IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2012-404-81 [2012] NZHC 1064
KIRI DIANA BEESTON
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 14 May 2012
Counsel: Y Lee for the Appellant
F Nizam for the Respondent
Judgment: 17 May 2012
JUDGMENT OF WOODHOUSE J
This judgment was delivered by me on 17 May 2012 at 4:30 p.m. pursuant to r 11.5 of the High Court Rules 1985.
Registrar/Deputy Registrar
……………………………………
Solicitors:
Mr Yoon Lee, Solicitor, Takapuna
Ms F Nizam, Meredith Connell, Office of the Crown Solicitor, Auckland
BEESTON V NEW ZEALAND POLICE HC AK CRI-2012-404-81 [17 May 2012]
[1] Ms Beeston appeals against her sentence on 17 February 20121 for driving with excess breath alcohol having been convicted at least twice previously for a similar offence. The level of alcohol was 483 micrograms per litre of breath. Ms Beeston had been convicted on three previous occasions for driving with excess breath alcohol. The previous offences and sentences were:
(a) December 1997: 744 micrograms: 50 hours community service and six months disqualification from holding or obtaining a driver licence (which I will refer to as “disqualification”).
(b)March 1998: 457 micrograms: non-residential periodic detention for three months and six months disqualification.
(c) March 2000: 670 micrograms: two months non-residential periodic detention and disqualification for one year.
[2] Ms Beeston was also convicted in July 1998 for driving while disqualified. This arose out of the disqualification on the first occasion.
[3] The sentence imposed for the present offending was 120 hours of community work, nine months supervision with special conditions relating to alcohol counselling, and disqualification for one year and one day commencing on the date of sentence.
[4] Ms Beeston appeals on two principal grounds:
(a) The Judge was in error in declining to exercise the discretion under s 94 of the Land Transport Act 1998 (the Act) not to make an order of disqualification.
(b)The sentence of 120 hours community work was manifestly excessive.
1 Police v Beeston DC North Shore CRI-2011-090-008337, 17 February 2012.
[5] There was also a purported appeal against a bail condition, imposed on Ms Beeston’s first appearance on 27 October 2011, that she not drive pending (it appears) disposal of the prosecution. Mr Lee accepted that an appeal against the bail condition should have been made within the requisite time limit following the imposition of the condition. He did not pursue this point, but the condition has relevance.
The sentencing decision
[6] The Judge noted the previous convictions. He referred to the very short summary of facts relating to the present offending: the car was stopped by Police; Ms Beeston “exhibited signs of recent alcohol intake”; the breath alcohol reading was 483 micrograms. He also noted Ms Beeston’s advice to the constable that she thought it would be all right to drive.
[7] The Judge then said:
[5] The aggravating factor is this is now your fourth drink driving offence. I take into account you have entered a guilty plea at a relatively early stage…
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