Schroder-Mann v Police - [2019] NZHC 152

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2018-409-000121

CRI-2018-409-000122 [2019] NZHC 152

BETWEEN
BENJAMIN SCHRODER-MANN

Appellant

AND

NEW ZEALAND POLICE

DEPARTMENT OF CORRECTIONS

Respondents

Hearing: 7 February 2019

Appearances:

C Nolan for Appellant

S Bicknell for Respondents

Judgment:

14 February 2019

JUDGMENT OF DUNNINGHAM J

Introduction

[1] On 2 November 2018 Judge Garland sentenced the appellant to 15 months' imprisonment on charges of driving with excess breath alcohol (3rd or subsequent); breaching a zero-alcohol licence; breaching Police bail; and breaching a sentence of community work. The appellant appeals that sentence on the ground that it is manifestly excessive.

Facts

[2] On 22 May 2018, Police stopped the appellant while driving. At the time he held a zero-alcohol licence. An evidential breath test returned a positive result of 838mg of alcohol per litre of breath. The appellant explained that he had been drinking

SCHRODER-MANN v NEW ZEALAND POLICE [2019] NZHC 152 [14 February 2019]

that night and a friend was sober driving. That friend was involved in a collision and not in a condition to drive. At that point, he made the decision to drive them home.

District Court decision

[3] Judge Garland outlined the facts relating to the appellant’s drink-driving offending, as set out above and noted that the appellant had six previous convictions for driving with excess breath alcohol. He had been issued a zero-alcohol licence on 1 July 2017, but acknowledged to his probation officer that he had driven after consuming alcohol on more than three occasions since then. He also acknowledged a problem with methamphetamine use. The Judge noted that the appellant had nearly
$20,000 in outstanding fines and so “the community-based approach had not worked”.

[4] The Judge adopted a starting point of 16 months' imprisonment for the excess breath alcohol and breach of zero alcohol licence. He then gave credit for guilty pleas, and an end sentence of 12 months was imposed on each of those two charges. He also disqualified him from driving for two years.

[5] In relation to the charge of breach of community work, the Judge took a one month starting point for that offending. He also granted the appellant’s application to cancel it and noted he therefore needed to be re-sentenced for the earlier charge of driving whilst suspended (third or subsequent) and adopted a three month starting point for that offence. From the combined four month sentence on those two charges, he gave a discount of one month for guilty pleas and the ten hours work already done.

[6]The end sentence imposed was 15 months' imprisonment.

[7] The Judge declined to impose a home detention sentence, noting that the appellant had “previously had the benefit of home detention and community based sentences” but that had failed to change his behaviour. He was not satisfied that another sentence of home detention would be likely to have any rehabilitative benefit.

Principles on appeal

[8] Appeals against sentence are allowed as of…

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 Schroder-Mann v Police

Details

AGLC: Schroder-Mann v Police [2019] NZHC 152
Case: [2019] NZHC 152
Decision Date: 14 February 2019

CaseChat Overview and Summary

In the case of Schroder-Mann v Police, the appellant, Benjamin Schroder-Mann, appealed against his sentence of 15 months' imprisonment, arguing it was manifestly excessive. The appellant had been convicted of driving with excess breath alcohol, breaching a zero-alcohol licence, breaching Police bail, and breaching a sentence of community work. The District Court Judge had sentenced the appellant to 15 months' imprisonment, rejecting a home detention sentence. The appellant argued that the starting point for the sentence was too high and that the Judge had failed to consider the possibility of home detention.

The High Court was required to decide whether the sentence was manifestly excessive and whether there was an error in the Judge's decision not to impose a home detention sentence. The Court needed to consider the aggravating and mitigating factors in the case, and whether the sentence fell within the appropriate range for such offending.

The Court found that the Judge had correctly identified the aggravating factors in the case, including the appellant's high level of intoxication while driving, the fact that he was on a zero alcohol licence at the time, and his history of six previous convictions for driving with excess breath alcohol. The Court held that a starting point within the range of 12 to 18 months was warranted in these circumstances. The Court also found that the total sentence on the charges of driving while disqualified and breach of community work was lenient, and that the Judge had correctly differentiated between the starting points for each charge. The Court held that the end sentence was within range and should not be interfered with on appeal. The Court also found no error in the Judge's decision not to impose a home detention sentence, as the Judge had considered, but rejected home detention due to the appellant's previous experience with such sentences and their lack of effect on his behaviour.

The appeal was dismissed, and the sentence of 15 months' imprisonment was upheld.

Orders