Thwaites v Police - [2014] NZHC 642

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2013-412-000035 [2014] NZHC 642

JOHN MICHAEL THWAITES

v

NEW ZEALAND POLICE

Hearing: 2 April 2014

Appearances: R D Checketts for Appellant
M J Grills for Respondent

Judgment: 2 April 2014

JUDGMENT OF DUNNINGHAM J

[1] This is an appeal against a sentence of 14 months imprisonment and

18 months disqualification imposed on a charge of driving with excess blood alcohol on the third or subsequent occasion.

[2] The sole ground of appeal is that the end sentence of 14 months imprisonment is out of step with the range of sentences for this type of offending as discussed in the High Court’s decision in Clotworthy v Police1. As a result, the end sentence is manifestly excessive. I note that the period of disqualification of 18 months is not challenged.

[3] The circumstances in which the offence took place were fully described in the District Court Judge’s sentencing notes. Mr Thwaites, on 9 September 2013, was driving a campervan which broke down. He tried to clutch start it. Unfortunately he
ended up losing control and rolling the van. The police were called and Mr Thwaites

1 Clotworthy v Police (2003) 20 CRNZ 439 (HC).

THWAITES v NEW ZEALAND POLICE [2014] NZHC 642 [2 April 2014]

subsequently had a blood test that showed a level of 200 milligrams of alcohol per

100 millilitres of blood. The legal limit was 80, so it was obviously a high reading.

[4] Importantly, this is the eighth conviction for excess blood alcohol offending for Mr Thwaites. He has seven previous convictions beginning in 1975 and continuing throughout the late seventies, eighties and nineties with the last conviction being in 2000.

[5] The Judge discussed the 10 factors which are set out in Clotworthy and counsel is generally agreed on his assessment of those factors, except on two points. In terms of the breadth or alcohol level, it is agreed that is high. In terms of the length of time that has elapsed since the last drink driving conviction, it is accepted that it is a long gap and that works in the appellant’s favour.

[6] This is not a case where there has been a recent conviction for two or more drink driving offences in close succession. In terms of the manner of driving, it is noted by the appellant that only he was in the van, it was on a country road and, it was a low speed crash and did not involve any other vehicles. However, it is noted in the respondent’s submissions that it did result in him losing control on State Highway 85 and rolling the van, but implicitly it was a more serious type of accident than perhaps the appellant’s counsel suggests.

[7] The offender was not disqualified or forbidden from driving at the time, so this does not contribute to the end sentence. It is also agreed by all parties that an early guilty plea was entered and that a full…

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 Thwaites v Police

Details

AGLC: Thwaites v Police [2014] NZHC 642
Case: [2014] NZHC 642
Decision Date: 2 April 2014

CaseChat Overview and Summary

John Michael Thwaites appealed against a 14-month imprisonment and 18-month disqualification sentence imposed by the District Court for driving with excess blood alcohol on the third or subsequent occasion. The sole ground of appeal was that the 14-month imprisonment sentence was manifestly excessive compared to the range of sentences for this type of offending as discussed in the High Court's decision in Clotworthy v Police. The period of disqualification was not challenged.

The legal issue before the Court was whether the 14-month imprisonment sentence was manifestly excessive. The Court considered the 10 factors set out in Clotworthy, including the alcohol level, length of time since the last conviction, manner of driving, and the offender's response to previous sentences. The Court noted that the sentence was at the high end of the range discussed in Clotworthy, but that public attitudes to drink driving had firmed since then. The Court concluded that the sentence was not manifestly excessive and dismissed the appeal.

The Court's reasoning was based on the fact that the offender had a history of excess blood alcohol offending, with eight convictions dating back to 1975. The Court considered the mitigating factors, including the fact that the offender had not driven since 2000, had taken steps to address his drinking problem, and had shown remorse. However, the Court gave little weight to these factors and considered that the sentence was appropriate given the offender's history and the public attitudes towards drink driving.

The final orders of the Court were that the appeal was dismissed and the sentence of 14 months imprisonment and 18 months disqualification would stand.

Orders