Pitman v Police - [2015] NZHC 205

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2014-488-54 [2015] NZHC 205

BETWEEN
KRISTOPHER DAVID PITMAN

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 4 February 2015

Counsel:

B J Meyer for Appellant
M B Smith for Respondent

Judgment:

18 February 2015

JUDGMENT OF FOGARTY J

This judgment was delivered by me on 18 February 2015 at 4.00 p.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors: Marsden Woods Inskip & Smith, Whangarei

PITMAN v POLICE [2015] NZHC 205 [18 February 2015]

Introduction

[1] On 9 December 2014, in the District Court at Whangarei, Judge D J McDonald sentenced the appellant, on his fourth conviction for driving with excess breath alcohol, to seven months imprisonment. He was disqualified from holding or obtaining a driving licence for a period of 12 months. He was concurrently sentenced to one month imprisonment for breach of bail. He had failed to answer the summons in relation to the excess breath alcohol charge, until making a voluntary appearance nearly one year later, on 8 October 2014.

[2] He appeals against the prison sentence. The fourth conviction to which he was sentenced occurred on 8 August 2011 with a limit of 625.

[3] His previous drink/driving convictions are as follows:

● September 2007, limit:631, fine $500 DQ 6 months.

● October 2008, limit:651, CW 60 hours DQ 7 months.

● January 2009, limit:722 CD 6 months DQ 15 months.

[4] The reasoning of the learned District Court Judge is short and can conveniently be set out in full:

[4] I need to take into account the purposes and principles of sentencing. The need to deter and denounce repeat drink-drivers. To protect the public. To be consistent, so it does not matter what Judge you get or what day you appear in Court, at least in Northland, on an excess breath alcohol you will get roughly the same sentence. Of course, it must be the least restrictive.

[5] In setting the starting point I have regard to your level, 625 which is high. Your previous in 2007 of 631, 2001 of 651 and 2009 of 722. You were fined, given community work and community detention. No driving fault. You were not disqualified or forbidden but it is your fourth in reasonably short order.

[6] In my view a starting point of imprisonment is appropriate. The need to deter and denounce and to be consistent. The least restrictive is nine months.

[7] Personal matters. There is no other offending which calls for an uplift. In mitigation. This is being extremely generous to you of around 20

percent for your plea. You went walkabout from September 2013. Well finally it caught up with you. You had to come and face what you had done, that is driving drunk. I would have been justified, because you have no defence to this charge, setting the allowance for a guilty plea as low as 10 percent but I give you 20 percent. That takes it down…

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 Pitman v Police

Details

AGLC: Pitman v Police [2015] NZHC 205
Case: [2015] NZHC 205
Decision Date: 18 February 2015

CaseChat Overview and Summary

The case of Pitman v Police concerns an appeal by the appellant, Kristopher David Pitman, against a prison sentence imposed by the District Court at Whangarei. The appellant was sentenced to seven months imprisonment for his fourth conviction of driving with excess breath alcohol, along with a disqualification from holding or obtaining a driving licence for 12 months. The appellant argued that the sentence was manifestly excessive and that the District Court Judge erred in not considering the option of home detention as the least restrictive outcome appropriate in the circumstances. The Crown argued that the sentence was within the appropriate range and that there is no presumption that a short term of imprisonment will automatically be converted into one of home detention.

The legal issues before the court were whether the prison sentence was excessive and, if not, whether the Court should have expressly considered the option of community or home detention. The court found that the prison sentence was excessive when compared to previously decided cases in the High Court or above. The court noted that there is ample support for short, sharp prison sentences to be imposed on offenders with three or more convictions for blood alcohol offending. However, the court concluded that the sentence should have been in the region of three to four months.

The court allowed the appeal and reduced the sentence to four months imprisonment. The court held that while the appellant's fourth conviction warranted a custodial sentence, the term of imprisonment should have been reduced to reflect the appropriate range of sentencing for offending of this type. The court emphasised that there is no rule that requires the sentencing to go up in grades, and that the appellant's previous sentence of community detention did not mandate a sentence of home detention in this case. The court found that the District Court Judge did not err in principle by not considering the option of home detention.

Orders