Swenson v Police - [2016] NZHC 1625

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-0000187 [2016] NZHC 1625

BETWEEN
MURRAY WILLIAM SWENSON

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 18 July 2016

Appearances:

T Beach for Appellant
S Navot for Respondent

Judgment:

18 July 2016

JUDGMENT OF VENNING J

Solicitors: Meredith Connell, Auckland
Presland & Co, Auckland

Copy to: T Beach, Auckland

SWENSON v NEW ZEALAND POLICE [2016] NZHC 1625 [18 July 2016]

[1] Following a defended hearing Mr Swenson was convicted on charges of driving with excess breath alcohol (third and subsequent time), dangerous driving and assault on a police officer.1 On 8 June 2016 Judge P J Sinclair in the District Court at North Shore sentenced Mr Swenson to 18 months’ imprisonment reserving him leave to apply for home detention at a monitored facility such as Odyssey House.2 The Judge disqualified Mr Swenson for a period of two years on the breath alcohol charge and one year for the dangerous driving. The effective term of disqualification was two years.

[2] Mr Swenson appeals. He submits:

(a) the starting point the Judge took for sentence of 18 months for the driving with excess breath alcohol was manifestly excessive compared to the case of Clotworthy v New Zealand Police.3 Counsel also supported that submission by reference to a number of other decisions, including Samson v New Zealand Police, Hollingum v New Zealand Police and Koopu v New Zealand Police;4

(b)post charge delay in the proceedings should have led to a reduction in the sentence;

(c) greater weight should have been given to the gaps between the offending;

(d) the uplifts for the other offending were not justified; and

(e) home detention should have been imposed.

[3] It is sought to allow the appeal, vacate the sentence of 18 months and replace it with an adjusted sentence of home detention.

1      R v Swenson [2016] NZDC 7715.
2      R v Swenson ]2016] NZDC 10581.
3      Clotworthy v New Zealand Police (2003) 20 CRNZ 439 (HC).
4      Samson v New Zealand Police [2015] NZHC 748; Hollingum v New Zealand Police [2016] NZHC 1291; and Koopu v New Zealand Police [2013] NZHC 1356.

The approach to the appeal

[4] In Tutakangahau v R the Court of Appeal confirmed s 250(2), Criminal Procedure Act 2011 was not intended to change the previous approach taken by the courts to appeals against sentence.5 While there is no express reference to manifestly excessive the principle is well ingrained in the approach of the Courts to sentence appeals. The appeal proceeds on the basis that it is necessary for the appellant to show the Court that the Judge erred.

Discussion

[5] The maximum penalty for a third or subsequent offence is two years imprisonment or a $6,000 fine. I accept counsel for the respondent’s submission that the amendment and the increase in penalties in the 1999 legislation demonstrates a clear Parliamentary intention that offenders such as the appellant, who are convicted of third or subsequent offences 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 Swenson v Police

Details

AGLC: Swenson v Police [2016] NZHC 1625
Case: [2016] NZHC 1625
Decision Date: 18 July 2016

CaseChat Overview and Summary

In the case of Swenson v Police, the appellant, Mr Swenson, appealed against his conviction and sentence on charges of driving with excess breath alcohol (third and subsequent time), dangerous driving, and assault on a police officer. Mr Swenson argued that the starting point for the sentence for driving with excess breath alcohol was manifestly excessive, the post-charge delay in the proceedings warranted a reduction in the sentence, the gaps between the offending should have been given greater weight, the uplifts for the other offending were not justified, and home detention should have been imposed instead of imprisonment. The court considered the arguments and examined the relevant legal principles.

The court noted that the maximum penalty for a third or subsequent offence of driving under the influence of alcohol is two years imprisonment or a $6,000 fine. The court held that imprisonment for recidivist offending is now the usual consequence, if not inevitable, and that the appellant's eighth conviction, combined with the significant level of alcohol involved, the dangerous driving, and the assault on the police officer, justified a starting point of 17 months imprisonment. The court also noted that the appellant was resistant to engaging in rehabilitation to address or assess his offending, which made home detention an unsuitable option.

The court concluded that the end sentence of 18 months imprisonment for all the offences was within range and not manifestly excessive. The court further held that the appellant's arguments for home detention were not persuasive, given the serious recidivist nature of the offending and the content of the pre-sentence report. The court dismissed the appeal and confirmed the original sentence.

In conclusion, the court found that the District Court Judge had appropriately considered the factors relevant to sentencing and had imposed a sentence that was within the appropriate range for the appellant's offending. The court held that the appellant had not demonstrated that the Judge had erred in imposing the sentence, and therefore the appeal was dismissed. The original sentence of 18 months imprisonment, with the option of home detention subject to certain conditions, was confirmed.

Orders