Telfer v Police - [2012] NZHC 349

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2012-454-000005 [2012] NZHC 349

BETWEEN KAREN MARGARET TELFER Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 5 March 2012

Counsel: J A Younger for Appellant
M G Sinclair for Respondent

Judgment: 5 March 2012

ORAL JUDGMENT OF GENDALL J

[1] This is an appeal against an effective sentence of two years three months’

imprisonment imposed upon Ms Telfer in the District Court at Palmerston North on

15 December 2011, arising out of cumulative sentences for two charges of driving with excess breath alcohol and one charge of driving whilst the appellant’s licence was suspended.

[2] Orders were made imposing an indefinite period of disqualification from driving and of confiscation of Ms Telfer’s motor vehicle. Those consequential orders are not the subject of the appeal. The cumulative terms that were imposed by
Judge G M Ross were as follows:

for driving with excess blood alcohol on 24 October 2011, the appellant having been convicted at least twice previously of similar
offences – seven months’ imprisonment;

TELFER V NEW ZEALAND POLICE HC PMN CRI-2012-454-000005 [5 March 2012]

fordriving two days later, on 26 October 2011, with excess blood alcohol having been convicted at least twice previously – 13 months’
imprisonment cumulative; and

for driving on 26 October 2011 whilst the appellant’s driving licence

had been suspended– seven months’ cumulative imprisonment.

Accordingly, the total cumulative term was two years and three months’

imprisonment.

Background facts

[3] The background is that between 1987 and 2009 the appellant had been convicted on six occasions of driving with excess breath or blood alcohol. In addition, she had been convicted of three offences (drink driving related), namely refusing to accompany traffic officers and three of refusing an officer’s request to give blood specimens. She had two previous convictions for driving whilst disqualified or whilst her licence was suspended.

[4] On 24 October 2011 she was apprehended on State Highway 1 near Bulls driving a motor vehicle and a breath test disclosed she had 598 micrograms of alcohol per litre of breath. She was charged with that offence and forbidden from driving and was released on bail.

[5] Within two days, on 26 October 2011, she was stopped whilst driving in Palmerston North and had a very high breath alcohol reading, namely 1317 micrograms of alcohol per litre of breath. She must have been severely intoxicated. That is corroborated by the Judge’s notation that I see on the District Court Information Sheet on the first appearance on that day, the notation saying “defendant intoxicated in Court”.

[6] When it came to imposing sentence Judge Ross referred to the fact that the appellant had appeared many times on charges of “the drink drive kind or related charges [and] on my calculation these are the eleventh and twelfth convictions [but]

sometimes in earlier occasions there have been more than one conviction at the same time”.1 The Judge said that there were “10 previous drink drive charges”.2 He may have miscalculated that because…

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 Telfer v Police

Details

AGLC: Telfer v Police [2012] NZHC 349
Case: [2012] NZHC 349
Decision Date: 5 March 2012

CaseChat Overview and Summary

In the High Court of New Zealand, Karen Margaret Telfer appealed against the sentence imposed on her by the District Court at Palmerston North, which was an effective sentence of two years and three months' imprisonment. This arose from cumulative sentences for two charges of driving with excess breath alcohol and one charge of driving whilst her licence was suspended. Telfer was also subject to an indefinite period of disqualification from driving and confiscation of her motor vehicle, which were not the subject of the appeal.

The legal issues before the court were whether the cumulative sentences imposed on Telfer were manifestly excessive and whether the District Court Judge had erred in calculating the number of previous convictions and in applying discounts for the guilty plea and remorse. The court considered whether the starting points and the discounts applied by the District Court Judge were appropriate, and whether the cumulative sentence imposed was within the range of sentences that could be justified by the circumstances of the case.

The court held that the starting points taken by the District Court Judge were within the available range, but that the cumulative sentence imposed was manifestly excessive. The court found that the Judge had not erred in calculating the number of previous convictions, but that the allowance for the guilty plea and remorse could have been more conservative. The court reduced the term of imprisonment on the charge of driving whilst the licence was suspended to five months' imprisonment cumulative on the other two sentences. The effective end sentence was two years and one month imprisonment.

The court dismissed the appeal in part, reducing the term of imprisonment on the charge of driving whilst the licence was suspended to five months' imprisonment cumulative on the other two sentences. The effective end sentence was two years and one month imprisonment. The court found that the appellant would be eligible for parole after approximately eight months.

Orders