Osborn v Police
[2025] NZHC 1818
•3 July 2025
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2025-409-117
[2025] NZHC 1818
BETWEEN HADLEY HAYDEN OSBORN
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 3 July 2025 Appearances:
B S T Moore for Appellant G J Barrett for Respondent
Judgment:
3 July 2025
JUDGMENT OF MANDER J
This judgment was delivered by me on 3 July 2025 at 4 pm pursuant to Rule 11.5 of the High Court Rules 2016
Registrar/Deputy Registrar Date: .
OSBORN v NEW ZEALAND POLICE [2025] NZHC 1818 [3 July 2025]
Introduction
[1] Hadley Osborn (aged 46) pleaded guilty to one charge of driving contrary to a zero-alcohol licence1 and one charge of driving with excess breath alcohol being his third offence.2 He was sentenced by Judge Couch to six months’ home detention.3 Mr Osborn appeals that sentence on the grounds the starting point imposed was too high and that insufficient credit was afforded to him in recognition of his addiction issues and rehabilitative efforts. It is argued these errors resulted in the imposition of a period of home detention which was an inappropriate sentence and manifestly excessive. He argued a dual sentence of community detention combined with intensive supervision should have been imposed.
Facts
[2] On 13 December 2022, Mr Osborn became subject to a zero-alcohol licence. On 16 October 2024, he was stopped at an alcohol checkpoint. He returned a positive breath screening test, and a subsequent evidential breath test resulted in a reading of 1139 micrograms of alcohol per litre of breath. He admitted having consumed two ciders before driving. This was Mr Osborn’s third conviction for driving with excess blood/breath alcohol.
District Court Decision
[3] The Judge regarded the gravity of the offence as high. He noted Mr Osborn had exceeded the legal alcohol limit by more than four times for a driver on an ordinary licence. He, of course, was on a zero-alcohol licence.
[4] The Judge adopted a starting point of 16 months’ imprisonment for both offences, which included the aggravating factor of his previous driving offences. A 25 per cent deduction was given for prompt guilty pleas which resulted in an adjusted starting point of 12 months’ imprisonment.
1 Land Transport Act 1998, s 32(1)(b) and (3); maximum penalty three months’ imprisonment or
$4500 fine.
2 Sections 56(1) and (4); maximum penalty two years’ imprisonment or $6000 fine and 12 months disqualification.
3 Police v Osborn [2025] NZDC 11222.
[5] In considering whether a less restrictive sentence was appropriate, the Judge considered that community detention would not satisfy the purposes of the Sentencing Act 2002, particularly the need for denunciation, deterrence and protection of the public. The Judge ultimately imposed six months’ home detention, with standard and special conditions to apply until six months after the detention end date.
[6] A concurrent sentence of one month home detention was imposed on the zero- alcohol licence offence. He was also disqualified for six months from obtaining a driver licence, to commence in six months’ time.
[7] As a consequence of his conviction on the breath alcohol charge, Mr Osborn was subject to sentence under s 65AI of the Land Transport Act 1998. This meant he was ordered to attend an assessment centre and disqualified from holding or obtaining a driver licence indefinitely until the Director of Land Transport removed that disqualification. When eligible to apply for a licence, the zero alcohol licence provisions would continue to apply.
The appeal
Leave to adduce fresh evidence
[8] Mr Moore, for the appellant, seeks to adduce fresh evidence in support of Mr Osborn’s appeal. This material comprises letters confirming the treatment steps he had undertaken at the time of sentencing. The steps Mr Osborn has taken to cease his dependence on alcohol were detailed in the pre-sentence report, however the letters (which Mr Osborn says he accidentally left at home on the day of sentencing) are said to provide a stronger evidential basis to confirm the assistance he was getting. While Mr Moore acknowledges this evidence is not fresh, he says it should be admitted so the Court has the most accurate information to determine whether a deduction for rehabilitation is warranted.
[9] Ms Barrett, for the respondent, acknowledges she has no reason to doubt the credibility of the letters. However, she submits the evidence is not fresh as it was available at the time of sentence but simply not brought to court. Ms Barrett submits that if the Court finds the evidence is fresh, it should not be admitted as it would not
affect the sentence. She says it is clear the Judge read the pre-sentence report which outlined the steps the appellant had taken to address his reliance on alcohol.
[10] I have read the letters sought to be adduced as evidence. I have no doubt they provide credible information notwithstanding the informal way they have sought to be introduced. However, the letters could have been adduced at the hearing and are plainly not fresh. This is not the end of the analysis. If, despite a lack of freshness, the Court considers the materiality of the evidence is such that it may have affected the sentence imposed and that the interests of justice favour such a course, the appeal court may still exercise its discretion to admit the evidence.4
[11] The difficulty for Mr Osborn is that I do not consider the content of the letters, regarding the alcohol treatment and counselling he has undertaken, substantially advance matters beyond those which the sentencing Court was not already aware from the pre-sentence report.
