Pinker v Police - [2015] NZHC 3020

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2015-409-000094 [2015] NZHC 3020

BETWEEN
ALLEN PINKER

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 1 December 2015

Appearances:

R R Ward for Appellant
S E Burdes for Respondent

Judgment:

2 December 2015

JUDGMENT OF GENDALL J

[1] On 8 September 2015, Mr Allen Pinker was sentenced in the District Court to two years, two months’ imprisonment (amongst certain other sentencing orders) in relation to two charges of driving with excess breath alcohol in the aggravated form.1

[2] The first charge arose from events occurring on 26 April 2015. Mr Pinker was driving a motor vehicle in the carpark of a backpackers at around 7.27 pm. He stepped on the accelerator heavily, reversing his vehicle through a garden island and into a six foot high wooden fence, causing extensive damage. Mr Pinker subsequently underwent an evidential breath test, which returned a result of 1,273 micrograms of alcohol per litre of breath. Mr Pinker was unable to comment at the time due to his level of intoxication.

[3] The second charge arose from events occurring on 9 August 2015. At around
3.37 am Mr Pinker was driving a motor vehicle on Oliviers Road. He was observed by a witness to be swerving all over the road, completing multiple U-turns, and

1 New Zealand Police v Pinker [2015] NZDC 17894.

PINKER v NEW ZEALAND POLICE [2015] NZHC 3020 [2 December 2015]

hitting the curb three times. When Police apprehended Mr Pinker, the vehicle was stopped, but with the keys in the ignition and the vehicle still running. When spoken to, Police noticed he was affected by alcohol. An evidential breath test yielded a result of 1,035 micrograms of alcohol per litre of breath. This offending occurred whilst Mr Pinker was on bail for the earlier charge.

[4] Mr Pinker now appeals but only against the imprisonment sentence imposed on the singular basis it was manifestly excessive. In submissions, Mr Ward, counsel for Mr Pinker, clarified the factors that led to the manifest excess as:

(a) excessive starting points on each charge;

(b) the end sentence was not discounted to sufficiently account for Mr

Pinker’s personal mitigating features; and

(c) failure to adequately apply the totality principle.

District Court

[5] In sentencing Mr Pinker, Judge O’Driscoll considered the relevant purposes to deter Mr Pinker and others from drinking and driving and to hold Mr Pinker accountable.2 The dominant principle, however, was the need to protect the community.3 As to the principles of sentencing, his Honour noted that he was
required to impose the least restrictive sentence on Mr Pinker.4 Judge O’Driscoll

further stated:5

I am required to take into account the seriousness of the offending. I regard this offending as being extremely serious. The gravity of the offending is high and your culpability is high and that is evidenced by the fact that you have six previous convictions for drinking and driving and the fact that there are two charges before me, with the second…

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 Pinker v Police

Details

AGLC: Pinker v Police [2015] NZHC 3020
Case: [2015] NZHC 3020
Decision Date: 2 December 2015

CaseChat Overview and Summary

In Pinker v Police, Allen Pinker appeals against the imprisonment sentence imposed by the District Court for two charges of driving with excess breath alcohol in the aggravated form. The District Court imposed a sentence of two years, two months' imprisonment, which Mr Pinker argues was manifestly excessive. The appeal hinges on three primary issues: whether the starting points for the sentences were excessive, whether the District Court adequately considered Mr Pinker's personal mitigating factors, and whether the total sentence complied with the totality principle.

The High Court first addressed the starting points for each charge. The April 2015 incident involved extremely high alcohol levels and dangerous driving causing property damage, while the August 2015 incident involved similar high alcohol levels and dangerous driving, but also occurred while Mr Pinker was on bail with a condition not to drive. The Court found that a starting point of 15 months for the April charge and 18 months for the August charge was excessive. It adjusted the starting points to 13 months and 16 months respectively, taking into account the eight-year gap since the last conviction.

Next, the Court considered whether the District Court sufficiently accounted for Mr Pinker's personal mitigating factors. These included his past efforts to address alcohol-related issues, his guilty pleas, and the fact that he had not previously received a custodial sentence. The Court found that the District Court had not adequately considered these factors, particularly for the April charge. It adjusted the sentences by discounting two months for the April charge and no discount for the August charge, leading to a revised total sentence of 21 months' imprisonment.

Finally, the Court examined whether the revised sentence of 21 months' imprisonment complied with the totality principle. The Court concluded that the sentence was not disproportionate to the gravity of the offending and thus did not breach the totality principle.

The appeal was allowed, and the District Court sentence was quashed. Mr Pinker was sentenced to nine months' imprisonment for the April charge and 12 months for the August charge, to be served cumulatively, resulting in a total of 21 months' imprisonment. The Court also noted that home detention was not appropriate in this case.

Orders