Williamson v Police - [2016] NZHC 1243

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2016-488-15 [2016] NZHC 1243

BETWEEN
LARS GARRY WILLIAMSON

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 9 June 2016

Counsel:

T K Donald for Appellant
J Wall for Respondent

Judgment:

9 June 2016

JUDGMENT OF DUFFY J

Solicitors:
Crown Solicitor, Whangarei

Counsel:
T K Donald, Barrister, Whangarei

WILLIAMSON v NEW ZEALAND POLICE [2016] NZHC 1243 [9 June 2016]

[1] Mr Williamson pleaded guilty to one charge of driving whilst disqualified and one charge of driving with excess breath alcohol (third or subsequent). He appeared for sentencing in the Dargaville District Court on 5 May 2016. Judge Harvey sentenced Mr Williamson to 10 months’ imprisonment on the excess breath alcohol (“EBA”) charge and imposed a cumulative sentence of nine weeks’ imprisonment in relation to the charge of driving whilst disqualified. Mr Williamson was also disqualified from driving for a further two years.

[2] Mr Williamson appeals his sentence on the basis that it was manifestly excessive.

Background

[3] Judge Harvey summarised the offending as follows:

[2] The facts that I sentence you on are that on 26 January at about 2.45 in the afternoon you were observed driving a motor vehicle along Kenny Street in Waihi. You were stopped. You denied recently consuming alcohol but you exhibited signs of recent alcohol intake. You were required to undergo a breath screening test and that resulted in a positive reading. A subsequent evidential breath test yielded 869 micrograms of alcohol per litre of breath. Your explanation was that that reading must be accounted for by the fact that you had been drinking the prior night, although you said that you had “a sleep”.

[4] Mr Williamson has an extensive history of EBA and driving whilst disqualified offending. His history is as follows:

Date Offence Penalty

11 April 1998
Excess breath alcohol

(400mcg/L)

Disqualified from driving

for 4 months; fined $400

16 March 2001
Excess blood alcohol

(151mg/L)

Disqualified from driving

for 7 months; fined $700

4 October 2002
Excess blood alcohol

(102mg/L)

Disqualified from driving

for 9 months; fined $1,500

18 October

2007

Excess breath alcohol

(848mcg/L)

200 hours’ community

work; disqualified from driving for 1 year 1 month

2 February

2008
Driving whilst disqualified
6 months’ supervision;

disqualified from driving for 6 months

1 June 2009
Excess blood alcohol

(284mg/L)

1 year supervision; 250

hours’ community work; 6 months’ community detention; disqualified from driving indefinitely

14 October

2013

Excess breath alcohol

(823mcg/L)

5 months’ home detention;

160 hours’ community work; disqualified from driving indefinitely

[5] Mr Williamson has also committed four other driving offences and has been convicted of breaching court orders relating to various home detention and community based sentences on six occasions.

District Court decision

[6] He appeared in the District Court, having pleaded guilty to the following charges:

Offence Provision Maximum penalty

Driving with excess

breath alcohol (third or subsequent)

Land Transport Act

1998, ss 56(1) and
56(4)

2 years’ imprisonment

$6000 fine

Driving whilst

disqualified

Land Transport Act

1998, ss…

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 Williamson v Police

Details

AGLC: Williamson v Police [2016] NZHC 1243
Case: [2016] NZHC 1243
Decision Date: 9 June 2016

CaseChat Overview and Summary

Lars Garry Williamson appeals his sentence on the basis that it was manifestly excessive. Williamson pleaded guilty to one charge of driving while disqualified and one charge of driving with excess breath alcohol (third or subsequent). The District Court sentenced him to 10 months' imprisonment on the excess breath alcohol charge and imposed a cumulative sentence of nine weeks' imprisonment in relation to the charge of driving while disqualified. Williamson was also disqualified from driving for a further two years. Williamson argues that the aggravating feature of driving while disqualified was incorporated into the starting point in respect of the excess breath alcohol charge and therefore the judge should have sentenced him on a concurrent, rather than a cumulative basis. He also argues that the starting point adopted by the judge was too high. The High Court must allow the appeal if satisfied that there is an error in the sentence imposed on conviction and a different sentence should be imposed. The court must dismiss the appeal in any other case. The starting point in respect of the excess breath alcohol offending was justified, and the decision to sentence on a cumulative basis was appropriate. The total sentence that was imposed was not manifestly excessive. The appeal is dismissed.

Final orders:
The appeal is dismissed.

Orders