Soper v Police - [2015] NZHC 2555

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2015-425-33 [2015] NZHC 2555

BETWEEN
REGAN KEVIN SOPER

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 19 October 2015

Appearances:

T Williams for Appellant
M McClenaghan for Respondent

Judgment:

19 October 2015

(ORAL) JUDGMENT OF LANG J [on appeal against sentence]

SOPER v NEW ZEALAND POLICE [2015] NZHC 2555 [19 October 2015]

[1] Mr Soper pleaded guilty in the District Court to charges of driving with excess breath alcohol and driving whilst disqualified. On 8 July 2015, Judge Callaghan sentenced him to 18 months imprisonment.1 Mr Soper appeals to this Court on the basis that the Judge imposed a sentence that was manifestly excessive.

The facts

[2] The facts giving rise to the offending are unremarkable. At about 4.25 am on

4 April 2015, Mr Soper was driving a motor vehicle in Gore. When a police patrol vehicle stopped him, he got out of his vehicle and began walking towards the patrol car. The officers in the patrol car immediately observed that he was affected by alcohol. When questioned, he admitted that he had been drinking throughout the night and that he was driving whilst disqualified. A subsequent evidential breath test revealed that Mr Soper’s breath contained 1018 micrograms of alcohol per litre of breath.

The Judge’s decision

[3] The Judge took a starting point of 21 months imprisonment in respect of both charges. He did so on the basis that this was Mr Soper’s eighth conviction for driving with excess breath or blood alcohol and his sixth conviction for driving whilst disqualified. As a result, both charges had the aggravating factor of being the third or subsequent occasion on which Mr Soper had been convicted of that type of offending.

[4] The Judge then applied an uplift of three months to reflect Mr Soper’s previous convictions. This produced an end sentence of 24 months imprisonment before taking into account mitigating factors. The Judge gave Mr Soper a credit of six months, or 25 per cent, to reflect his early guilty pleas. This produced the end
sentence of 18 months imprisonment.

1 Police v Soper [2015] NZDC 13102.

The case on appeal

[5] Ms Williams submits that the Judge erred in several respects in imposing the sentence of 18 months imprisonment. First, she submits that the Judge should not have applied an uplift of three months to reflect Mr Soper’s previous convictions. She contends that the Judge must already have taken that factor into account when selecting a starting point of 21 months imprisonment.

[6] Next, Ms Williams submits that the Judge failed to take into account additional mitigating factors. These include the fact that Mr Soper acknowledged to the writer of the pre-sentence report that he was an alcoholic and that he cannot drink. In addition, he had contacted the Bridge Programme prior to sentencing and made preliminary enquiries as to how to rejoin the programme. It appears that Mr Soper has attended the Bridge Programme on at least two previous…

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 Soper v Police

Details

AGLC: Soper v Police [2015] NZHC 2555
Case: [2015] NZHC 2555
Decision Date: 19 October 2015

CaseChat Overview and Summary

In the High Court of New Zealand, Invercargill Registry, Regan Kevin Soper appealed against his sentence imposed by the District Court, arguing that it was manifestly excessive. The appeal was heard on 19 October 2015, and the oral judgment was given by Lang J on the same day. The respondent was represented by M McClenaghan, and the appellant was represented by T Williams. Mr Soper had pleaded guilty to charges of driving with excess breath alcohol and driving while disqualified, and was sentenced to 18 months imprisonment. The appellant's counsel submitted that the Judge erred in imposing the sentence, firstly by applying an uplift of three months to reflect Mr Soper's previous convictions, and secondly by failing to take into account additional mitigating factors.

The court considered the appellant's submissions and found that the Judge had indeed erred in applying the uplift of three months to reflect previous convictions, as it amounted to double-counting. However, the court found that the Judge was entitled to select a starting point of 21 months imprisonment, given the appellant's serious offending history, including numerous previous convictions for similar offences. The court found that the appellant's offending had several seriously aggravating factors, including a high breath alcohol reading and a history of failing to be deterred by previous penalties. The court also found that while the appellant had made some efforts to address his alcoholism, it was not sufficient to justify a further discount on his sentence.

The court concluded that an appropriate starting point was 21 months imprisonment, from which a discount of six months should be allowed for the appellant's early guilty pleas. This produced an end sentence of 15 months imprisonment, which replaced the existing sentence of 18 months imprisonment. The ancillary orders made by the Judge were confirmed.

Orders