Sentence appeal—submissions
[12] Mr Moore submitted the Judge erred by taking too high a starting point, not applying credit for the nexus between the appellant’s addiction and his offending and failing to recognise his rehabilitative efforts. Mr Moore argued that imposing a sentence of home detention was manifestly excessive and submitted a sentence of community detention with intensive supervision should have been imposed instead.
[13] Mr Moore relies on Henderson v Police as a directly analogous case.5 In Henderson, the relevant aggravating factors included a high breath alcohol level (1438 micrograms per litre of alcohol); driving contrary to a zero-alcohol licence; and dangerous driving (other road users had to swerve to avoid the appellant who was crossing the centre line over an extended period); the appellant had previously incurred two convictions within five years of the offending. The Judge on appeal found the starting point of 15 months’ imprisonment was “high, but not excessive” but quashed
4 Mark v R [2019] NZCA 121 at [16].
5 Henderson v Police [2015] NZHC 3249.
the uplift of three months for dangerous driving because that had already been taken into account as an aggravating feature of the lead offence.
[14] Mr Moore submitted that in the present case there were only two seriously aggravating features—the high breath content and the driving contrary to a zero- alcohol licence. While he acknowledged the breath limit was high, Mr Moore argued it was just under three times the legal limit (being 400 micrograms of alcohol per litre of breath),6 and significantly lower than the level returned in Henderson. Mr Moore accepted Mr Osborn was driving in breach of his zero-alcohol licence but submitted this did not seriously aggravate the offending because it was the first instance of him driving in breach of that licence. He submitted the Court should have dealt with this offence by way of a fine and disqualification. When these factors are taken together with the adjusted starting point in Henderson, Mr Moore contended a starting point of no more than 12 months’ imprisonment was appropriate.
[15] Mr Moore submitted the Court erred by omitting to consider whether further deductions were warranted in recognition of Mr Osborn’s addiction, the rehabilitative steps he has taken and his rehabilitative prospects. Mr Osborn accepts he is an alcoholic, and that his decision-making is impaired when under the influence of alcohol. Mr Moore argued there was a causal link between the addiction and the offending which warranted a deduction. Further, he submitted Mr Osborn is currently undertaking steps towards recovery, and submitted a modest deduction was available for those rehabilitative efforts.
[16] Finally, Mr Moore submitted the public would be effectively protected by the automatic statutory application of an indefinite disqualification,7 and there was no reason to consider that community detention would not provide an adequate level of deterrence and denunciation. It was noted that Mr Osborn’s most significant previous penalty has been a fine, and that the offending was not at a level that precluded community detention. Mr Moore further argued that home detention would be detrimental to his rehabilitation, and that his current isolation and social anxiety would
6 Ireland v Police [2021] NZHC 3202 at [26]–[27].
7 Land Transport Act, s 65(2).
not only be heightened by a sentence of home detention but aggravate his reliance on alcohol.
[17] In defence of the sentence, Ms Barrett submitted the starting point adopted was within the range available to the Judge. In Schroder-Mann v Police, the appellant had been convicted of driving with excess breath alcohol being a third or subsequent offence; breaching a zero-alcohol licence; and other unrelated offending.8 The appellant had returned an alcohol reading of 838 micrograms per litre of breath and had six previous relevant convictions. Aggravating factors were identified as the high level of intoxication whilst driving and that the appellant was the holder of a zero- alcohol licence. On the appeal, Dunningham J, after referring to Clotworthy v Police9 and Samson v Police,10 considered the 16-month starting point for the breath alcohol offending was not excessive. Ms Barrett submitted that, in the present case, Mr Osborn’s breath alcohol reading was significantly higher, although it is acknowledged he has acquired fewer relevant convictions.
[18] Ms Barrett submitted the Judge was aware of both Mr Osborn’s addiction issues with alcohol and the rehabilitative steps he had taken that were outlined in the pre-sentence report, and that the appellant’s difficulties with alcohol were referred to when the Judge discussed the need to protect the public.11
[19] Ms Barrett also submitted the imposition of home detention was a reasonable response to protect the public given the appellant’s demonstrated inability to adhere to restrictions imposed by the courts by driving while intoxicated.
Sentence appeal—analysis
[20] There is no tariff judgment for drink driving offending. This was Mr Osborn’s third conviction for driving with excess blood/breach alcohol, although his first in the aggravated form. There were some aggravating factors that needed be considered in
8 Schroder-Mann v Police [2019] NZHC 152.
9 Clotworthy v Police (2003) 20 CRNZ 439 (HC).
10 Samson v Police [2015] NZHC 748.
11 Police v Osborn, above n 3, at [5].
imposing sentence.12 They included the high breath alcohol reading and the fact Mr Osborn was subject to a zero-alcohol licence.
