Suckling v Police - [2019] NZHC 463

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2018-409-000109

[2019] NZHC 463

BETWEEN MARSHALL RAEBURN GARRY SUCKLING
Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 12 March 2019

Appearances:

S Teki-Clark for Appellant

J H Whitcombe for Respondent

Judgment:

15 March 2019

JUDGMENT OF GENDALL J

Introduction

[1] The appellant, Marshall Suckling, pleaded guilty to one charge of driving with excess blood alcohol causing injury. He was sentenced by Judge Garland on 1 November 2018 to six months’ community detention, 100 hours’ community work. He was also ordered to pay approximately $3,800 in reparation to the victim and disqualified from driving for one year and one day. Mr Suckling appeals this sentence on the basis that he says it is manifestly excessive.

Facts

[2] On the morning of 22 December 2017, the appellant was driving a motor vehicle on Aylesbury Road, Burnham. He approached an intersection with State Highway 1. The appellant failed to stop at the stop sign and proceeded into the

SUCKLING v NEW ZEALAND POLICE [2019] NZHC 463 [15 March 2019]

intersection at approximately 80 km/h. The appellant’s vehicle struck the front left- hand side of the victim’s vehicle, which was travelling in a northerly direction. A blood sample was taken from the appellant at the hospital and upon analysis was found to contain 139 mg of alcohol per 100 ml of blood.

[3] As a result of the collision, the victim was hospitalised with serious injuries. These included a fractured sternum, ruptured bowel, lacerated head wound, fractured ribs and multiple soft tissue wounds. In his victim impact statement, the victim adds that he is continuing to receive physiotherapy for serious whiplash and neck pain. He suffers from rib and chest pain which seriously affects his sleeping. He has had some 46 days off work and a further eight weeks on light duties, and has lost a considerable amount of income as a consequence. The victim also states that his partner would usually travel with him to work, and it was only a coincidence that on the day of the collision she decided to take her own car. Had she been in the victim’s car she would have worn the major impact on the left-hand side.

[4] The appellant has no prior history of offending. A screening test supports his assertion that alcohol does not usually play a big part in his life. He has freely admitted that he was entirely at fault and presents as genuinely remorseful. He wished to meet with the victim face-to-face to apologise. He has agreed to pay a total sum of a further
$57,400 in reparation, being $8,500 to the victim’s insurance company for the car,
$10,000 to the local authority for damage done to the lamp post and the transformer,
$2,400 for a deer fence and $36,500 in relation to his employer’s vehicle.

District Court decision

[5] In his sentencing decision in the District Court, Judge Garland noted that the maximum penalty…

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 Suckling v Police

Details

AGLC: Suckling v Police [2019] NZHC 463
Case: [2019] NZHC 463
Decision Date: 15 March 2019

CaseChat Overview and Summary

The appellant, Marshall Suckling, appealed against his sentence for driving with excess blood alcohol causing injury. The appellant was sentenced by Judge Garland to six months' community detention, 100 hours of community work, a reparation payment of approximately $3,800 and a disqualification from driving for one year and one day. The appellant argued that the sentence was manifestly excessive because the starting point was too high, insufficient weight was given to mitigating features, and the final sentence imposed was not the least restrictive outcome appropriate in the circumstances. The respondent argued that the starting point adopted by the Judge was correct, that sufficient weight was given to mitigating features, and that the sentence imposed was appropriate.

The court found that the starting point adopted by Judge Garland was in line with other similar cases. The court also found that the Judge had properly taken into account all the available mitigating factors when deciding to impose a less onerous sentence than imprisonment or home detention. The court concluded that there had been no error on the part of Judge Garland in the sentence he had imposed, and that the sentence was appropriate and entirely within the range that can be justified by accepted sentencing principles. The appeal against sentence was dismissed.

The court's reasoning and outcome demonstrate the importance of considering all relevant factors when imposing a sentence, including the starting point, mitigating features, and the purposes and principles of sentencing. The court also emphasises the need to ensure that any sentence imposed is appropriate and not manifestly excessive.

Orders