Noble v Police - [2012] NZHC 800

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2012-443-008 [2012] NZHC 800

BETWEEN PAUL FRANCIS NOBLE Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 27 April 2012

Counsel: K Pascoe for Appellant
S A Law for Respondent

Judgment: 27 April 2012

JUDGMENT OF BREWER J

SOLICITORS
Nicholsons (New Plymouth) for Appellant
C & M Legal (New Plymouth) for Respondent

NOBLE V POLICE HC NWP CRI-2012-443-008 [27 April 2012]

[1] On 13 February 2012 in the District Court at New Plymouth, Judge AC Roberts sentenced the appellant to eight months’ imprisonment.[1] The charge was driving with excess breath alcohol, having been convicted at least twice previously of that offence. In fact, this was the appellant’s fifth conviction for this offence and on this occasion his breath alcohol reading was 851 micrograms of alcohol per litre of breath. The legal limit is 400 micrograms of alcohol per litre of
breath.

[1] Police v Noble DC New Plymouth CRI-2011-043-003342, 13 February 2012.

[2] Mr Noble appeals his sentence. He contends that a sentence of imprisonment was manifestly excessive. His submission is that the District Court Judge was wrong not to impose a sentence of home detention.

[3] It is common ground that a person appearing for the fifth time for sentencing on a conviction for driving with excess breath alcohol might normally be expected to be sentenced to a term of imprisonment. In this case the key reason for the appeal is that the last time the appellant was convicted for driving with excess breath alcohol was in 2001. At that time he was sentenced to four months’ imprisonment, taking into account that he was on that occasion driving while disqualified. Therefore, there were more than 10 years between that conviction and the present conviction. The convictions prior to the penultimate one were entered in 1988, 1999 and 2000.

[4] Ms Pascoe for the appellant submits that the District Court Judge failed to adequately take into account the gap between this latest conviction and the previous one when considering the seriousness of the offence. Ms Pascoe submits that a sentence of home detention contains clearly recognised elements of denunciation and deterrence. The Court has an obligation to impose the least restrictive sentence appropriate and the District Court Judge failed to do that by dismissing too readily the prospect of home detention. In this case Ms Pascoe submits there are no public safety concerns that cannot be addressed adequately by a sentence of home detention.

[5] Ms Law for the respondent submits that the District Court Judge did take into account all of the factors which he should have done. She places particular emphasis

on the discretionary nature of the decision to impose or withhold a sentence of home detention. In this case she submits the protection of the public is paramount and the appellant’s lack of insight into his offending was a matter properly given weight by the District Court Judge.

[6] In my view, the District Court Judge certainly understood the competing…

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 Noble v Police

Details

AGLC: Noble v Police [2012] NZHC 800
Case: [2012] NZHC 800
Decision Date: 27 April 2012

CaseChat Overview and Summary

In the High Court of New Zealand, Paul Francis Noble appealed against his sentence of eight months' imprisonment for driving with excess breath alcohol, having been convicted at least twice previously of that offence. This was the appellant's fifth conviction for the offence and his breath alcohol reading was 851 micrograms of alcohol per litre of breath, more than twice the legal limit. The appeal was against the length of the sentence, which the appellant argued was manifestly excessive and that a sentence of home detention would have been more appropriate. The respondent argued that the District Court Judge had taken into account all the factors necessary in reaching the sentence and that protection of the public was paramount.

The court considered the appellant's lack of insight into the effect of alcohol on him and the accompanying lack of remorse. The court also considered that the appellant had enrolled in an alcohol counselling course as a result of being apprehended on this occasion but had shown little interest in completing it. The court further considered the appellant's other convictions which, in the court's opinion, did not justify an uplift in the starting point. The court concluded that a full credit of 25% was available, resulting in a final sentence of six months’ imprisonment.

The court allowed the appeal and substituted a sentence of six months’ imprisonment. The sentence of disqualification of 12 months and one day commencing on 13 February 2012 was to remain. The court quashed the sentence of eight months’ imprisonment and substituted a sentence of six months’ imprisonment.

Orders