Withers v Police - [2019] NZHC 1080

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2019-419-17

[2019] NZHC 1080

BETWEEN
TIMOTHY RENATA WITHERS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 2 May 2019

Appearances:

T Sutcliffe for Appellant

A S Alcock for Respondent

Judgment:

16 May 2019

JUDGMENT OF PAUL DAVISON J

This judgment was delivered by me on 16 May 2019 at 3:45pm Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:
Crown Solicitor, Hamilton

WITHERS v POLICE [2019] NZHC 1080 [16 May 2019]

Introduction

[1] Mr Withers (the appellant) pleaded guilty in the District Court at Hamilton to charges of driving with excess breath alcohol third and subsequent,1 and careless driving.2 Judge Bidois sentenced him to 160 hours’ community work, and disqualified him from driving for 13 months.3

[2] He appeals on the ground that the sentence imposed was manifestly excessive having regard to the offending and to his personal circumstances. His appeal is limited to the sentence of community work. He does not appeal the 13 month disqualification from holding or obtaining a driver’s licence, which he accepts was appropriate.

Background

[3] At around 12.30pm on Sunday 3 February 2019, Mr Withers was driving his car on State Highway 2 en route from Auckland to Waihi when he fell asleep and his car collided with a truck travelling from the opposite direction. An evidential breath test produced a result of 714 micrograms of alcohol per litre of breath. He explained to police that he had been working long hours during the previous week and had been drinking at a wedding party the night before.

[4] The appellant has previous convictions for driving with an excess breath alcohol level in 1991 and again in 2009. He also has three previous convictions for careless driving in 1994, 1997, and 2002.

Approach on appeal

[5] The approach to be taken to an appeal brought under s 250(2) of the Criminal Procedure Act 2011 was addressed by the Court of Appeal in Tutakangahau v R.4 The Court said:

[30] The practical effect of preserving the approach applied to date is that the appellate court does not just start afresh nor simply substitute its own opinion for that of the original sentencer. Rather, in the words of Shipton, it must be

1      Land Transport Act 1998, ss 56(1) and 56(4)
2      Land Transport Act 1998, ss 8 and 37(1)
3      Police v Withers [2019] NZDC 4585.
4      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.

shown that there was an error “whether intrinsically, or as a result of additional material submitted” on appeal. If there is an error of the requisite character, the Court will then form its own view of the appropriate sentence.

(footnotes omitted)

[6] Where an error or errors are found to have occurred, the court’s assessment of their significance will inform its decision as to whether a different sentence should be imposed. The Court of Appeal noted…

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 Withers v Police

Details

AGLC: Withers v Police [2019] NZHC 1080
Case: [2019] NZHC 1080
Decision Date: 16 May 2019

CaseChat Overview and Summary

The appellant, Mr Timothy Renata Withers, appeals against his sentence for driving with excess breath alcohol and careless driving, imposed by the District Court at Hamilton. The court had sentenced him to 160 hours of community work and disqualified him from driving for 13 months. Mr Withers appeals on the ground that the sentence imposed was manifestly excessive, limited to the sentence of community work. He accepts the disqualification from holding or obtaining a driver’s licence as appropriate.

The legal issues before the court were whether the Judge erred in failing to give sufficient weight to the appellant’s personal and domestic circumstances, and whether the Judge erred in taking into account the careless driving offence when determining the sentence for the excess breath alcohol driving charge. The court considered the approach to be taken to an appeal brought under s 250(2) of the Criminal Procedure Act 2011, and whether there was an error in the sentence imposed by the District Court.

The court held that the Judge’s decision to impose the more restrictive penalty of community work rather than a fine was entirely justified. The court found that the obligation on the appellant to undertake community work on the weekend and the impact of that commitment on his limited family time, was not a matter that would render the imposition of a sentence of community work manifestly excessive. The court rejected the submission made for the appellant that the Judge erred by taking the appellant’s careless driving into account when determining the sentence to be imposed. The appeal was dismissed.

The court found that the sentence of 160 hours of community work and disqualification from driving for 13 months was appropriate, and not manifestly excessive. The court held that the Judge was entitled to factor the appellant’s careless driving into his sentence for the excess breath alcohol driving charge, as it was an aggravating factor which was clearly relevant to an assessment of the gravity of his breath alcohol offending.

Orders