R v Stone - [2009] NZCA 539

IN THE COURT OF APPEAL OF NEW ZEALAND
CA485/2009
[2009] NZCA 539
THE QUEEN
v
CHRISTOPHER GORDON STONE
Hearing:14 October 2009

Court:Glazebrook, Potter and Wild JJ
Counsel:C B Wilkinson-Smith for Appellant

B D Tantrum for Crown

Judgment:17 November 2009 at 4.00 pm

JUDGMENT OF THE COURT

The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Wild J)
Introduction
[1]        After Mr Stone had pleaded guilty to an eighth offence of driving with excess breath alcohol, Judge Blackie sentenced him to eight months home detention and disqualified him from driving for three years commencing immediately. This occurred in the District Court at Manukau on 16 July 2009. Mr Stone appeals, but only against the period of disqualification. He claims it was excessive, maintaining that 18 months was the appropriate period.
The facts
[2]        At about 6.50 pm on Saturday 18 June 2005, Mr Stone was driving a Holden vehicle on State Highway 1 near Otahuhu. The police noticed the car was overloaded with passengers and stopped it. While the police were speaking to Mr Stone, they noticed signs of “recent alcohol intake”. A breath test resulted in a reading of 723 micrograms of alcohol per litre of breath (against the legal limit of 400).
[3]        For the reasons we detail in [4]-[8], the matter was not dealt with by the District Court until July 2009. By that stage, Mr Stone’s recollection of the incident was hazy. He said that it was his daughter’s 18^th birthday that day. After drinking “a few beers” in the afternoon, he went to sleep. His daughter woke him and asked whether he would drive her and her friends to a function. He maintained he felt “as good as gold” and quite able to drive. He said that neither his daughter nor any of her friends expressed concern about his driving ability.
What happened in the District Court
[4]        Unusually, Mr Stone elected to be tried by a jury. In breach of his bail, he did not appear at a callover on 27 October 2005. After being arrested, he was bailed again, this time to appear at a pre-trial callover on 24 November 2005, with his trial scheduled to start on 28 November. He failed to appear at the callover and the fixture for his trial had to be vacated.
[5]        Judge Blackie described what ensued in this way:
You somehow went beneath the radar and removed yourself from the Court process until you were eventually arrested on 3 April 2009.

[6] Following two further court appearances, Mr Stone pleaded guilty on 14 May 2009, and was remanded for sentence on 2 July. A pre-sentence report recommended a sentence of community work.
[7] When Mr Stone appeared for sentence before Judge Blackie on 2 July, the Judge spoke to him in appropriately stern terms. He made clear how unimpressed he was by Mr Stone’s attempts to postpone justice. He conveyed to Mr Stone that he considered the recommended sentence of community work totally inadequate,…

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 R v Stone

Details

AGLC: R v Stone [2009] NZCA 539
Case: [2009] NZCA 539
Decision Date: 17 November 2009

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the case of The Queen v Christopher Gordon Stone was heard. The appellant, Mr Stone, appealed against a three-year driving disqualification imposed by the District Court at Manukau following his eighth offence of driving with excess breath alcohol. Mr Stone argued that the disqualification period was excessive, suggesting that an 18-month disqualification was appropriate. The court was required to decide whether the District Court Judge's imposition of a three-year disqualification period was justified and whether it was manifestly excessive. The court examined the statutory and case law related to penalties for excess breath alcohol offences and the correlation between the number of convictions and the length of disqualification. The Court of Appeal found that no correlation could be drawn between the number of excess breath alcohol convictions and the period of disqualification imposed. The Judge's reasons for the three-year disqualification period were based on the appellant's history of drink-driving and his failure to appear for trial, which were specific factors in this case. The Court of Appeal concluded that the three-year disqualification period was not manifestly excessive when viewed as a component of an overall sentence for an eighth excess breath alcohol conviction in the circumstances presented. The appeal was dismissed, and the three-year disqualification period stands.

The final orders of the Court of Appeal are as follows: the appeal is dismissed, and the three-year disqualification period imposed by the District Court at Manukau remains in effect.

Orders