Sands v Police - [2018] NZHC 3048

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2018-409-000110

[2018] NZHC 3048

BETWEEN
IAN CRAIG SANDS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 22 November 2018

Appearances:

N R Wham for Appellant

P A Norman for Respondent

Judgment:

23 November 2018

JUDGMENT OF GENDALL J

Introduction

[1] The appellant, Mr Sands, pleaded guilty to a charge of driving with excess breath alcohol (third or subsequent). On 2 November 2018, Judge Garland sentenced him to 17 months’ imprisonment and two year’s disqualification from holding or obtaining a driver’s licence. He also granted the appellant leave to apply for home detention if that could be served at a residential treatment facility.

[2] The appellant appeals against both the length of the sentence imposed and the refusal to grant home detention on the conditions outlined in the PAC report.

Background

[3] At around 11.30 pm on 14 February 2018, the appellant was found in the driver’s seat of his vehicle. He had been revving the engine for a period of about five

SANDS v NEW ZEALAND POLICE [2018] NZHC 3048 [23 November 2018]

minutes which awoke local residents. They saw the appellant was heavily intoxicated and intervened. The appellant was required to undergo an evidential breath test. It returned a level of 1025 micrograms of alcohol per litre of breath.

[4] The appellant pleaded guilty but only on the morning of his trial. He has 12 previous convictions for drink driving between 1998 and 2012. The PAC report assesses him as being at a medium risk of reoffending and causing harm to others. The report writer recommended community detention and intensive supervision.

District Court decision

[5] Judge Garland noted that the appellant engaged well with the alcohol and drug assessment ordered. The appellant had described more than a decade of heavy and problematic drinking but with significant changes in recent years. He said that he was disappointed he had driven impaired because he thought he was under the limit to drive. The Judge noted that a driving change programme was available in early 2019 which may be of benefit to the appellant.

[6] It must be noted, as Judge Garland mentioned, that the appellant’s breath alcohol reading was over four times the legal limit. He said also, however, that there had been a gap of approximately six years between the present offending and the appellant’s most recent drink driving conviction.

[7] The Judge took a starting point of 20 months’ imprisonment and reduced it by 15 per cent, being three months for the late guilty plea. Judge Garland considered that home detention simpliciter was not appropriate here and did not satisfy the purposes and principles of sentencing. He noted that there was no proposal at the moment for the appellant to enter a residential treatment facility but gave leave for him to apply for home detention if that could be served at a residential treatment facility. The sentence he imposed of 17 months’ imprisonment…

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 Sands v Police

Details

AGLC: Sands v Police [2018] NZHC 3048
Case: [2018] NZHC 3048
Decision Date: 23 November 2018

CaseChat Overview and Summary

Sands v Police is an appeal against the length of sentence and refusal to grant home detention on the conditions outlined in the PAC report. The appellant, Mr Sands, pleaded guilty to a charge of driving with excess breath alcohol (third or subsequent). On 2 November 2018, Judge Garland sentenced him to 17 months’ imprisonment and two year’s disqualification from holding or obtaining a driver’s licence. He also granted the appellant leave to apply for home detention if that could be served at a residential treatment facility.

The appellant argued that the sentence was too long and that home detention was refused without sufficient justification. The respondent argued that the sentence was appropriate given the seriousness of the offence and the appellant’s previous record. The court found that the sentence was too long and that home detention could be appropriate if served in a supervised setting. The court reduced the sentence to 14 months’ imprisonment, but kept it as imprisonment unless a suitable supervised setting could be found.

The court found that the sentence was too long because the starting point of 20 months was too high, and the discount for the appellant’s guilty plea was too low. The court found that a starting point of 18 months was more appropriate, and that a discount of 15% was too high. The court found that a discount of 5% for rehabilitative prospects and personal circumstances was more appropriate, bringing the sentence down to 14 months.

The court found that home detention could be appropriate if served in a supervised setting, but that it was not appropriate to serve it in the appellant’s own home. The court found that the appellant’s issues with alcohol required a supervised setting to monitor his drinking and provide support. The court found that the purposes and principles of sentencing required a sentence of imprisonment, but that home detention could be appropriate if served in a residential facility.

The final orders were that the appellant’s sentence was reduced from 17 to 14 months’ imprisonment, but that it would remain one of imprisonment unless a properly supervised position in a residential treatment facility or an equivalent supervised arrangement became available. The two year disqualification from holding or obtaining a driver’s licence remained.

Orders