Sherley v Police - [2012] NZHC 1499

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-000129 [2012] NZHC 1499

MARK HAYDN MACKAY SHERLEY
Appellant
v

NEW ZEALAND POLICE
Respondent

Hearing: 25 June 2012

Counsel: S Cullen for Appellant
S McMullan for Respondent

Judgment: 25 June 2012

JUDGMENT OF ASHER J

Solicitors/Counsel:
S Cullen, PO Box 5708, Wellesley Street, Auckland 1141. Email: justis@xtra.co.nz
Crown Solicitor, DX CP24063, Auckland 1140. Email: sam.mcmullan@meredithconnell.co.nz

SHERLEY V NZ POLICE HC AK CRI-2012-404-000129 [25 June 2012]

[1] Mark Sherley appeals against the sentence imposed upon him by Judge

Dawson[1] for driving with excess blood alcohol and driving carelessly.

[1] NZ Police v Sherley DC North Shore CRI-2011-044-7916, 28 March 2012 at [10].

[2] His offending occurred at about 5pm on Wednesday, 2 November 2011. He was travelling east on Northcote Road and failed to successfully negotiate the stopping distance between him and the vehicle in front. He collided gently with the rear of that vehicle causing for all intents and purposes no damage. Unfortunately for him the vehicle was a police car. Mr Sherley was required to undertake a breath test procedure. The level was shown to be 1053 micrograms of alcohol per litre of breath. He entered pleas of guilty at an early stage.

[3] On the breath alcohol count he was convicted and fined $1,100 and ordered to pay court costs of $132.89. He was disqualified from holding or obtaining a driver licence for 12 months. He was also sentenced to nine months’ supervision and was ordered to undertake such counselling (including alcohol counselling and treatment) as decided by a probation officer. Mr Sherley was fined an additional
$300 on the careless driving charge.

[4] Mr Cullen for Mr Sherley submitted that the sentence was manifestly excessive, and that the sentence of supervision was made without a proper basis under s 46 of the Sentencing Act 2002. He submitted that there should have been no term of supervision imposed, and also that the period of disqualification of 12 months was unduly harsh. He did not contest the fines totalling $1,400.

[5] Mr McMullan for the respondent accepted that the sentence was stern. He submitted that the sentence of supervision was not primarily a punitive sentence and could be seen as aimed at assisting the offender. He argued that the end sentence
viewed as a whole was not out of proportion to the gravity of the offending.

[6] It is necessary by way of relevant background to say something more about

Mr Sherley, the facts of the offending, and the events that followed.

[7] Mr Sherley was not represented at the time he was sentenced. He now has experienced counsel, and has without objection filed an affidavit in this court. In it he sets out with clarity matters that may well not have been fully explained to the Judge on sentencing.

[8] Mr Sherley is pursuing a career in physiotherapy. On the night in question he had completed his final undergraduate examination and had been celebrating with friends. As he himself…

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 Sherley v Police

Details

AGLC: Sherley v Police [2012] NZHC 1499
Case: [2012] NZHC 1499
Decision Date: 25 June 2012

CaseChat Overview and Summary

Mark Haydn Mackay Sherley appealed against the sentence imposed by Judge Dawson for driving with excess blood alcohol and driving carelessly. The sentence included a fine of $1,100, an additional fine of $300 for careless driving, court costs of $132.89, a 12-month disqualification from holding a driver's licence, a nine-month term of supervision, and a requirement to undertake alcohol counselling and treatment. Sherley argued that the sentence was manifestly excessive and that the supervision term was imposed without proper basis under s 46 of the Sentencing Act 2002. The police accepted that the sentence was stern but argued that the supervision term was not punitive and was aimed at assisting the offender. The court found that the supervision term was not justified under s 46, and the 12-month disqualification period was excessive. The appeal was allowed, the sentence of supervision was quashed, and the 12-month disqualification period was reduced to nine months. The fines and court costs remained unchanged.

This case highlights the importance of transparency in the sentencing process and the need for courts to consider relevant sentencing factors, including personal aggravating or mitigating factors and any guilty plea. It also underscores the importance of satisfying the requirements of s 46 of the Sentencing Act 2002 before imposing a sentence of supervision.

Orders