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Welsh v Police

Welsh v Police

Case [2022] NZHC 132 9 February 2022

Admissibility of Evidence

Criminal Law

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IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CRI-2021-454-33

[2022] NZHC 132

CAMERON ANDREW WELSH

v

NEW ZEALAND POLICE

Hearing: 9 February 2022

Counsel:

P Murray for Appellant

E Pairman for Respondent

Judgment:

9 February 2022

JUDGMENT OF CHURCHMAN J

Introduction

[1] On 28 October 2021, Cameron Andrew Welsh (the appellant) was sentenced by Judge Broughton in the Palmerston North District Court to 16 months’ imprisonment on three charges.1 These charges were:

(a)driving with breath containing excess of 400 micrograms of alcohol, third or subsequent;2

(b)driving while disqualified third or subsequent;3 and

1      Police v Welsh [2021] NZDC 21209.
2      Land Transport Act 1998, ss 56(1) and 56(4) – maximum penalty two years’ imprisonment, $6,000 fine.
3      Land Transport Act 1998, ss 32(1)(a) and 32(4) – maximum penalty two years’ imprisonment,
$6,000 fine.

WELSH v NEW ZEALAND POLICE [2022] NZHC 132 [9 February 2022]

(c)breaching without reasonable excuse conditions of release by consuming alcohol.4

[2] The sentence also included a 12-month disqualification from driving and the following special release conditions:

(a)to attend a psychological assessment;

(b)to complete any treatment and/or counselling as recommended by that assessment;

(c)not to consume or possess or use any non-prescribed drugs including alcohol;

(d)to attend appropriate alcohol counselling; and

(e)not to travel north of New Plymouth, Waiouru, Napier or any other area defined by a probation officer.

[3] Mr Welsh appeals on the grounds that the sentencing judge erred by failing to consider relevant factors, used incorrect methodology to arrive at the end sentence and imposed a manifestly excessive sentence. The grounds of appeal also assert that material facts were not placed before the District Court Judge.

[4]The Police oppose the appeal.

[5] I have concluded that other than in respect of the imposition of condition (e) set out in [2] above, the appeal should be dismissed. The starting point and end sentence were within an appropriate range, and the Judge did not make any material error in the sentencing process. I now set out my reasons.

4 Sentencing Act 2002, s 96(1) – maximum penalty one years’ imprisonment, $2,000 fine.

Background

Factual background

[6] To provide context for the appeal it is necessary to briefly detail the appellant’s most recent convictions. On 2 March 2021, the appellant was released from prison subject to conditions, following a conviction for injuring with intent to injure.

[7] On release the appellant was subject to a special condition for one year five months and four days not to consume or use any alcohol or drugs not prescribed to him. On 5 May 2021, he was charged with failing to stop for an enforcement officer and later convicted in the Palmerston North District Court. As a result, the appellant was disqualified from driving for three months on 25 May 2021.

[8] The offending in respect of which this appeal has been raised occurred when the appellant was seen drinking alcohol in the McDonald’s drive-through on Princess Street in…

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 Welsh v Police

Details

AGLC: Welsh v Police [2022] NZHC 132
Case: [2022] NZHC 132
Decision Date: 9 February 2022

CaseChat Overview and Summary

In the High Court of New Zealand, Cameron Andrew Welsh appealed against his sentence of 16 months' imprisonment, imposed by Judge Broughton in the Palmerston North District Court. The charges related to driving with excess breath alcohol, driving while disqualified, and breaching the conditions of his release by consuming alcohol. Welsh argued that the District Court Judge erred in the sentencing process, resulting in a manifestly excessive sentence. The Police opposed the appeal, maintaining that the sentence was within an appropriate range. The High Court found that the appeal should be dismissed except in respect of one condition imposed on Welsh's release.

The legal issues before the court were whether the District Court Judge made any material errors in the sentencing process and whether the sentence was manifestly excessive. The court considered the starting point and end sentence, as well as the methodology used by the District Court Judge in arriving at the sentence. The court also examined whether the Judge had failed to consider relevant factors and if there were any material facts not presented to the District Court.

The court found that the starting point and end sentence were within an appropriate range and that the District Court Judge did not make any material errors in the sentencing process. The court noted that the purposes of sentencing include holding the offender accountable for harm done to the community, providing for the interests of the victim, denouncing the conduct, deterring the offender or others from committing the same or similar offence, and protecting the community from the offender. The court emphasised that the focus was on the end sentence and not the process by which the sentence was reached. The court concluded that the High Court should not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.

The court found that the Judge had considered relevant factors, such as Welsh's history of alcohol-related offending and his negative relationship with alcohol. The court also noted that the Judge had imposed release conditions requiring Welsh to attend psychological assessment and complete any drug or alcohol treatment recommended by probation officers. The court found that the Judge's consideration of these factors meant that there was no material error in the sentencing process. The court also found that the difference between 15.375 months and 16 months was insufficient to conclude that the sentence was manifestly excessive.

The court found that the condition requiring Welsh not to travel north of New Plymouth, Waiouru, and Napier was unconnected with the offences relevant to this sentencing and should not have been imposed. The sentence is accordingly varied by deleting this condition. This does not affect the validity of a similar condition imposed in an earlier unrelated sentencing which continues in effect.

Orders