Watson v Police - [2015] NZHC 2652

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2015-409-72 [2015] NZHC 2652

BETWEEN
DWAYNE NEIL WATSON

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 22 September 2015

Appearances:

R Ward for the Appellant
KB Bell for the Respondent

Judgment:

28 October 2015

JUDGMENT OF DAVIDSON J

The appeal

[1] Mr Dwayne Watson appeals his sentence of imprisonment of two years, five months and fourteen days. He was sentenced by His Honour Judge Couch in the
Christchurch District Court on the following charges:1

(i) driving with excess breath alcohol charges); (third or subsequent) (two

(ii) (iii)

(iv)

dangerous driving;

failing to stop for Police;

driving while suspended; and

(v)

breach of police bail.

1 Police v Watson, [2015] NZDC 12368.

WATSON v NEW ZEALAND POLICE [2015] NZHC 2652 [28 October 2015]

[2] The appeal is advanced on several bases:

(i)that the starting points for the offences of driving whilst intoxicated were too high;

(ii) that the Judge failed to properly apply the totality principle;
(iii) that the personal mitigating features were not adequately recognised; (iv) that the court erred in failing to consider the availability of home

detention as the least restrictive outcome available.

Disposal of fourth ground of appeal

[3] It is apparent on the face of the record that the appeal against the failure to consider the availability of home detention is misconceived. Home detention is only available where the offender would otherwise be sentenced to a short term sentence of imprisonment (24 months or less). On the Judge’s analysis this essential gateway had not been passed. It was not jurisdictionally open to His Honour to consider home detention. The Court must not contrive a sentence to render home detention available.

[4] Should I find an error in the sentence on appeal, and decide a different sentence should be imposed, which is 24 months or less, then this Court must consider whether home detention would be the least restrictive sentence that would still meet the purposes and principles of sentencing.

Facts

[5] On 8 November 2014, Police stopped Mr Watson when he was driving on Waterloo Road, Christchurch. He returned a positive evidential breath test, then underwent a blood test. The result was 217 mg of alcohol per 100 ml of blood. The legal limit was then 80 mg of alcohol per 100 ml of blood so Mr Watson was about
2.7 times the legal limit, on the first charge of driving with excess blood alcohol

(third or subsequent). This was Mr Watson’s fifth such charge.

[6] At 11.15pm of Monday, 17 November 2014 Mr Watson was driving his vehicle and a large trailer on Colombo Street, Christchurch. The Police saw Mr Watson driving slowly and drifting over the centre line. The officer activated his red and blue lights to indicate that Mr Watson should pull over and stop. He attempted to evade Police by driving through the surrounding streets for about five minutes. These events give rise to the charge of failing to stop for the Police.

[7]…

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 Watson v Police

Details

AGLC: Watson v Police [2015] NZHC 2652
Case: [2015] NZHC 2652
Decision Date: 28 October 2015

CaseChat Overview and Summary

The case of Watson v Police involved an appeal by Dwayne Watson against his sentence of imprisonment for various driving-related offences. Watson was sentenced in the Christchurch District Court to a total of two years, five months, and fourteen days for charges including driving with excess breath alcohol, dangerous driving, failing to stop for police, driving while suspended, and breach of police bail. Watson's appeal was based on several grounds, including the assertion that the starting points for the drink-driving charges were too high, the judge failed to apply the totality principle properly, personal mitigating factors were not adequately recognised, and the judge erred by not considering home detention as a sentencing option.

The High Court found that the appeal against the failure to consider home detention was misconceived since home detention is only available for sentences of 24 months or less, and the judge's analysis indicated that Watson's sentence exceeded this limit. The court noted that while it should consider home detention if the sentence fell within the 24-month range, this was not the case here. The court then proceeded to assess the other grounds of appeal, focusing on the starting points for the drink-driving charges, the totality principle, and personal mitigating factors. After a detailed examination of the aggravating and mitigating factors, the court concluded that the starting points and the final sentence were within the broad sentencing range appropriate for such serious, repeated drink-driving offences. The court found no error in the sentence and dismissed the appeal.

In summary, the appeal was dismissed, and the original sentence of two years, five months, and fourteen days was upheld. The court found that the sentence was appropriate given the seriousness of Watson's repeated and dangerous driving offences while intoxicated.

Orders