Poulson v Police - [2016] NZHC 2166

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI 2016-442-13 [2016] NZHC 2166

BETWEEN
CORI MARTIN POULSON

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 13 September 2016

Counsel:

T H A Spear for Appellant
S J Revell for Respondent

Judgment:

13 September 2016

JUDGMENT OF SIMON FRANCE J

[1] Mr Poulson appeals a sentence of nine months’ imprisonment imposed in relation to one charge of driving with a zero alcohol licence, whilst having a breath alcohol level of 295 mg. The other charge was dangerous driving reflecting the fact that while over the alcohol limit Mr Poulson was driving at 176 kph. His 14 year old
son was a passenger.1

[2] Mr Poulson is 36 years old. He has four previous drink driving offences – in

2000 (breath, 627 mg); in 2003 (breath, 941 mg); in 2010 (breath, 869 mg); and in

2012 (blood, 203 ml). On the occasion of the 2012 offence he was sentenced to three months’ community detention, one year intensive supervision and disqualified indefinitely. He subsequently obtained a licence but with a zero alcohol condition.
Mr Poulson was in employment but lost his work as a result of this offending.

1 NZ Police v Poulson [2016] NZDC 12395.

[3] The penalty for alcohol related driving while on a zero alcohol licence varies with level of alcohol:2

(a) up to 250 mg, maximum of three months’ imprisonment and $2,250

fine;

(b)over 250 mg, maximum of two years’ imprisonment and a $6,000 fine.

[4] A reading of 250 mg is the level at which offending now starts for those with a full licence. It is punishable by a fine. The much higher maximum penalty for the same level for zero rated licences no doubt reflects the circumstances that have led a driver to have a zero alcohol licence – namely, similar past offending.

[5] The sentencing Judge took a starting point of 12 months’ imprisonment for all the offending. The aggravating factors in addition to the drink driving were identified as:

(a) the speed;

(b) the risk created to his son, and other road users; and

(c) the previous drink driving offending.

[6] Credit was given for Mr Poulson’s guilty plea leaving a final sentence of nine months’ imprisonment. The Judge declined home detention. It was noted Mr Poulson had previously been sentenced to community detention and supervision. The purposes of sentencing, in particular deterrence and protection of the community, would not be met by a sentence less than imprisonment.

[7] On appeal it is submitted the starting point is excessive and pays insufficient regard to the particular drink driving offence. It is said the Court has sentenced
Mr Poulson as if he had committed a fifth serious drink driving offence akin to the

2 Land Transport Act 1998, s 57AA.

previous four. However, the level was barely above that permissible for ordinary licences and would attract only an administrative fine in such circumstances. Accepting that Mr Poulson is within the more serious of the two zero…

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.

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Details

Case: [2016] NZHC 2166
Decision Date: 13 September 2016

CaseChat Overview and Summary

In the High Court of New Zealand, Mr. Cori Martin Poulson appealed a sentence of nine months’ imprisonment imposed for driving with a zero alcohol licence while having a breath alcohol level of 295 mg and for dangerous driving. The sentencing judge had taken into account the speed at which Mr. Poulson was driving, the risk he created to his son and other road users, and his previous drink driving offences. The appeal focused on whether the starting point of 12 months’ imprisonment was excessive and whether the low alcohol level should have resulted in a lesser sentence.

The court needed to decide if the starting point for the sentence was appropriate, considering the low alcohol level and the overall seriousness of the offence. The appeal also questioned whether the previous drink driving offences should still be factored in, given the zero alcohol licence. The court had to determine the appropriate starting point for the sentence, taking into account the low alcohol level, the dangerous driving charge, and Mr. Poulson’s history of drink driving offences.

The High Court found that while the starting point was excessive, the low alcohol level should have resulted in a lesser sentence. The court accepted that the 294 mg reading was towards the bottom of the offence spectrum and should be recognised in the starting point. However, the dangerous driving charge and the previous drink driving history still needed to be factored in. The court concluded that an appropriate starting point was six months’ imprisonment, with an additional penalty for dangerous driving and a reduction for the guilty plea. The final sentence was six months, and given the time already served, Mr. Poulson would be eligible for release soon.

The court allowed the appeal, quashed the sentence of nine months, and substituted a sentence of six months’ imprisonment. The balance of the original sentence remained unchanged.

Orders