Boaza v Police
[2015] NZHC 630
•31 March 2015
IN THE HIGH COURTOF NEW ZEALAND AUCKLAND REGISTRY
CRI-2014-404-369 [2015] NZHC 630
BETWEEN AIROE YORO BOAZA
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 30 March 2015 Counsel:
J D Pennick for Appellant
S B C O'Connor for RespondentJudgment:
31 March 2015
JUDGMENT OF BREWER J
This judgment was delivered by me on 31 March 2015 at 4:30 pm pursuant to Rule 11.5 High Court Rules.
Registrar/Deputy Registrar
Solicitors/Counsel: John Pennick (Auckland) for Appellant
Meredith Connell (Auckland) for Respondent
BOAZA v POLICE [2015] NZHC 630 [31 March 2015]
Introduction
[1] Mr Boaza was convicted by Judge RG Ronayne in the District Court at Auckland on 4 September 2014 following a defended hearing on a charge of refusing to provide a blood specimen (third or subsequent occasion).
[2] On 15 September 2014, Mr Boaza was sentenced by another Judge of the District Court. I do not know who. The District Court file has been lost and all efforts to locate it have failed. However, counsel are agreed that Mr Boaza was sentenced to 170 hours’ of community work, 12 months’ supervision and was made subject to an alcohol interlock licence regime.
[3] Mr Boaza complains that the sentence is manifestly excessive in that he should not have been sentenced to community work. I will look at his case afresh to determine whether a different sentence should be imposed.
The facts
[4] On 19 June 2013, at about 10:20 pm, Mr Boaza was stopped at a Police compulsory breath test checkpoint. He showed signs of recent alcohol consumption. He refused to provide a sample of breath for analysis and he refused to provide a blood specimen. He simply kept repeating that he had done nothing wrong and that he was a good Samaritan.
[5] Mr Boaza made his first appearance on the charge on 25 June 2013. Eventually, he was given a contingent trial date of 17 October 2013. The estimated time was one hour. He and his counsel were ready to proceed on that day, but his case was not reached. The same thing happened on 25 March 2014 and 30 July
2014. It was not until 4 September 2014 that his trial proceeded.
[6] Having been sentenced on 15 October 2014, Mr Boaza filed his notice of appeal on 11 November 2014. The appeal was called first in this Court on
12 December 2014 and had to be adjourned because the District Court file was lost. It was not until 12 February 2015, it appearing that the District Court file would not be located, that the appeal was scheduled for hearing on 30 March 2015.
[7] Mr Boaza has filed an affidavit setting out his personal circumstances subsequent to his sentence. He was cross-examined before me on aspects of it. I take it into account.
[8] Counsel are agreed, and I concur, that the other components of the sentence, being 12 months’ supervision and the imposition of the alcohol interlock licence regime, cannot be impeached. Further, it is beyond doubt that in normal circumstances 175 hours’ of community work is within the range available to the Court. This is because of Mr Boaza’s driving history. On 29 June 2000, he was convicted of driving with excess breath alcohol content for which he was disqualified from driving for six months and fined $600. On 14 June 2012, he was again convicted of driving with excess blood alcohol. On this occasion he was sentenced to 75 hours’ community work but special circumstances were found to apply and he was not disqualified from driving. I do not know what the special circumstances were. However, I do know that the offence with which I am concerned took place a year and five days after this sentence was imposed.
Issues
[9] Mr Boaza’s appeal is based, in part, on his personal circumstances which, he submits, make serving a sentence of community work unduly harsh. It is based additionally on the delay in bringing him to trial and in having his appeal heard. He submits that in this regard his right to be tried without undue delay, enshrined in s 25(b) of the New Zealand Bill of Rights Act 1990, has been breached. Accordingly, the issues I have to decide are:
(a) Do Mr Boaza’s personal circumstances make the existing sentence of community work, or any sentence of community work, manifestly excessive?
