Smith v Police - [2017] NZHC 1616

IN THE HIGH COURT OF NEW ZEALAND
WHĀNGANUI REGISTRY

CRI-2017-483-000005 [2017] NZHC 1616

BETWEEN
JANINE MAREE SMITH

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 13 July 2017 (via AVL at Wellington)

Counsel:

R J Leith for Appellant
C B Wilkinson-Smith and N A Refoy-Butler for Respondent

Judgment:

13 July 2017

JUDGMENT OF COLLINS J

Introduction

[1] At 9.14 am on Sunday 8 January 2017, Ms Smith was stopped at a breath testing checkpoint in Foxton. She failed a breath screening test and elected to provide a sample of blood that produced a reading of 191 milligrams of alcohol per
100 millilitres of blood.

[2] Unfortunately, Ms Smith has had four previous convictions, between 2007 and 2014 for driving with excess breath/blood alcohol or refusing to provide a blood specimen. She also has two previous convictions for breaching home detention and community work conditions.

[3] On 14 June 2017, Ms Smith was sentenced to seven months’ imprisonment
by Judge Crayton in the Whānganui District Court and disqualified indefinitely from holding or obtaining a driver’s licence.1 She now appeals the decision to sentence

1 Police v Smith [2017] NZDC 12773.

SMITH v NEW ZEALAND POLICE [2017] NZHC 1616 [13 July 2017]

her to a term of imprisonment, arguing that she should have been sentenced to a period of home detention.

[4] This judgment explains why I am dismissing Ms Smith’s appeal. I am doing so on the basis that Judge Crayton made no appealable error in the approach he took or the sentence he imposed.

Background

[5] Ms Smith is 41 years old. She has two children aged 14 and 15, neither of whom live with her. She does provide financial assistance for her children. Ms Smith has worked in the hospitality industry for a number of years. She has a total of nine previous convictions.

[6] Ms Smith clearly has a significant issue with alcohol. She completed alcohol counselling in 2014 and in May 2017 referred herself for further alcohol rehabilitation assistance. Mr Thomson, a social worker at the Whānganui District Health Board has provided information about Ms Smith’s present circumstances and her efforts at rehabilitation.

[7] In the pre-sentence report, Ms Smith states that she believed she acted appropriately by not driving the night before she was apprehended and by leaving her car where she had been drinking until the following morning. The pre-sentence report records Ms Smith’s remorse was genuine but she was also assessed as being at a high risk of reoffending in a like manner and a high risk of harm to the community. Her ability to comply with a community-based sentence was assessed as being moderately low. The pre-sentence report writer recommended a sentence of imprisonment and this recommendation was not altered when a suitable address became available for home detention. That address is occupied by a friend of Ms Smith, who fully supports her serving a sentence of home detention instead of a sentence of imprisonment.

District Court decision

[8] Judge Crayton adopted a starting…

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 Smith v Police

Details

AGLC: Smith v Police [2017] NZHC 1616
Case: [2017] NZHC 1616
Decision Date: 13 July 2017

CaseChat Overview and Summary

Ms Smith appeals against a sentence of seven months imprisonment imposed by the District Court for driving while over the legal limit. Ms Smith, who has a history of drink driving and other convictions, was apprehended at a breath testing checkpoint and provided a blood sample that showed a reading of 191 milligrams of alcohol per 100 millilitres of blood. The District Court Judge, Judge Crayton, considered a sentence of home detention but ultimately concluded that the appropriate sentence was one of imprisonment, citing deterrence and denunciation, and the need to protect the public. Ms Smith appeals the sentence, arguing that she should have been sentenced to a period of home detention instead. The legal issues in this appeal concern whether the District Court Judge erred in his approach to sentencing or in the sentence he imposed.

The High Court found that the District Court Judge did not err in his approach or in the sentence he imposed. The Court noted that Ms Smith had previously been sentenced to imprisonment for similar offending, and that a sentence of imprisonment in this case could not be accurately described as being disproportionate. The Court also found that the District Court Judge had given Ms Smith credit for her rehabilitation efforts and had considered the relevant purposes and principles of sentencing, including deterrence, denunciation, and holding Ms Smith accountable for her offending. The Court concluded that the District Court Judge did not fail to take relevant considerations into account in exercising his discretion to decline home detention, and that Ms Smith's sentence of seven months' imprisonment should not be interfered with.

The appeal is dismissed.

Orders