Perry v Police - [2018] NZHC 3246

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-325

[2018] NZHC 3246

BETWEEN
CLAIRE YVONNE PERRY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 10 December 2018

Appearances:

J Olsen on behalf of J Munro for the Appellant M Mortimer for the Respondent

Judgment:

10 December 2018

ORAL JUDGMENT OF GORDON J

Solicitors: Crown Solicitor, Auckland Counsel: J Munro, Auckland

PERRY v POLICE [2018] NZHC 3246 [10 December 2018]

Introduction

[1] The appellant, Claire Perry, pleaded guilty to the following four charges under the Land Transport Act 1998 (the Act):

(a)Two charges of driving with excess breath alcohol (third or subsequent);1 and

(b)Two charges of driving contrary to a zero alcohol licence.2

[2] On 25 September 2018, Judge Dawson, in the District Court at Auckland, sentenced Ms Perry to seven months’ home detention.3 He also disqualified Ms Perry from driving for a total of three years and imposed an alcohol interlock sentence.

[3] Ms Perry only appeals the sentence insofar as it relates to the imposition of the cumulative disqualifications from driving together with the alcohol interlock sentence. She does not appeal the sentence of home detention.

Factual background

[4]On 25 November 2016, Ms Perry was issued with a zero alcohol licence.

[5] At about 2:30 pm on 8 November 2017, Ms Perry was driving a motor vehicle at Red Beach. The Police stopped her vehicle. Breath test procedures were carried out. They produced a result of 1,199 micrograms of alcohol per litre of breath.

[6] At about 7:15 pm on 23 December 2017, Ms Perry was driving a Suzuki motor vehicle on East Coast Road, Pinehill. The Police stopped Ms Perry’s vehicle. After speaking to Ms Perry, they carried out breath test procedures. They produced a result of 1,037 micrograms of alcohol per litre of breath.

1      Land Transport Act 1998, s 56(1).
2      Section 32(1)(b).
3      New Zealand Police v Perry [2018] NZDC 24668.

District Court decision

[7] After summarising the factual background, Judge Dawson identified that Ms Perry has six previous convictions for drink-driving and four others on her record.4

[8] The Judge then summarised the aggravating features of the offending as follows:

[8] The gravity of your offending in my view is high. The aggravating factors are the number of your previous convictions but, in addition, the last three occasions now when you have been drink-driving you have levels over 1000 micrograms per millilitre of breath. All three of those levels are extremely high. The concern I have from that is that it gives the appearance that your offending is escalating.

[9] After summarising the pre-sentence report, the Judge adopted a starting point of 20 months’ imprisonment.5 He uplifted that by four months to reflect the concurrent offending, before reducing it by six months in total to reflect Ms Perry’s guilty pleas and rehabilitative efforts.6 He then reduced it by a further four months because Ms Perry had spent a month in custody and had spent eight…

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 Perry v Police

Details

AGLC: Perry v Police [2018] NZHC 3246
Case: [2018] NZHC 3246
Decision Date: 10 December 2018

CaseChat Overview and Summary

Claire Perry appealed against the sentences imposed by Judge Dawson in the District Court for driving with excess breath alcohol and driving contrary to a zero alcohol licence. The appeal centred on the legality of the cumulative disqualification periods and the alcohol interlock sentence. The High Court found that it was an error of law for Judge Dawson to impose a mandatory period of disqualification on the driving with excess breath alcohol charges as the new legislation made such disqualifications redundant when an alcohol interlock sentence was imposed. However, the Court held that it was within the Judge’s discretion to impose a period of disqualification for the charges of driving contrary to a zero alcohol licence, and that it was appropriate to do so in this case. The appeal was allowed in part, quashing the periods of disqualification but maintaining the alcohol interlock sentence.

Orders