Wilkins v Police

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2022-419-000073

[2023] NZHC 313

BETWEEN

GEOFFREY DENE WILKINS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	23 February 2023
Counsel:	SD Taylor for Appellant BB Harris for Respondent
Judgment:	28 February 2023

JUDGMENT OF DOWNS J

This judgment was delivered by me on Tuesday, 28 February 2023 at 9 am.

Registrar/Deputy Registrar

Solicitors/Counsel:

Crown Solicitor, Hamilton. SD Taylor, Hamilton.

WILKINS v POLICE [2023] NZHC 313 [28 February 2023]

The appeal

[1]    Geoffrey Wilkins drove with excess breath alcohol, that being a third or subsequent  offence.1   He  received  a   sentence  of  12   months’  imprisonment.2  Mr Wilkins appeals sentence.

[2]    An appeal in this context must be allowed if there is an error in the sentence and a different one should be imposed.3 Or, in short, if the sentence is manifestly excessive.4

Background

[3]The offending occurred 28 March 2022, at 8.35 pm.

[4]    Mr Wilkins was driving on a residential street in Hamilton. He crossed the centre line and drove on the wrong side of the road. He almost caused a collision, presumably  with  an  oncoming  vehicle.5   Police  attended.   Mr  Wilkins  blew   776 micrograms of alcohol per litre of breath. Mr Wilkins had six previous convictions for like offending:

Date of offence	Offence	Reading
11 December 2015	Breath alcohol over 400 (3+)	614
6 September 2003	Breath alcohol over 400 (3+)	795
15 February 2000	Breath alcohol over 400 (3+)	534
4 December 1999	Breath alcohol over 400 (3+)	915
6 June 1992	Unlicenced driver – breath alcohol over 400	476
4 May 1991	Breath alcohol over 400	800

1      Land Transport Act 1998, s 56(1) and (4).

2      Police v Wilkins [2022] NZDC 19401.

3      Criminal Procedure Act 2011, s 250.

4      Tutukangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.

5      The summary of facts is silent on the nature of the possible collision.

[5]    Judge D J McDonald adopted a starting point of 14 months’ imprisonment and added two months for Mr Wilkins’ history.  The  Judge  deducted  25  percent  for Mr Wilkins’ guilty plea. He declined to commute the sentence to home detention.

A précis of Mr Wilkins’ case

[6]    Mr Wilkins contends the starting point was too high and the uplift inappropriate. He argues the Judge should have discounted the sentence in recognition of alcohol dependency and commuted the sentence to home detention.

Analysis

[7]    Mr Wilkins’ contention the starting point was too high presupposes the offending  falls within the first category  identified by Whata J in Samson v Police.6  It and more serious categories are below:7

(a)No seriously or only moderately aggravating factors, 9-12 months;

(b)One or more seriously aggravating factors, 12–18 months;

(c)Multiple offences with seriously aggravating factors, 18-20 months; and

(d)Multiple offences and very serious aggravating factors (ie offending of the worst kind), 20–24 months.

[8]    On behalf of Mr Wilkins, Mr Taylor contends the first category was appropriate because many of Mr Wilkins’ previous…