[1] Mr Samson was found guilty on charges of driving with excess breath alcohol for a third or subsequent time and driving while disqualified. He was sentenced to
26 months’ imprisonment, together with indefinite disqualification for the EBA

offending, and disqualification for 18 months for the driving while disqualified.

[2] Mr Samson appeals his sentence on the basis that it was manifestly excessive.

Background

[3] Mr Samson has a sustained history of both EBA and disqualified while driving offending, as the following bullet point chronology reveals:

·13 January 2006 – Excess breath alcohol, 867 mcg/L; (Disqualified from driving for 6 months)

·13 November 2009 – Excess breath alcohol, 779 mcg/L; (Disqualified from driving for 6 months)

· 26 February 2010 –
Driving while disqualified;

(Disqualified from driving for 6 months)

·

14 April 2010

–

Driving while disqualified;

(Disqualified from driving for 6 months)

·

23 December

2010

–

Driving while disqualified (x3);

(Community detention, disqualified from driving for

1 year)

·

21 January

2011

–

Excess breath alcohol, 706 mcg/L;

(Community detention, indefinite disqualification)

·

20 September

2011

–

Driving while disqualified

(Three months’ home detention; disqualified for one

year);

·

27 December

2011

–

Driving while disqualified

(Three months’ home detention; disqualified for one

year);

·

27 December

2011

–

Excess breath alcohol, 585 mcg/L

(Three months’ home detention; Disqualified for one

year);

· 30 November 2012 – Driving while disqualified
(Three months’ home detention; disqualified for one
year from 27 February 2013).

[4] The facts of the present offending are described by Judge Mather in the

District Court as follows:

… On 29 June last year you drove a vehicle at high speed up Great North Road in Henderson attracting the attention of a police officer parked in a car nearby. The officer went to your address where you drove in and, as I found on his evidence, the officer saw you getting out of the car. You were impaired by alcohol and you were breath-tested. Your breath alcohol reading was 729 which is nearly twice the legal limit.

[5] Judge Mather adopted a cumulative approach to sentencing, though he regarded the EBA offending as more serious because it was Mr Samson’s fifth EBA offence and because his breath alcohol reading was nearly twice the alcohol limit. A starting point of 20 months and 18 months was adopted for the EBA and driving while disqualified offending respectively, leaving a cumulative sentence of 38 months. The starting point was then…

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 Samson v Police

Details

AGLC: Samson v Police [2015] NZHC 748
Case: [2015] NZHC 748
Decision Date: 17 April 2015

CaseChat Overview and Summary

Jarred Samson appeals against his sentence for excess breath alcohol (EBA) and driving while disqualified. Mr Samson has a persistent history of driving related offending. The District Court Judge adopted a cumulative approach to sentencing, though he regarded the EBA offending as more serious because it was Mr Samson's fifth EBA offence and because his breath alcohol reading was nearly twice the alcohol limit. A starting point of 20 months and 18 months was adopted for the EBA and driving while disqualified offending respectively, leaving a cumulative sentence of 38 months. The starting point was then reduced by 12 months, having regard to Mr Samson’s stable work and family life, resulting in an end sentence of 26 months’ imprisonment. Ms Penrose for the appellant challenges the sentence on the following key grounds: (a) the sentence was manifestly excessive; (b) the Judge took into account irrelevant considerations, namely the level of alcohol reading and the speed of driving; (d) a cumulative approach was markedly out of proportion; (e) inadequate recognition was given to Mr Samson’s recent compliance; and (f) home detention should be considered. Ms Gibson for the Police responds that (in summary): (a) the starting points adopted were within range, citing Spooner v Police; (b) an end sentence of 26 months is within range, having regard to Himiona v Police and Koopu v Police; and (d) home detention is not appropriate given that it failed to deter Mr Samson from repeat offending, and Mr Samson also has multiple convictions for breaching court orders. Justice Whata found that the 20 month starting point for the EBA offending appears excessive. The starting point for disqualified driving was also excessive. The Judge allowed a very generous discount of 12 months or nearly one-third of sentence. A cumulative sentence can and, in the view of Justice Whata, should be imposed for this type of offending. Applying his assessment of the components parts of the sentence, he arrived at starting point in the order of 24–30 months, less a discount of 15–20 per cent or 3–6 months, resulting in an end sentence of 19–25 months. On that basis the Judge’s assessment is within a supportable arithmetic range. However, Justice Whata found the end sentence manifestly excessive. The appeal is accordingly allowed and the sentence of imprisonment of 26 months is substituted with a sentence of 16 months on each of the charges, to be served concurrently. Justice Whata also considered that a special condition should be imposed pursuant to s 93(2) of the Sentencing Act 2002.

Orders