Ashworth v Police - [2020] NZHC 1587

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI 2020-463-000022

[2020] NZHC 1587

BETWEEN
DEAN GRAEME ASHWORTH

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 6 July 2020

Counsel:

A Bean for the Appellant

O M Salt for the Respondent

Judgment:

7 July 2020

JUDGMENT OF VAN BOHEMEN J

This judgment was delivered by me on 7 July 2020 at 11:00am

…………………………

Registrar/Deputy Registrar

Solicitors/Counsel:
Bean Law Ltd, Hamilton Crown Solicitor, Tauranga

ASHWORTH v NEW ZEALAND POLICE [2020] NZHC 1587 [7 July 2020]

Introduction

[1] Dean Graeme Ashworth appeals against his conviction for two offences under the Land Transport Act 1998 (LTA).

The offending

[2] On 21 September 2019, Mr Ashworth, the holder of a zero-alcohol licence, was stopped by police as he drove along SH2 near Mangatarata. A breath test returned a reading of 600 micrograms of alcohol per litre of breath.

[3] Prior to the date of this offending, Mr Ashworth had two previous convictions for drink driving.

The District Court trial and sentence

[4] On 17 December 2019, in the District Court in Gisborne, Mr Ashworth pleaded guilty to two offences under the Land Transport Act 1998 (LTA) and convictions were entered.

[5]The two offences were:

(a)Under s 57AA(4), driving with breath alcohol exceeding 250 micrograms of alcohol per litre of breath, in contravention of a zero-alcohol licence.1

(b)Under s 56(1), driving with breath alcohol exceeding 400 micrograms of alcohol per litre of breath.2

[6] Because of Mr Ashworth’s prior drink driving convictions, the maximum penalty for each offence is the same: two years’ imprisonment or a fine of $6,000.00;

1 Carrying a maximum penalty, provided by s 57AA(6) LTA, of two years’ imprisonment or a fine of $6,000.00, and the court must order the person be disqualified from holding or obtaining a driver licence for 1 year or more.
2 Because of Mr Ashworth’s previous convictions, carrying a maximum penalty, provided by s 56(4), of two years’ imprisonment or a fine of $6,000.00, and the court must order the person be disqualified from holding or obtaining a driver licence for more than 1 year.

in addition, the court must make an order disqualifying the person convicted from holding or obtaining a driver’s licence for more than one year.

[7] On 10 March 2020, in the District Court in Thames, Judge R G Marshall imposed a sentence of nine months’ supervision for each charge, and a period of disqualification of one year and one day, and 150 hours of community work.3

Mr Ashworth’s appeal

[8] On 20 March 2020, Mr Ashworth’s counsel filed a notice of appeal in the High Court in Rotorua. The appeal was only in respect of Mr Ashworth’s conviction. The grounds of appeal referred to s 10 of the Crimes Act 1961 and stated that the two offences for which Mr Ashworth had been convicted arose from the same incident and he should not be punished twice for the same offence.

[9] The notice…

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: [2020] NZHC 1587
Decision Date: 7 July 2020

CaseChat Overview and Summary

Dean Graeme Ashworth appeals against his conviction for two drink driving offences under the Land Transport Act 1998 (LTA). Ashworth was stopped by police and found to have 600 micrograms of alcohol per litre of breath while driving on a zero-alcohol licence. The District Court found him guilty of driving with breath alcohol exceeding 250 micrograms of alcohol per litre of breath, in contravention of a zero-alcohol licence, and driving with breath alcohol exceeding 400 micrograms of alcohol per litre of breath. Ashworth appeals against the conviction under s 56 of the LTA, arguing it amounts to double jeopardy in breach of s 10(4) of the Crimes Act. The court considered whether the offences under ss 57AA(4) and 56(1) of the LTA arose from the same facts and concluded that they did. The court allowed the appeal, set aside the conviction under s 56(1) and dismissed that charge.

Orders