Noble v Police - [2012] NZHC 1984

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI 2012-443-023 [2012] NZHC 1984

BETWEEN DAVID NOBLE Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 7 August 2012

Counsel: A Dallison for appellant
S A Law for respondent

Judgment: 8 August 2012

RESERVED JUDGMENT OF DOBSON J

[1] On 7 June 2012, the appellant (Mr Noble) was sentenced in the District Court at New Plymouth on one conviction for driving with excess breath alcohol, being his third or greater number of convictions for that offending. Judge A C Roberts sentenced Mr Noble to 18 months’ imprisonment, and he now appeals against that sentence on the bases that it was manifestly excessive and that the sentencing Judge was wrong to reject a sentence of home detention as the appropriate alternative to imprisonment.

[2] On behalf of Mr Noble, Ms Dallison casts the circumstances of the driving conduct in this offending as being “innocuous”. Mr Noble was stopped at about
9 o’clock in the evening at a random breath testing check, and found to have a breath alcohol level of 481, relative to the limit of 400, micrograms of alcohol per litre of breath. There had been nothing in Mr Noble’s driving to excite the attention of the Police, and his explanation was that he had miscalculated the amount of alcohol he thought he could legitimately drink before driving. I am somewhat sceptical that a
person who is obviously a seasoned drinker, and has in the past had real problems

NOBLE v NEW ZEALAND POLICE HC NWP CRI 2012-443-023 [8 August 2012]

with his alcohol consumption, could misjudge by what is arithmetically 17 per cent

the extent of “safe” drinking he could undertake.

[3] An important component in the relative seriousness of this offending is the extent of Mr Noble’s previous relevant convictions, and the sentences imposed on him for them. At the age of 57 he has 12 previous convictions for driving with excess breath or blood alcohol. The convictions span 30 years and the last one was some five years prior to the present offending. Most recently, in February 2008, Mr Noble was sentenced to nine months’ home detention and given a “final warning”. Prior to that he had been sentenced to terms of imprisonment for 10 months in August 2006 and three months in October 1996.

[4] The Judge reviewed the extensive history of alcohol-related offending and expressed the view that, at his age, Mr Noble was now not capable of changing his ways in relation to alcohol-related offending. The Judge rejected home detention as a “thoroughly inadequate response to your totally unacceptable behaviour”, and settled on the sentence he did in the following context:[1]
[1] Police v Noble DC New Plymouth CRI-2012-043-485, 7 June 2012 at [6].

... You were given a final warning in February 2008. You were told then, reoffend and prison beckons. You reoffended. One day, Mr Noble, you might even at this advanced point of your life wake up to the fact that drink has…

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 1984
Case: [2012] NZHC 1984
Decision Date: 8 August 2012

CaseChat Overview and Summary

David Noble appeals against his 18-month imprisonment sentence for driving with excess breath alcohol, his third or greater conviction for this offence. The District Court Judge rejected home detention as an alternative to imprisonment. The High Court considered the appeal on the grounds that the sentence was manifestly excessive and that the Judge was wrong to reject home detention. The Court noted that Mr Noble had a long history of alcohol-related driving offences, and that the Judge believed he was incapable of changing his ways. The Judge considered home detention a thoroughly inadequate response to Mr Noble's unacceptable behaviour and opted for imprisonment. The Court held that the sentence was manifestly excessive and substituted it with a term of 12 months' imprisonment. The Court also considered whether the Judge erred in rejecting home detention but found that the Judge appropriately exercised their discretion, and the appeal on this ground was dismissed. The Court substituted the original sentence with a term of 12 months' imprisonment.

Orders