Westbury v Police HC Palmerston North CRI 2010-454-50

[2011] NZHC 111

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI 2010-454-50

EDWARD KENNETH WESTBURY

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         2 February 2011

Counsel:         R Bedford for Appellant

[               ] for Respondent

Judgment:      2 February 2011

JUDGMENT OF SIMON FRANCE J

[1]      Mr Westbury appeals a sentence of 18 months’ imprisonment for driving with excess breath alcohol.  A concurrent penalty of two and a half years’ disqualification is not appealed.

[2]      Mr Westbury  was  stopped  at  7.30  p.m.  by  the  police.    He  returned  an evidential breath test of 827 micrograms.  This was Mr Westbury’s 14th  offence for drink driving.  He also has many previous convictions for driving while disqualified, but subsequent to his last drink driving incident he had successfully re-obtained his licence.

[3]      The Judge took the maximum of 24 months’ imprisonment as the starting point.  Mr Bedford submits that is too high given the lack of aggravating features,

EDWARD KENNETH WESTBURY V NEW ZEALAND POLICE HC PMN CRI 2010-454-50 2 February 2011

namely  any  bad  driving  at  the  time  and  the  fact  that  Mr Westbury  was  not  a disqualified driver.   He also notes the period of seven years since his last drink driving conviction.

[4]      Concerning these factors, it is to Mr Westbury’s credit that he had taken the effort to again obtain a driving licence.   That would have involved undertaking courses and re-sitting for his licence.  Although it is to his credit, I do not see it as a mitigating factor.  People who drive should have licences and I cannot see a basis for giving credit for having one.  Likewise, any bad driving would attract other charges. The absence of bad driving may rightly be considered when assessing seriousness, but is overwhelmed in cases like this where the number of offences is so high.

[5]      The matter most in Mr Westbury’s favour is the seven year gap since he last committed such an offence.  However, in favour of the starting point taken by the Judge is the fact that this is his 14th  such offence, and his alcohol level was more than  twice  the  legal  limit.     Support  for  the  starting  point  can  be  found  in Moon v Police[1], which in any view is largely comparable.  Whilst other cases can be found where a lower sentence has been imposed, I am far from satisfied that the maximum was not available as a starting point.

[1] Moon v Police HC Whangarei CRI 2010-488-7, 9 July 2010 per Heath J.

[6]      As for the discount, 25% is the maximum available in accordance with recent Supreme Court authority.  At the time of sentencing, the Court of Appeal’s decision in Hessell was the prevailing decision.  However, the recent Supreme Court decision

must be the authority applicable to this appeal.

[7]      In conclusion, I am of the view that the starting point was available.   A slightly lesser starting point might have been taken but I do not consider that the starting point was wrong.   The discount for the guilty plea is in accordance with

binding authority and the appeal is dismissed.

Simon France J

Solicitors:

R A Bedford, PO Box 963, Palmerston North

C Shannon, Ben Vanderkolk & Associates, PO Box 31, Palmerston North