Wilson v Police - [2015] NZHC 1263

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI 2015-443-18 [2015] NZHC 1263

BETWEEN
PHILLIP VEITCH WILSON

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 3 June 2015

Appearances:

J Mooney for the Appellant
N Laird for the Respondent

Judgment:

8 June 2015

JUDGMENT OF MALLON J

Introduction

[1] Mr Wilson pleaded guilty to one count of driving with excess breath alcohol (third or subsequent).1 He was sentenced in the District Court at New Plymouth to nine months imprisonment and disqualification for one year and one day.2 He appeals against his sentence. He contends that the starting point adopted by the Judge was too high and that insufficient credit was given for his personal
circumstances leading to an end sentence that was manifestly excessive.

[2] A further ground of appeal, that the Judge erred in refusing to grant home detention, was discontinued given the time remaining on the sentence.

The offending

[3] At 3.15 am on 10 October 2014, Mr Wilson was stopped during a routine traffic stop. He elected to give a blood sample, which returned a result of 146 mgs

1 Land Transport Act 1998, s 56(2) (maximum penalty of two years imprisonment or a fine not exceeding $6,000, and disqualification for more than one year).
2 Police v Wilson [2015] NZDC 3973 (Judge A C Roberts).

WILSON v NEW ZEALAND POLICE [2015] NZHC 1263 [8 June 2015]

of alcohol per 100 mls of blood. He said that he had had a couple of drinks after returning home from a work call out, and that he had then been called out to work again.

Mr Wilson’s circumstances

[4] Mr Wilson is 51 years old. At the time of the offending he was in full-time employment in the telecommunications industry. He was living with his partner who was described by the pre-sentence report writer as being strong pro-social support for him.

[5] He has relevant previous convictions:

(a) 1985: driving with excess breath alcohol (level unknown) for which he received six months disqualification and a fine of $330.

(b)2003: driving with excess breath alcohol (a reading of 794) for which he received six months disqualification, a fine of $800, and Court costs of $130.

(c) 2008: refusing a request for a blood specimen (third or subsequent) for which he received indefinite disqualification, a fine of $1,200, and Court costs of $130.

(d)2009 (sentenced in 2010): driving while disqualified and driving with excess blood alcohol (third or subsequent) (a reading of 313) for which he received one year of intensive supervision, six months of community detention, indefinite disqualification, and an order prohibiting interest in a motor vehicle.

[6] His other convictions are dated, relatively minor and of a different kind.

[7] Mr Wilson was described by the pre-sentence report writer as a chronic alcoholic. He was assessed as requiring intensive rehabilitation in order to reduce his risk of reoffending. He completed his community detention sentence in 2010 and his intensive supervision sentence in 2011. It is not clear what…

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.

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Details

Case: [2015] NZHC 1263
Decision Date: 8 June 2015

CaseChat Overview and Summary

Phillip Veitch Wilson appealed against his sentence for driving with excess breath alcohol, arguing that the District Court Judge's starting point of 12 months imprisonment was too high and that insufficient credit was given to his personal circumstances, leading to an end sentence that was manifestly excessive. The appeal was heard in the High Court of New Zealand, New Plymouth Registry, with Judge Mallon delivering the judgment. The respondent, New Zealand Police, argued that the starting point was within range and the end sentence was not manifestly excessive. The central legal issue was whether the District Court Judge's starting point and final sentence were appropriate, given the offender's history and efforts to address his alcohol problem.

The Court found that the Judge's starting point of 12 months imprisonment was stern, given the offender's history. While the Judge was entitled to be sceptical, the Court considered that the Judge was wrong not to take into account the steps the offender had taken and was willing to take to address his alcohol problem, even though they had not been entirely successful. The Court found that the combination of the stern starting point and the absence of recognition for the offender's efforts led to a sentence that was manifestly excessive. The Court substituted a sentence of seven months imprisonment, representing a total reduction of approximately 22 per cent, which was not insignificant. The special conditions and disqualification period, as ordered in the District Court, remained in place.

In summary, the Court allowed the appeal, quashed the sentence of nine months imprisonment, and substituted a sentence of seven months imprisonment. The Court considered that the District Court Judge's starting point was too high and that insufficient credit was given to the offender's personal circumstances, leading to an end sentence that was manifestly excessive. The Court found that an end sentence of seven months imprisonment was appropriate, given the offender's history and efforts to address his alcohol problem.

Orders