Perham v Police - [2016] NZHC 2099

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2016-488-25 [2016] NZHC 2099

BETWEEN
GEORGE ALLEN PERHAM

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 5 September 2016

Appearances:

M Powell for the Appellant
J W Wall for the Respondent

Judgment:

5 September 2016

ORALJUDGMENT OF MUIR J (Sentence Appeal)

Counsel/Solicitors:
M Powell, Barrister, Kerikeri
J W Wall, Crown Solicitor, Whangarei

PERHAM v POLICE [2016] NZHC 2099 [5 September 2016]

Introduction

[1] This is an appeal from a decision of Judge G L Davis in which, on charges of driving with excess breath alcohol (third and subsequent), driving while disqualified and breaching bail by failing to appear, he sentenced the defendant to 15 months’ imprisonment.

[2] While acknowledging that such sentence was within range the appellant contends that the learned Judge erred in the exercise of his discretion in not imposing a sentence of home detention.

Factual background

[3] On the evening of 23 January 2015 the appellant was apprehended by the Police for exceeding the speed limit by 16 km/h in Rotorua. He was breath tested recording a result of 1,163 mg of alcohol per litre of breath. In explanation he said he was driving because he was in better condition than his passengers, that he had not been drinking that day but that he had been drinking heavily over the two days previously.

Prior offending

[4] This was the appellant’s fifth conviction for drink driving.

[5] Most recently, he had been convicted on 24 November 2010 with a reading of

801 mg of alcohol per litre of breath for which he was sentenced to community detention, intensive supervision and was indefinitely disqualified from holding a licence. It was on the basis of that disqualification that the relevant prosecution proceeded in this case.

[6] While subject to intensive supervision between November 2010 and November 2011 he failed to complete the alcohol and drug counselling component of the sentence. In consequence the Probation Service notes he is at high risk of re- offending.

[7] His previous convictions were respectively in July 2009 with a breath alcohol reading of 984 mg of alcohol per litre of breath, in September 2008 with a reading of
653 mg of alcohol per litre of breath and in August 2007 with 480 mg of alcohol per litre of breath. The offence history therefore demonstrates escalating breath alcohol levels over time.

[8] The appellant also has numerous other convictions for failing to comply with intensive supervision, community work and failure to answer District Court bail.

District Court Decision

[9] In his decision Judge Davis reviewed the appellant’s history of drink driving and other relevant convictions. He noted in particular the defendant’s failure to complete the alcohol and drug counselling requirements of his supervision sentence which he said indicated that “his motivation to address the fundamental causes of his
offending remains low.1 He also concluded, based on the appellant’s criminal history

that he demonstrated a poor ability to comply with sentences.2

[10] He then considered the factors in

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 Perham v Police

Details

AGLC: Perham v Police [2016] NZHC 2099
Case: [2016] NZHC 2099
Decision Date: 5 September 2016

CaseChat Overview and Summary

Perham, the appellant, appealed against his sentence of 15 months imprisonment imposed by the District Court for driving with excess breath alcohol (third and subsequent), driving while disqualified, and breaching bail. Perham’s counsel argued that the District Court Judge erred in not imposing a sentence of home detention. The District Court Judge had found that Perham had demonstrated a complete lack of desire to address the fundamental causes of his offending, mainly his alcohol use. Perham’s counsel argued that he had enrolled in a non-residential group-based counselling course and had an appointment card confirming an intention to enrol in a one on one counselling programme. Perham’s counsel also argued that the District Court Judge had failed to consider the appellant’s personal circumstances, including his intention to resume a relationship with the mother of his child. The Crown argued that the District Court Judge was entitled to give significant weight to the principles of deterrence and denunciation in the context of Perham’s previous history.

The Court of Appeal held that the focus of appellate review of such sentencing decisions is on the identification of error. The Court held that in this case the District Court Judge had not focused exclusively on the principle of deterrence, although in the Court’s view he had given proper prominence to it. The Court concluded that the exercise of the Court’s discretion was appropriately focused on issues of deterrence, denunciation, and protection of the public. The Court accepted that the District Court Judge had erred in stating that Perham had a complete lack of desire to address the fundamental causes of his offending. However, in assessing whether on account of that error a different sentence should be imposed, the Court must take into account the fact that Perham had failed to complete an alcohol and drug counselling course, although mandated to do so, and the fact that this apparent enrolment occurred in close proximity to Perham’s appearance in court in circumstances where he had returned to Kaitaia several months earlier. The Court accepted also Perham’s counsel’s submission that the District Court’s decision contained no obvious consideration of Perham’s return to Kaitaia and the support which he is receiving from his partner. However, in assessing again whether such factors would lead to imposition of a different sentence, the Court must take into account the fact that there is some history of instability in this relationship, with Perham only having lived with his partner for what appears to be in the order of two years before separating towards the end of 2014. There then followed in excess of a year when Perham was either in the Bay of Plenty or in the South Island. The Court accepted the appellant’s partner’s support as a positive influence in Perham’s life but must weigh that against the prospect that in the context of previous instability her good influence may or may not be available during the course of a sentence of home detention.

The Court therefore dismissed the appeal.

No orders.

Orders