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Pollard v R

Pollard v R

Case [2018] NZCA 244 9 July 2018

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA111/2018
[2018] NZCA 244

BETWEEN	MICHAEL ROBERT POLLARD Appellant
AND	THE QUEEN Respondent

Hearing:	24 May 2018
Court:	Clifford, Venning and Mander JJ
Counsel:	C P Brosnahan for Appellant R K Thomson for Respondent
Judgment:	9 July 2018 at 12.30 pm

JUDGMENT OF THE COURT

AThe appeal is allowed.
BThe sentence of two years and seven months’ imprisonment on the lead charge of dangerous driving causing injury is quashed. A sentence of two years and three months’ imprisonment is substituted.
CThe concurrent sentence of nine months’ imprisonment on the charge of failing to stop is quashed. A concurrent sentence of six months’ imprisonment is substituted.

____________________________________________________________________

REASONS OF THE COURT

(Given by Clifford J)

Introduction

In the early hours of the morning of 22 October 2016 a car being driven by the appellant, Michael Pollard, struck and seriously injured Jesse Minnell. Mr Pollard was charged with wounding Mr Minnell with intent to cause grievous bodily harm, in the alternative dangerous driving causing injury, and failing to stop after an injury-accident. Mr Pollard elected trial by jury on those charges.
At the commencement of his trial, Mr Pollard entered guilty pleas to the alternative charge of dangerous driving causing injury and to that of failing to stop after an injury-accident. He was then tried on the charge of wounding with intent to cause grievous bodily harm. He was found not guilty on that charge.
Mr Pollard was subsequently sentenced by the trial Judge, Judge Spear, to two years and seven months’ imprisonment, ordered to pay emotional harm reparation of $10,000 and disqualified from driving for two years.[1]
[1]R v Pollard [2018] NZDC 4154.
Mr Pollard now appeals his sentence of imprisonment as being manifestly excessive. In all the circumstances, he says the end sentence should have been one of less than two years imprisonment, and home detention should have been substituted. He does not challenge either the emotional harm reparation or the disqualification.

Facts

On the evening of Friday 21 October 2016 Mr Pollard was socialising at the Red Lion Inn, across the Whanganui River from the centre of the city. Mr Pollard left the hotel at approximately 1 am in the morning. At Mr Pollard’s trial there was no suggestion that at any relevant point Mr Pollard had an unlawfully high level of blood alcohol.
On leaving the Red Lion Mr Pollard drove into the city centre, purchased a meal and headed back towards his home. As he did so, he encountered a crowd of people congregating on the road outside the Red Lion Inn. The police were in attendance. The hotel had closed at about 2 am, and a fight had broken out between several of the patrons leaving the hotel. As Mr Pollard drove through the crowd, someone kicked the passenger side of his car. He stopped his car, turned and drove back through the crowd. He did that hoping that someone might…

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 Pollard v R

Details

AGLC: Pollard v R [2018] NZCA 244
Case: [2018] NZCA 244
Decision Date: 9 July 2018 at 12.30 pm

CaseChat Overview and Summary

Pollard appealed against his sentence of imprisonment as being manifestly excessive. The court was required to decide whether the starting point sentence of three years and 11 months' imprisonment was too high, and whether the uplifts for the charge of failing to stop and for the previous convictions were excessive. The court was also required to determine whether Pollard should have received the full 25 per cent discount for his guilty pleas. The court found that the starting point sentence was within range, but the additional sentence imposed by reference to the failing to stop charge and previous convictions was excessive. The court found that the uplift of six months on account of both those factors was sufficient. The court found that the discount for remorse was generous, and that the approach the Judge took to the guilty plea discount was appropriate. The court substituted a sentence of two years and three months' imprisonment for the lead charge of dangerous driving causing injury, and a concurrent sentence of six months' imprisonment for the charge of failing to stop.

Orders