Simon v Police [2012] NZHC 2610 (8 October 2012)

Last Updated: 30 October 2012

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2012-425-33 [2012] NZHC 2610

CRAIG JONATHON SIMON

Appellant

v

NEW ZEALAND POLICE

Respondent

Counsel: R Smith for Appellant

L Cole for Respondent

Judgment: 8 October 2012

(ORAL) JUDGMENT OF LANG J [on appeal against sentence]

CRAIG JONATHON SIMON V NEW ZEALAND POLICE HC INV CRI-2012-425-33 [8 October 2012]

[1] Mr Simon pleaded guilty in the District Court to two charges of careless driving, one charge of refusing an officer’s request for a blood specimen and two charges of failing to stop or ascertain injury.

[2] On 26 June 2012, Judge Turner ordered Mr Simon to perform 225 hours community work. He also sentenced him to nine months supervision, and directed him to pay the sum of $1,288.19 by way of reparation. In addition, he disqualified Mr Simon from driving for a period of ten months.[1]

[3] Mr Simon now appeals to this Court against the sentence of community work that the Judge imposed. He argues that the sentence is excessive, having regard to the overall gravity of his offending.

[4] In order to understand the issue that the appeal raises, it is necessary to set the facts out in some detail.

The facts

[5] All of the charges arise out of a series of events that began at approximately

5 pm on 20 March 2012. At that time a member of the public observed Mr Simon sitting in his vehicle at Queen’s Park consuming methylated spirits. This so concerned the member of the public that he endeavoured to persuade Mr Simon to hand over his car keys. He then tried to take the car keys away from Mr Simon.

[6] Mr Simon did not heed the advice clearly given to him by the member of the public. Instead, he drove away and, a few minutes later, stopped at a red traffic light at the intersection of Jed and Tay Streets. When the lights turned green, Mr Simon did not respond in any way. He remained stationary at the traffic lights until the lights changed back to red. When the lights turned green again, he moved his vehicle in and out of reverse a couple of times and then suddenly reversed backwards. This caused his vehicle to collide with a vehicle standing stationary behind him. The force of the collision was sufficient to shunt the other vehicle

_backwards.

[7] By this stage, the lights had changed back to red again. Rather than continue waiting, Mr Simon put his car into gear and drove forward through the red light. He made no effort to stop and/or check on the welfare of the occupants of the vehicle with which he had just collided. Fortunately, however, the sole occupant of that vehicle did not suffer any injury as a result of the collision.

[8] Mr Simon continued driving and, a few minutes later, was driving east on Ettrick Street behind a bus. The bus slowed for some judder bars and then continued slowly on towards the intersection at Ellis Road. At that point, Mr Simon crashed into the rear of the bus. Rather than stopping, however, he immediately pulled out onto the other side of the road and continued driving past the bus. He paused briefly in the wrong lane at the intersection at Ellis Road to allow a vehicle to pass, before returning to the correct side of the road. Again, he made no effort to check to see whether any of the occupants of the bus had been injured.

[9] His driving antics attracted the attention of members of the public. The police were advised as to Mr Simon’s movements, and they commenced looking for him. When the police found him, he had parked his vehicle in Cheviot Street, and was lying in the vehicle with his feet outside the driver’s window. The keys to the vehicle were still in the ignition. The police who attended the scene observed that a large piece of plastic from the bus remained wedged in the bonnet of his vehicle.

[10] When the police spoke to Mr Simon, he admitted he had been drinking methylated spirits earlier in the afternoon at Queen’s Park. He denied, however, that he had been driving his vehicle. He also refused to undergo a roadside breath screening test, and subsequently refused to provide an evidential breath test. He initially agreed that he would agree to provide a specimen of his blood for evidential purposes, but when a nurse arrived he changed his mind and refused the request.

[11] When he appeared before the District Court, Mr Simon advised the Court through his counsel that, at the time of the offending, his life had gone off the rails. He had lost his employment, and he had also separated from his partner. All of these factors had caused his life to spiral downwards and he began drinking heavily. He

found that the cost of normal alcohol was too expensive, and was using methylated spirits as a substitute.

Grounds of appeal

[12] On appeal, counsel for Mr Simon submits that, on its own, the charge of refusing a request for a blood specimen would probably attract a fine of no more than $800 to $900. Given the fact that Mr Simon was in no position to pay a fine, counsel accepted that the Judge was entitled to impose a sentence of community work rather than a fine. He submitted, however, that standing alone, that charge would attract a sentence of community work of no more than 60 or 70 hours. He submitted that a further uplift of 150 hours community work was manifestly excessive, notwithstanding the gravity of the other offending.

Decision

[13] This submission ignores the fact, in my view, that the remaining charges form perhaps the most serious aspect of Mr Simon’s offending. He was clearly significantly intoxicated as a result of his consumption of methylated spirits. Notwithstanding that fact, he continued to drive even after a member of the public had tried to take his keys off him. He then placed all other road users at risk as he drove around the streets of Invercargill ignoring, or seemingly oblivious to, the instructions being given to him at intersections by traffic lights. He was then involved in two separate collisions, both of which occurred as a result of his driving being impaired by the consumption of alcohol. He then failed to stop and ascertain whether anybody had been injured as a result of those collisions. Finally, he refused to co-operate with the police when they initiated the breath and blood testing procedures.

[14] I consider that the manner in which Mr Simon placed other road users at risk was such an aggravating factor that it outweighs the gravity of the fact that he ultimately refused the officer’s request to provide a blood specimen. Mr Simon is fortunate that nobody was killed or seriously injured as a result of his activities on 20

March 2012.

[15] It is not easy to determine where the sentence that the Judge imposed fits in terms of sentences imposed in like cases. This may be because most cases involving excess breath and blood alcohol are dealt with by way of a fine in the case of first offenders, as Mr Simon was. Be that as it may, the seriousness of his conduct was such, in my view, that a deterrent sentence was warranted.

[16] The maximum penalty for the charge of failing to stop or ascertain injury is three months imprisonment, as is the charge of refusing a blood specimen. The careless driving charges carry a maximum penalty of a fine in the sum of $3,000.

[17] The maximum sentence of community work that a Judge can impose is 400 hours. I do not consider that a sentence of just over half the maximum can be said to be manifestly excessive having regard to the seriousness of Mr Simon’s conduct. For that reason I have concluded that, although the sentence may well be at the very upper end of the range available, it did not exceed that range.

Result

[18] I am therefore satisfied that the sentence was not manifestly excessive. As a consequence, the appeal must be dismissed.

Lang J

Solicitors:

Crown Solicitor, Invercargill

Counsel:

Cruickshank Pryde, Invercargill

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[1] New Zealand Police v Simon DC Invercargill CRI-2012-025-000758, 26 June 2012.