentence would be inappropriate given Mr Nixon has shown in the past he is unable to resist the temptation to drink and drive. The Judge identified his primary concerns in sentencing as being to deter Mr Nixon from reoffending and to send a message to the community that there will be not inconsequential restrictions on a person’s liberty if they repeatedly drink drive.

[8] The Judge viewed a sentence of community detention as an inadequate response to a twelfth drink driving offence. The Judge acknowledged the difficulties that flow from a sentence of home detention and the impact such would have on Mr Nixon’s ability to generate the income he needs to support himself. The Judge considered this was something Mr Nixon should have thought about before offending. The Judge said there was a very real possibility of Mr Nixon being sentenced to a term of imprisonment, but…

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: [2024] NZHC 3308
Decision Date: 7 November 2024

CaseChat Overview and Summary

Lachlan Nixon appeals against the sentence of six months’ home detention imposed for his twelfth conviction of driving with excess breath alcohol and driving while disqualified. The court was required to decide whether the sentence was manifestly excessive. The appeal is dismissed. The sentencing Judge was concerned with deterring Mr Nixon from reoffending and sending a message to the community. The Judge viewed a community-based sentence as inappropriate and considered the possibility of imprisonment but opted for six months’ home detention instead. The appeal was advanced on the basis the sentence was manifestly excessive when considering Mr Nixon’s personal circumstances and rehabilitative efforts. The court considered that a sentence of imprisonment would have been available to the sentencing Judge and was the least restrictive sentence available in the circumstances. The sentence of home detention was not manifestly excessive.

Orders