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,…
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- AGLC
- Smith v Police [2025] NZHC 1009
- Case
- [2025] NZHC 1009
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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