Stonebanks v Police - [2016] NZHC 3093

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2016-425-40 [2016] NZHC 3093

IN THE MATTER of an appeal against sentence

BETWEEN

IAN CLIFFORD STONEBANKS Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 12 December 2016

Appearances:

K M Barker for Appellant
R W Donnelly for Respondent

Judgment:

16 December 2016

JUDGMENT OF NICHOLAS DAVIDSON J (APPEAL AGAINST SENTENCE)

Appeal against sentence

[1] Mr Stonebanks appeals against a sentence of home detention of six months and 21 days and a disqualification period of 20 months imposed on him in the Invercargill District Court on 25 October 2016.1

[2] The sentence and disqualification were imposed for his third and fourth drink-driving offences, and two other driving offences, all committed on
12 August 2016.

[3] At 8.11pm on 12 August 2016 he drove with excess blood alcohol (third or subsequent), with a level of 127 milligrams of alcohol per 100 millilitres of blood.

1 Police v Stonebanks [2016] NZDC 21233.

He elected to have a blood test after returning a positive initial breath test, so was not charged with drink-driving that day. He was forbidden from driving for 12 hours.

[4] At 9.25pm on the same day he was stopped again, and found to have a level of 477 micrograms of alcohol per litre of breath. He was also charged with failing to stop for red/blue flashing lights, and failing to comply with the prohibition on driving, both of which are fineable offences.

[5] The learned District Court Judge adopted a global starting point of 18 months imprisonment and reduced this by 25 per cent for the guilty pleas, and then halved that to reach an end sentence of home detention for six months and 21 days.

Grounds of appeal

[6] Ms Barker, counsel for Mr Stonebanks, in carefully mounted submissions, referred to Clotworthy v Police,2 the judgment of Wild J which is often considered in sentencing for drink-driving cases. Issue is taken with the starting point, length of disqualification period, and imposition of home detention in lieu of community detention.

[7] Applying the measures set out in Clotworthy, Ms Barker referred to the alcohol levels and submitted they were relatively low in the scheme of drink-driving offending. It is six years since Mr Stonebanks’ last drink-driving offence in 2010 and 13 years since he was convicted for the same offence in 2003. Ms Barker put it that the sentences under appeal relate to offending (third and fourth convictions) within a large window.

[8] The second offence that evening is seriously aggravating. Ms Barker acknowledges this. Mr Stonebanks’ explanation that he made a snap decision to drive home so the vehicle could be parked up safely that night does not wash. Nor does the fact that he elected to have a blood test on the first occasion, and was under the misapprehension he would be under the legal limit. The fact is he was over the
legal limit, and he had been prohibited from driving.

2 Clotworthy v Police (2003) 20…

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.

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Details

Case: [2016] NZHC 3093
Decision Date: 16 December 2016

CaseChat Overview and Summary

Ian Stonebanks appeals against a sentence of six months and 21 days home detention and a disqualification period of 20 months imposed by the District Court. The sentence was imposed for three drink-driving offences and two other driving offences committed on 12 August 2016. Stonebanks drove with excess blood alcohol at 8.11pm, and was prohibited from driving for 12 hours. He was stopped again at 9.25pm and was found to have a level of 477 micrograms of alcohol per litre of breath. Stonebanks was also charged with failing to stop for red/blue flashing lights and failing to comply with the prohibition on driving. The District Court Judge adopted a global starting point of 18 months imprisonment, reduced it by 25 per cent for the guilty pleas and then halved it to reach the sentence of home detention for six months and 21 days. The appeal raises issues regarding the starting point, length of disqualification period, and the imposition of home detention in lieu of community detention. Stonebanks' counsel argues that the starting point was excessive and that the disqualification period was stern. The Crown submits that the sentence was within range applying accepted sentencing principles. The Court found that the starting point of 18 months was too high and that it was manifestly excessive. The Court considered that an overall end starting point of 12 months was appropriate, to encompass the two offences, the defiance of the prohibition against driving and the previous offending. The Court found that the imposition of home detention was within the Judge's discretion and that a shorter sentence of home detention was the appropriate sentencing outcome. The appeal is allowed and the sentence of six months and 21 days home detention is quashed and replaced with a sentence of four months and two weeks home detention. The special release conditions, imposition of the disqualification period and zero alcohol licence remain unaffected. The appeal against the period of disqualification is dismissed.

Orders