B v Police HC Christchurch CRI 2007-409-165

[2007] NZHC 928

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2007-409-000165

B

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         20 September 2007

Counsel:        S J Shamy for Appellant

D Jackson for Respondent

Judgment:      20 September 2007

ORAL JUDGMENT OF PANCKHURST J

[1]      This  is an appeal  arising  from a  sentence  imposed  with  reference  to  an offence of driving with excess breath alcohol concentration.  The only aspect of the sentence  which  is  challenged  is  the  imposition  of  120  hours  community  work. Mr Shamy maintains that a sentence of that kind, and at that level, is simply out of line with the tariff for this offence, given the particular circumstances of the charge.

[2]      On 18 July the appellant was stopped at a check point on Madras Street in the middle evening.  His reading was 495 micrograms of alcohol per litre of breath.  He appeared before Judge Green in the District Court on 1 August.  It follows that he

had entered a very prompt plea of guilty.   The Judge, influenced no doubt by the

B V NEW ZEALAND POLICE HC CHCH CRI 2007-409-000165  20 September

2007

circumstance that Mr B   had a previous conviction in 2004 for a like offence, decided that 12 months disqualification and 120 hours community work was the appropriate sentencing response.

[3]      In addition he ordered that the appellant  not have an interest  in a motor vehicle for a period of 12 months, that order being made pursuant to s130 of the Land  Transport  Act.    The  previous  conviction  in  2004  related  to  a  reading  of

478 micrograms.      On   that   occasion   a   fine   was   imposed   and   six   months disqualification.

[4]      Mr B   is employed at the airport by a service provider company.   His hours of work can be any day of the week and any hour of the day.   He lives in Rangiora.  Accordingly loss of his licence is in itself a significant imposition.

[5]      Since his apprehension for this offence he has voluntarily undergone a drug and  alcohol assessment.    I  have  been  shown  a  copy  of  the  assessment  report. Essentially  it  discloses  that  he  is  not  a  person  who  suffers  from  an  addiction, although there may be some cause for concern that this is a second drink driving conviction.

[6]      Mr Shamy submitted that in order to arrive at 120 hours community work, after allowance for a plea of guilty, the Judge must have fixed a starting-point of about 180 hours community work.   This he said is simply out of line with other comparable cases.   He suggested that the sentencing outcome smacked of the approach of one strike and you’re out.

[7]      Further, it was submitted that the case was not even a typical one of its kind. Mr B  ’s explanation is that he had been to a restaurant, appreciated that he may be at or over the limit.  However, he wished to move his car a few blocks so that it could be parked in the well lit car park to the Centennial Swimming Pool and it was in the course of travelling on Madras Street to that end, that he was stopped at a check point.   There is some degree of confirmation  for  that  explanation  in  the direction of his travel.

[8]      Mr  Jackson  in  his  written  submission  characterised  the  imposition  of community work as harsh compared to a fine but not clearly excessive.

[9]      To my mind the sentence of community work was excessive in this case and probably inappropriate as well given the appellant’s circumstances.  Second offences of this kind are never to be condoned.  That said, this is towards the lesser end of the spectrum of this type of offence.  In my experience, confirmed by both counsel, it is the type of offence which would almost invariably attract a heavy financial penalty, and a period of disqualification of the order imposed, namely 12 months.

[10]     In these circumstances and for these reasons I consider that this Court is bound  to  intervene.    The  appeal  is  allowed  to  the  extent  that  the  sentence  of

120 hours community work is quashed and in its stead a fine of $1,500 is imposed.

Solicitors:

Simon Shamy Barrister, Christchurch for Appellant
Raymond Donnelly & Co, Christchurch for Respondent