Smith v Police

[2012] NZHC 757

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2012-425-000003 [2012] NZHC 757

MATTHEW CHARLES SMITH

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         24 April 2012

Appearances: J K Fraser for Appellant

R W Donnelly for Respondent

Judgment:      24 April 2012

ORAL JUDGMENT OF CHISHOLM J

[1]      Having pleaded guilty to a charge of excess breath alcohol and a charge of causing sustained loss of traction the appellant was sentenced to 200 hours community work and disqualified from driving for 18 months.  He appeals against sentence primarily on the basis that the disqualification was manifestly excessive.

[2]      The  circumstances   are  that  the  appellant  lost  control  when   he  was undertaking a “burnout” in Invercargill.  His wheels were spinning.  He mounted the curb, crossed the footpath and completed a 360 degree spin.  After being located his breath alcohol was found to be 702 micrograms of alcohol per litre of breath.  He

admitted undertaking the burnout.

SMITH V NEW ZEALAND POLICE HC INV CRI-2012-425-000003 [24 April 2012]

[3]      He is 24 years of age with a previous conviction in 2006 for dangerous driving.

[4]      When imposing sentence the Judge noted that the appellant’s breath alcohol was nearly twice the limit and he considered that the “appalling” driving needed a stern penalty.  On the mitigation side, the Judge accepted that he had pleaded guilty, had been co-operative and had lost his job as a professional driver as a result of the offending.

[5]      This appeal is on the basis that the disqualification should have been in the region of 12 months.  Mr Fraser submitted that insufficient weight had been given to the loss of the appellant’s job which, he submitted, was accepted as a relevant factor in Graham v Ministry of Transport.[1]

[1] Graham v Ministry of Transport [1996], CRNZ 403.

[6]      Mr Fraser also referred to Martin v Police[2]  and Rogers v Police[3]  to support his proposition that the 18 months disqualification was excessive.  Both those cases involved a second conviction for drink driving.  In the first case, where the appellant had been dismissed following conviction, Hansen J reduced the disqualification to eight months.  In Rovers Woodhouse J reduced the disqualification from two years to

15 months.

[2] Martin v Police (HC) Auckland, CRI-2008-404-000044, 6 May 2008.

[3] Rogers v Police (HC) Hamilton, CRI-2009-419-000024, 24 July 2009.

[7]      For the respondent Mr Donnelly emphasised that it was necessary to take an overview of the offending.  While the disqualification was stern the community work was lenient.   Overall the sentence was not manifestly excessive.   The Judge had taken personal circumstances into account.   In cases of this nature a high level of deterrence is required.  Mr Donnelly questioned the guidance that can be provided by other cases.

[8]      All the matters raised by Mr Donnelly are, of course, relevant in an appeal of this nature, but I would not describe the 200 hours community work as lenient.  In this case the charges arose out of the same events.  While it is true that the appellant

had a previous conviction for dangerous driving, I have been persuaded that the

disqualification was manifestly excessive.  To my mind it did not sufficiently reflect that  the  appellant  lost  his  employment  as  a  driver  following  his  conviction. Moreover, it is difficult to reconcile the 18 months disqualification with the two cases cited by Mr Fraser. There needs to be consistency in sentencing.

[9]      Having been persuaded that the sentence of disqualification is manifestly excessive the issue is the extent to which it should be reduced.   Given that the appellant has a previous conviction for dangerous driving I doubt would be justified in  reducing  the  disqualification  to  12 months.    My  intention  is  to  reduce  it  to

15 months,  provided that such a reduction would not amount to tinkering.  Having considered that possibility I am satisfied that a three month reduction would be significant.

Result

[10]     The appeal is allowed.   The disqualification of 18 months is quashed and replaced with a disqualification of 15 months.  In other respects the sentence stands.

Solicitors:

John K Fraser Law Limited, 36 Don Street, Invercargill 9810

Preston Russell Law, P O Box 355, Invercargill 9840

Solicitors:

J K Fraser, P O Box 935, Invercargill

Preston Russell Law, P O Box 355, Invercargill 9840