Stevens v Police - [2012] NZHC 871

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI 2011-470-0033 [2012] NZHC 871

BETWEEN CHANEL DESIRE STEVENS Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 30 April 2012

Counsel: A A M Schulze for Appellant
R W Jenson for Respondent

Judgment: 2 May 2012

JUDGMENT OF HEATH J

This judgment was delivered by me on 2 May 2012 at 10.00am pursuant to Rule 11.5 of the High
Court Rules
Registrar/Deputy Registrar

Solicitors:
Crown Solicitor, Tauranga
Lance Lawson, Rotorua

STEVENS V NEW ZEALAND POLICE HC TAU CRI 2011-470-0033 [2 May 2012]

The appeal

[1] On 21 December 2011, in the District Court at Tauranga, Judge Wolff sentenced Ms Stevens to a term of imprisonment of six months. Ms Stevens had previously entered pleas of guilty to charges of attempting to pervert the course of justice and driving with an excess breath alcohol concentration.

[2] The issue on appeal is whether the Judge was right to impose a sentence of imprisonment. Mr Schulze, for Ms Stevens, contends that the sentence was manifestly excessive and that a less restrictive outcome, home detention, ought to have been imposed.

Procedural background

[3] The appeal came before Duffy J, on 27 February 2012.1 During the course of argument the Judge expressed some concern about whether the District Court Judge may have fallen into error by failing to take account of the need to impose the least restrictive outcome. She said that the Judge had “not in the sentencing notes expressed any recognition of the principle that where the offender has not previously served a term of imprisonment, greater weight may be given to the statutory requirement to impose the least restrictive outcome”.2

[4] Duffy J adjourned the appeal, calling for a home detention report. On one view, the appeal might be regarded as part-heard. If that were the case, it would need to be relisted before that Judge. However, counsel have agreed that I should embark upon the appeal afresh, on the basis of the arguments originally put to Duffy J, which have been repeated before me. That course is not inconsistent with the approach that the Judge appears to have had in mind. She concluded her judgment by saying that the obtaining of a home detention report “should not be understood to
reflect how the appeal might possibly end”.3

1      Stevens v Police [2012] NZHC 293.
2      Ibid, at para [6], citing Tarrant v Police HC Palmerston North CRI 2007-454-10, 14 May 2007 (MacKenzie J), at para [10].
3      Stevens v Police [2012] NZHC 293 at para [12].

The facts

[5] At about 3am on Wednesday 16 March 2011, Ms Stevens was driving a motor vehicle along Bellevue Road, Tauranga. She was stopped for a roadside breath test. The test was positive and she was asked to accompany a police officer to the Tauranga police station to take an evidential breath test, blood test or both.

[6] When Ms Stevens was asked to give her personal details, she gave a false identity. She said…

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 Stevens v Police

Details

AGLC: Stevens v Police [2012] NZHC 871
Case: [2012] NZHC 871
Decision Date: 2 May 2012

CaseChat Overview and Summary

Chanel Desire Stevens appealed against a sentence of imprisonment imposed by the District Court at Tauranga. Ms Stevens had entered pleas of guilty to charges of attempting to pervert the course of justice and driving with an excess breath alcohol concentration. The issue on appeal was whether the District Court Judge was right to impose a sentence of imprisonment, as argued by Ms Stevens' counsel that the sentence was manifestly excessive and that a less restrictive outcome, home detention, ought to have been imposed. The appeal was heard by Heath J, who concluded that the District Court Judge's decision was not erroneous. The nature of Ms Stevens' conduct required a stern response, and imprisonment was necessary to hold her accountable for the harm done, denounce her conduct, and deter her and others from committing similar offences. The appeal was dismissed, and Ms Stevens was to begin her sentence of imprisonment at the Tauranga police station on 4 May 2012.

In reaching this conclusion, Heath J considered the hierarchy of sentences set out in the Sentencing Act 2002 and the circumstances in which home detention might be imposed in substitution for imprisonment. The Court of Appeal had previously established that the decision of whether to impose imprisonment or home detention involved a discretionary exercise engaging all the principles and purposes in sections 7 and 8 of the Sentencing Act. Heath J found that the District Court Judge had responded effectively to Ms Stevens' conduct, which, while not involving intimidating behaviour, had left an innocent person with a conviction against her name. This response was necessary to make it clear that conduct of this type would not be tolerated. As a result, the sentence was neither manifestly excessive nor inappropriate.

Orders