Sharp v Police - [2015] NZHC 791

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI 2015-443-015 [2015] NZHC 791

BETWEEN
BRENDON KEITH SHARP

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 21 April 2015

Counsel:

M Boyd for Appellant
N L Laird for Respondent

Judgment:

21 April 2015

(ORAL) JUDGMENT OF HEATH J

Solicitors:
Crown Solicitor, New Plymouth
Counsel:
J C Hannam, New Plymouth (M Boyd)

SHARP v NEW ZEALAND POLICE [2015] NZHC 791 [21 April 2015]

The appeal

[1] Mr Sharp appeals against sentences imposed in the District Court at New Plymouth on 13 March 2015, on charges of driving with an excess breath alcohol concentration and driving while suspended. Judge Roberts sentenced him to a period of imprisonment of eight months. He also disqualified Mr Sharp from holding or obtaining a driver licence for a period of 15 months and imposed special post-release conditions designed to deal with alcohol and drug related problems that the Judge
considered had to be addressed.1

The facts

(a) Driving with excess breath alcohol concentration

[2] So far as the driving with an excess breath alcohol concentration was concerned, that arose out of an incident at 4.15pm on 5 December 2014. At that time Mr Sharp was driving a vehicle north along State Highway 3, near Egmont Village. He was stopped for speeding. While speaking to a police officer, Mr Sharp admitted having consumed alcohol before driving. Following the completion of breath test procedures, a result of 557 micrograms of alcohol per litre of breath was obtained. The legal limit is 400 micrograms of alcohol per litre of breath.

[3] Mr Sharp has two previous convictions for driving with an excess breath alcohol. One was in 1996 and the other in 2012.

(b) Driving while suspended

[4] The driving while suspended charge arose out of an incident on 21 January

2015. At that time Mr Sharp was subject to a suspension as a result of the accumulation of demerit points, and was also on Court-ordered bail following appearances on the excess breath alcohol charge.

[5] The incident occurred at 6.30pm. Mr Sharp was driving his father’s motor

vehicle on Carrington Street, New Plymouth. Inquiries revealed that he was a

1 Police v Sharp [2015] NZDC 4069.

suspended driver. By this stage, he had appeared on two occasions before the

District Court on the excess breath alcohol charge.

[6] Mr Sharp has two prior convictions of driving while disqualified; the most recent of which occurred on 30 October 2000. The accumulation of demerit points to which I have referred resulted in Mr Sharp being suspended from driving a motor vehicle from 8 December 2014 until 4 March 2015.

[7] A separate issue arose at sentencing as to whether the vehicle that Mr Sharp was driving should be confiscated. After considering a statutory declaration from Mr Sharp’s father, no order was made. Nothing more need be said about that.

Personal circumstances

[8] Mr Sharp is 40 years old. He has appeared intermittently before the Courts between 1996 and…

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 Sharp v Police

Details

AGLC: Sharp v Police [2015] NZHC 791
Case: [2015] NZHC 791
Decision Date: 21 April 2015

CaseChat Overview and Summary

In the case of Sharp v Police, the appellant, Brendon Keith Sharp, appealed against the sentences imposed by the District Court at New Plymouth on charges of driving with an excess breath alcohol concentration and driving while suspended. The court was tasked with determining whether the District Court judge had exercised his discretion appropriately in sentencing Sharp to eight months imprisonment and whether the sentence was manifestly excessive. The court further considered whether the sentences should be commuted to home detention.

The court found that the District Court judge had appropriately exercised his discretion in not imposing home detention, given Sharp's history of reoffending, lack of insight, and untruthfulness during the probation interview. The court noted that Sharp had two prior convictions for driving with an excess breath alcohol concentration and two prior convictions for driving while suspended. The court also found that the aggravating factors, such as Sharp driving while suspended while on bail and presenting in a drunken state before the probation officer, were appropriate considerations in determining the sentence.

However, the court had some concerns about the length of imprisonment imposed. The court noted that the maximum penalty for driving with excess breath alcohol concentration and driving while suspended was two years imprisonment. The court found that a starting point of eight months imprisonment was appropriate in the circumstances, taking into account the credit for guilty pleas. However, the court found that the effective sentence should be six months imprisonment on the excess breath alcohol charge and four months imprisonment on the charge of driving while suspended, to be served concurrently.

The court allowed the appeal and set aside the sentences of imprisonment imposed on both charges. In substitution, the court imposed a period of imprisonment of six months on the excess breath alcohol charge and one of four months imprisonment on the charge of driving while suspended, to be served concurrently. All other aspects of the sentence under appeal stood.

Orders