Smith v Police - [2025] NZHC 1009

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE

CRI-2025-483-000011

[2025] NZHC 1009

BETWEEN
JOE-ANNE ELIZABETH SMITH

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 29 April 2025

Appearances:

J P Seal on behalf of J H C Waugh for Appellant A N Kearney for Respondent

Judgment:

30 April 2025

JUDGMENT OF PRESTON J

This judgment was delivered by me on 30 April 2025 at 12 .00 pm, pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar
Date……………

SMITH v NEW ZEALAND POLICE [2025] NZHC 1009 [30 April 2025]

Introduction

[1] Joe-Anne Smith pleaded guilty to driving with excess blood alcohol causing injury,1 and driving with excess blood alcohol (3rd or subsequent).2 She was sentenced to 15 and a half months’ imprisonment by Judge Marinovich in the District Court.3

[2] Ms Smith appeals. She says the Judge was wrong to decline to commute the sentence to home detention by under-weighing the rehabilitative purpose of sentencing, and that leave should have been granted to apply.4 The respondent opposes, arguing no error is disclosed and the sentencing approach was open to the judge in the particular circumstances of this case.

The offending

[3]The offending involves two incidents of drink driving 14 months apart.

[4] On 7 September 2023, Ms Smith was driving on SH1 when she failed to take a corner and crossed the centre line, colliding with an oncoming vehicle. The occupant of the vehicle sustained a sternal fracture, she has limited movement in her left shoulder following the crash. Ms Smith was transported to hospital following the crash to obtain a blood sample. The result of that sample was a blood concentration of 165 milligrams of alcohol per 100 millilitres of blood. Charges were laid in respect of this offending on 30 June 2024.

[5] On 5 November 2024, while awaiting sentence on the injuring charge, Ms Smith was drinking alcohol with an associate when an argument took place and Ms Smith left the address in her car. Her associate called the police who arrived shortly after. While police were at the address, Ms Smith returned in her car and admitted she had consumed alcohol. An evidential breath test gave a reading of

1      Land Transport Act 1998, s 61(1)(b) — maximum penalty five years’ imprisonment or $20,0000 fine.
2      Land Transport Act, ss 56(1) and 56(4) — maximum penalty two years’ imprisonment and   12 months’ disqualification.
3      Police v Smith [2024] NZDC 31088.
4      Ms Smith did not have an address at the time of sentencing. The Judge declined to adjourn sentencing to allow her to put forward an address.

588 micrograms of alcohol per litre of breath. This was Ms Smith’s third conviction for drink driving, having a previous conviction in 2013 for the same offence.

Victim Impact

[6] The victim struggles with being on the road since the accident. She says she is now “hyper-vigilant on the road, nervous about other drivers, the weather, road conditions, road works,…

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 [2025] NZHC 1009
Case: [2025] NZHC 1009
Decision Date: 30 April 2025

CaseChat Overview and Summary

Joe-Anne Smith appealed against her sentence of 15 and a half months’ imprisonment, imposed by Judge Marinovich in the District Court, for two drink-driving offences. The first offence, causing injury, occurred in September 2023, and the second, while awaiting sentencing for the first offence, occurred in November 2024. Ms Smith argued the Judge should have granted leave to apply for home detention and had under-weighed the rehabilitative purpose of sentencing. The Police opposed the appeal, arguing no error was disclosed in the sentencing decision.

The court considered whether the District Court Judge erred in declining to grant Ms Smith leave to apply for home detention. The Judge was concerned with the seriousness of the offending, the impact on the victim, and Ms Smith’s re-offending while awaiting sentence. The Judge also considered the purposes and principles of sentencing, including deterrence, denunciation, accountability, and rehabilitation. The Judge concluded that a sentence of imprisonment was the least restrictive sentence available and declined to grant leave to apply for home detention.

The High Court found that the District Court Judge undertook an evaluative assessment of the purposes and principles of sentencing and concluded that a sentence of imprisonment was the least restrictive sentence available. The High Court was not persuaded that the Judge had under-weighed the rehabilitative purpose of sentencing, or that he erred in declining to grant leave to apply for home detention.

The appeal was dismissed, and Ms Smith’s sentence of 15 and a half months’ imprisonment was upheld.

Orders