[21] The Judge assessed the alcohol level as “more than four times the limit”, based on the maximum limit for an infringement notice of 250 micrograms of alcohol per litre of breath. More accurately, Mr Osborn’s level was just under three times the legal limit when regard is had to relevant offences that give rise to prosecution, conviction, and a court-imposed sentence being a breath alcohol limit exceeding 400 micrograms of alcohol per litre of breath. Nevertheless, Mr Osborn’s level of 1139 was high.
[22] Despite Mr Osborn’s higher breath alcohol level, Schroder-Mann was a more serious case. The appellant in that case had six previous convictions for driving with excess breath alcohol, three of which had been incurred since the imposition of his zero-alcohol licence. He also had nearly $20,000 in outstanding fines, which indicated that a “community-based approach had not worked”.13 The appellant in that case had also previously received both home and community-based sentences. In comparison, Mr Osborn has less previous convictions and has not previously breached his zero- alcohol licence. He is relatively untested on community-based sentences, having only received fines in the past.
[23] Henderson is a more instructive case. While Mr Osborn’s level was high, it was still lower than that in Henderson and there was no dangerous driving aggravating the offending. I accept the starting point should have been less than Henderson and consider it ought to have been no more than between 12 and 14 months. I would adopt a starting point of 13 months. The two earlier convictions are not as material as they may otherwise be because the charge itself and, moreover, the higher maximum penalty recognises there must have been at least two earlier such offences. With Mr Osborn having acquired his third conviction, he met the threshold for the aggravated offence and his jeopardy became greater as a result.
12 R v McQuillan CA129/04, 12 August 2004 at [22]; Clotworthy v Police, above n 9; and Samson v Police, above n 10.
13 Schroder-Man v Police, above n 8, at [3].
[24] While there is no reason to consider the information regarding Mr Osborn’s alcoholism and rehabilitation, which was set out in the pre-sentence report, was not taken in to account by the Judge, it is not expressly referenced in the sentencing remarks. These are relevant personal matters which should have been assessed as they may bear on the appropriate sentence. In assessing these factors on the appeal, I consider some reduction would have been appropriate.
[25] The pre-sentence report makes it clear that Mr Osborn suffers from a dependence on alcohol, a consequence of which is its impact on his cognitive and decision-making abilities. There is a causal connection with this offending. However, the extent, if any, of any deduction for such a factor in the context of drink driving offending has to be significantly tempered by the priority that must be given to the protection of the public from drunk drivers, and particularly from recidivist offenders. An individual’s addiction to alcohol no doubt forms part of the reason for their offending, but the risk they present is all the greater as a consequence. A more convincing mitigating consideration are the efforts Mr Osborn has made since these charges have been laid to address his alcohol issues. He has been engaging in outpatient treatment by attending an organised programme and regular counselling. Mr Osborn has taken positive steps to seek assistance in the wake of his offending.
[26] The adjusted initial sentence of 12 months’ imprisonment (rounded down after extending a 25 per cent deduction for Mr Osborn’s prompt guilty plea) was converted to six months home detention. Because this was Mr Osborn’s third charge of driving with excess breath alcohol which was aggravated by driving while on a zero-alcohol licence, I accept the sentence was required to provide for deterrence, denunciation and designed to protect the public. However, I do not consider home detention was the least restrictive outcome that was available in the circumstances to meet these sentencing purposes.14 Other factors needed to be considered, including Mr Osborn’s apparent reliance or dependence on alcohol, moreover, the steps he has taken towards addressing that difficulty. I consider the pre-sentence report writer’s recommendation of community detention and intensive supervision should have been adopted. Such a
14 Sentencing Act 2002, s 8(g).
sentence would more appropriately have met the principles and purposes of sentencing in this situation, including deterrence and Mr Osborn’s rehabilitation needs.
[27] It is notable that Mr Osborn has no previous convictions for disqualified driving. While on this occasion he breached his zero alcohol licence, the disqualification provisions of the Land Transport Act to which he is now subject should be sufficient to provide for community protection without requiring Mr Osborn to be subject to a 24-hour curfew and round-the-clock confinement to his home. Being satisfied home detention was not the appropriate sentence in the circumstances, the appeal is allowed.
[28] Mr Osborn has been subject to the home detention sentence for some six weeks and that period served will need to be taken into account when substituting the new sentence.
Result
[29]Leave to adduce further evidence is declined.
[30]The appeal against sentence is allowed.
[31] The six-month sentence of home detention is quashed. A sentence of four months’ community detention and six months’ intensive supervision is substituted on the charge of aggravated driving with excess breath alcohol. The one month sentence of home detention on the charge of driving contrary to a zero alcohol licence is also quashed and substituted with a concurrent sentence of one month’s community detention.
[32] The recommended special conditions and curfew set out in the pre-sentence report are to apply. All other sentences and orders remain in place.
Solicitors:
Public Defence Service, Christchurch Crown Solicitor, Christchurch
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