Stuart v Police - [2015] NZHC 2570

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2015-425-42 [2015] NZHC 2570

BETWEEN
JEREMY DAVID STUART

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 20 October 2015

Appearances:

H Cuthill for Appellant
M G McClenaghan for Respondent

Judgment:

20 October 2015

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

STUART v NEW ZEALAND POLICE [2015] NZHC 2570 [20 October 2015]

[1] Mr Stuart pleaded guilty in the District Court to a charge of driving with excess breath alcohol. On 25 August 2015, Judge Callaghan sentenced Mr Stuart to
200 hours of community work and disqualified him from driving for a period of 15 months.1 In addition, he sentenced Mr Stuart to nine months supervision with special conditions. Mr Stuart appeals the period of disqualification that the Judge imposed. He contends that it was manifestly excessive having regard to all relevant circumstances.

The facts

[2] The facts giving rise to the offence are unremarkable. At 2.08 am on 3 July

2015, Mr Stuart was driving a vehicle in Invercargill. When spoken to by police, he was seen to be affected by alcohol. A breath screening test proved positive, and an evidential breath test produced a result of 498 micrograms of alcohol per litre of breath.

[3] The charge was laid in its aggravated form because Mr Stuart has two previous convictions as an adult for driving with excess breath alcohol. In addition, he has two previous convictions for similar offending when he was less than 20 years of age. Those offences are not relevant for the purposes of the charge in its aggravated form, but they are obviously relevant to the overall sentence to be imposed.

The appeal

[4] Mrs Cuthill submits that the offending was clearly at the lower end of the spectrum having regard to the breath alcohol reading. She acknowledges the fact of Mr Stuart’s previous convictions, but points out that the last of these was in 2007. None of the readings in relation to previous offending was particularly high. They range from between 400 and 693 micrograms of alcohol per litre of breath.

[5] Mrs Cuthill has referred me to the judgment of the Court of Appeal in R v Stone.2 In that case the Court of Appeal reproduced a graph showing the periods of disqualification imposed for recidivist offending of this type over a range of District and High Court decisions. She contends that this demonstrates that a person having three relevant convictions could expect a period of disqualification of around 12 to
13 months. She also emphasises that there was nothing about Mr Stuart’s driving to give cause for concern. As a result, she submitted that the Judge imposed a period of disqualification that was excessive having regard to relevant circumstances.

Decision

[6] The period of disqualification cannot be viewed on its own. It must be seen as being part and parcel of the overall sentence imposed by the Judge.

[7] The Judge observed that Mr Stuart would ordinarily be a candidate for…

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 Stuart v Police

Details

AGLC: Stuart v Police [2015] NZHC 2570
Case: [2015] NZHC 2570
Decision Date: 20 October 2015

CaseChat Overview and Summary

In Stuart v Police, the appellant, Jeremy David Stuart, appealed against the sentence imposed by Judge Callaghan in the District Court. Stuart was sentenced to 200 hours of community work, disqualified from driving for 15 months, and subjected to nine months of supervision with special conditions after pleading guilty to driving with excess breath alcohol. Stuart's primary contention on appeal was that the 15-month driving disqualification was manifestly excessive, considering all relevant circumstances. The case was heard in the High Court of New Zealand, Invercargill Registry, with H Cuthill appearing for the appellant and M G McClenaghan for the respondent.

The legal issues that the court needed to decide included whether the period of disqualification was manifestly excessive and if the overall sentence was proportionate to the offence, taking into account Stuart's previous convictions and other mitigating factors. The court also had to consider whether the sentence was within the range of similar cases, as demonstrated by the previous judgments cited by both parties.

The court, Lang J, examined the period of disqualification within the context of the overall sentence. Lang J acknowledged that the offence was at the lower end of the scale in terms of the breath alcohol reading but noted that this was Stuart's fifth conviction for driving with excess breath alcohol. The court also considered Stuart's employment situation and the fact that his job provided his residence, which made an electronically monitored sentence unfeasible. Lang J concluded that although the period of disqualification might be towards the upper end of the scale, it was not manifestly excessive when considering the other aspects of the sentence. The court found that the period of disqualification was within the range imposed in similar cases.

The appeal against the sentence was dismissed. The court found that the Judge had carefully constructed the sentence, balancing the need for punishment with consideration of Stuart's personal circumstances.

Orders