Black v Police - [2012] NZHC 1694

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2012-463-000024 [2012] NZHC 1694

CHRISTINE MEKA BLACK
Appellant
v

NEW ZEALAND POLICE
Respondent

Hearing: 13 July 2012

Counsel: R Plunkett for Appellant
J Rhodes for Respondent

Judgment: 13 July 2012

ORAL JUDGMENT OF WOOLFORD J

Solicitors:
Crown Counsel, Tauranga

Counsel:
R Plunket, Barrister, Whakatane

BLACK V NZ POLICE HC ROT CRI-2012-463-000024 [13 July 2012]

[1] This is an appeal against a sentence imposed in the District Court at Opotiki on 26 April 2012 in respect of a conviction after a guilty plea on a charge under s 56(2) of the Land Transport Act 1998 of driving with excess breath alcohol, that conviction being the appellant’s third conviction for the same offending.

[2] In terms of the Act, the maximum penalty is two years imprisonment or a fine of $6000. As well, the legislation provides for a minimum disqualification from driving of 12 months. The sentence imposed in the District Court was nine months home detention, 300 hours community work, indefinite disqualification from driving and a special six months post-detention condition. The special condition imposed was to complete any outstanding programme/counselling as directed to the satisfaction of the probation officer and service provider.

Facts

[3] The summary of facts records that on 18 February 2012, at about 11:30am, the appellant was the driver of a motor vehicle on State Highway 35 Opotiki. Police recognised the vehicle because a member of the public, who had concerns about the appellant’s erratic and possibly intoxicated driving, had telephoned the Police earlier in the day. As Police turned to stop the appellant she turned off the state highway and drove up a driveway on Gows Road in an attempt to hide from Police. She admitted consuming alcohol that morning. Subsequent breath alcohol procedures showed the appellant’s breath contained 1247 micrograms of alcohol per litre of breath.

[4] The appellant has two previous convictions for driving with excess breath alcohol, one in 2005 with a breath alcohol level of 465 and a second in 2010, with a breath alcohol level of 912. In respect of the first conviction, the appellant was fined
$400 and disqualified from driving for six months. In respect of the second conviction, she was fined $1200 and again disqualified for six months.

Pre-sentence report

[5] The pre-sentence report noted that the appellant had no other convictions but that given the increase in breath alcohol readings the appellant’s risk of re-offending was assessed as medium with the risk of harm to others similarly assessed due to the inherent danger to the public by driving while intoxicated. The appellant’s use of alcohol was assessed as problematic. However, the appellant acknowledged that her driving whilst under the influence could have disastrous results to her or other road users and she stated that she was ashamed of her actions. She expressed remorse and displayed insight into her offending and presented as motivated to assess her alcohol consumption through counselling.

[6] The appellant is in a de facto…

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 Black v Police

Details

AGLC: Black v Police [2012] NZHC 1694
Case: [2012] NZHC 1694
Decision Date: 13 July 2012

CaseChat Overview and Summary

Christine Meka Black appealed against a sentence imposed by the District Court at Opotiki, which was a conviction on a charge of driving with excess breath alcohol under section 56(2) of the Land Transport Act 1998. This was her third conviction for the same offence, and the maximum penalty for such an offence is two years imprisonment or a fine of $6000. The District Court had imposed a sentence of nine months home detention, 300 hours of community work, indefinite disqualification from driving, and a special six months post-detention condition. The legal issues that the Court had to decide were whether the sentence imposed was manifestly excessive and, if so, what an appropriate sentence would be. The Court considered the sentencing remarks of the District Court Judge and the pre-sentence report, which highlighted the appellant's problematic use of alcohol and her remorse for her actions. The Court also considered the aggravating and mitigating factors of the case, including the appellant's guilty plea, her prospects for rehabilitation, and her motivation to participate in rehabilitation. The Court found that the sentence imposed by the District Court was manifestly excessive and substituted a sentence of three months home detention, 100 hours of community work, and the same post-detention conditions as imposed by the District Court. The Court also noted that the appellant is six months pregnant and experiencing relationship difficulties, which contributed to her response to abuse alcohol. However, the Court found that the appellant had demonstrated insight by acknowledging that her actions placed other lawful road users at real risk. The Court allowed the appeal and varied the sentence accordingly.

Orders