Verbitsky v Police - [2016] NZHC 2843

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2016-409-000119 [2016] NZHC 2843

BETWEEN
JORDAN VERBITSKY

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 22 November 2016

Appearances:

C Nolan and J Lucas for Appellant
E Henderson and B Hawes for Crown

Judgment:

28 November 2016

JUDGMENT OF DUNNINGHAM J

[1] In the early hours of 28 May 2016, the appellant, Mr Verbitsky, was caught driving with excess breath alcohol. At the time he was also driving while disqualified. He was charged on both matters, with the EBA charge laid in its aggravated form, it being his third offence of this kind. A further charge was also
laid in respect of a failure to appear while on bail on 11 July 2016.1

[2] In a decision dated 21 October 2016,2 the appellant was sentenced by Judge Roberts to nine months’ imprisonment with special release conditions for six months.

[3] The appellant appeals his sentence on the basis that it was manifestly excessive, and was not the least restrictive outcome appropriate in the circumstances.

1 In respect of this charge, the appellant was convicted and discharged.
2 Police v Verbitsky [2016] NZDC 20981.

Background to the offending

[4] The charges arose when, at 2:34 am, Mr Verbitsky was driving on Tuahiwi Road, north of Christchurch. He was disqualified from driving at the time. He cut the corner when making a right turn and narrowly missed a parked police vehicle. He was then observed driving erratically and was stopped by the police.

[5] Mr Verbitsky initially gave false particulars, but later confirmed his identity to the police. He also denied the seriousness of his offending, maintaining that the parked police car was in the wrong, and that, despite having fogged up windows, he “knew the road” and could drive. An evidential breath alcohol reading of 470 mcg/L was taken.

Principles on appeal

[6] This is an appeal against sentence and therefore must be determined in accordance with s 250 of the Criminal Procedure Act 2011. Specifically, this Court may only allow an appeal against sentence if it is satisfied that there has been an error in the imposition of the sentence, and that in the event, a different sentence
should be imposed.3

[7] If the sentence under appeal may be properly justified having regard to the relevant sentencing principles, it is not the place of this Court to intervene and substitute its own views for those of the sentencing Judge. It is only if the sentence is “manifestly excessive” that the Court should interfere with the exercise of the Judge’s discretion. Importantly, as was said in Larkin v Ministry of Development:4

[26] The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.

The District Court decision

[8] The Judge canvassed a range of factors…

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 Verbitsky v Police

Details

AGLC: Verbitsky v Police [2016] NZHC 2843
Case: [2016] NZHC 2843
Decision Date: 28 November 2016

CaseChat Overview and Summary

In Verbitsky v Police, the appellant, Mr. Verbitsky, was sentenced to nine months' imprisonment by the District Court, with special release conditions for six months, following his third offence of driving with excess breath alcohol. Mr. Verbitsky appealed the sentence, arguing it was manifestly excessive and that the court should have imposed the least restrictive outcome appropriate in the circumstances, namely home detention. The High Court considered the appellant's grounds of appeal, including the appropriateness of the starting point for sentencing, the weight given to mitigating features of the offending, and the court's failure to consider imposing the least restrictive outcome. The court found that the sentence was not manifestly excessive, but did find that the District Court erred by not considering whether to grant leave for the appellant to apply for home detention if a suitable residence was found. The High Court granted leave for the appellant to apply for cancellation of the sentence of imprisonment and substitution of home detention if a suitable residence is found. The sentence remains otherwise unchanged.

Orders