(b)If a sentence of community work is not manifestly excessive, should the sentence be reduced or eliminated because of undue delay?
Do Mr Boaza’s personal circumstances make the existing sentence of community work, or any sentence of community work, manifestly excessive?
[10] Mr Boaza founded a landscaping company in early 2013. It became successful very quickly. However, his ability to attract and retain business became difficult once he was disqualified from driving. He deposes that customers cancelled their jobs and, within three weeks of being disqualified, work to the value of
$100,000 was lost. As a result, he had to lay off three employees. The problem could have been solved if, after the initial period of complete disqualification, Mr Boaza had been able to afford an interlock device in order to obtain an interlock licence. He deposes, however, that he could not afford the approximately $2,500 that that would cost. In short, Mr Boaza deposes that his financial position is precarious.
[11] Mr Boaza also points to the financial impact of his disqualification from driving on his family. He and his wife are recent parents and care, in addition, for three teenage foster children, the eldest of whom has an intellectual disability. Mr Boaza’s wife is a diabetic, is responsible for all driving for the extended family, and this is difficult for her.
[12] So far as the impact of a sentence of community work is concerned, Mr Boaza deposes:1
35.Should my full sentence stand, I expect I could complete it. I have previously served a sentence of Community Work with perfect attendance which resulted in the maximum possible remission of hours. Attached at TAB E is a reference from the Falling Apple Trust where I performed my previous sentence.
36.However, it is also very important to myself, my family and my employees that I be able to do whatever is necessary to restore the company to its former level of success. A lengthy sentence of Community Work will make this very difficult as the time I will be required to attend to my community work hours will take me away from my business.
37.My commitment to my company is such that I must often work every day of the week at potentially any hour of the day. During the brief time prior to the lodging of my appeal, I had a great deal of difficulty meeting the reporting obligations connected to my sentence due to clashes with my work commitments.
1 Affidavit of Airoe Yoro Boaza, sworn/affirmed 20 March 2015.
38.Should my sentences stand, while I could complete them, this will require significant personal and professional sacrifices to be made beyond what my family and I have already faced. My company will be further compromised at a time when I am struggling to keep it afloat.
39.Seeing my company crippled has been heartbreaking for me. So much of the hard work I have put in over the last two years has been undone as a result of my offending. I humbly ask for the leniency of the Court on this occasion.
[13] Having read Mr Boaza’s affidavit, and having seen him give evidence, I am quite sure that the principal difficulty for him comes from the disqualification from driving. But that is not what I am concerned with. I am concerned with whether the imposition of community work makes for an overall sentence which is manifestly excessive in all the circumstances.
[14] I find that the demands of Mr Boaza’s business and his family situation do not make the imposition of a sentence of community work manifestly excessive. This is Mr Boaza’s third drink-driving conviction. On the previous occasion he was not disqualified from driving because of a finding of special circumstances. On this occasion, he seeks an indulgence with regard to community work because he is too busy with his work and has a demanding family situation. If these two factors could apply to make manifestly excessive a sentence of community work then far fewer sentences could be imposed.
[15] I note Mr Boaza’s evidence that in May he will start work on a major new
project and that he has had assistance from his bank. I cannot imagine that the
$2,500 to fund the apparently vital interlock device will not be able to be found. In this regard, cross-examination of him focused on items in his bank account records (annexed to his affidavit) which seem to show discretionary spending on alcohol and
gambling.2
2 Thousands of dollars spent at a “pokies bar” in October 2014, $5,200 spent in the same month with the New Zealand Racing Board, and $1,600 withdrawn in November 2014 at ASB Sky City Casino. Mr Boaza denied that this was anything other than withdrawing cash for the purposes of his business, including entertaining, but I found that unconvincing.
If a sentence of community work is not manifestly excessive, should the sentence be reduced or eliminated because of undue delay?
[16] There is no doubt that Mr Boaza’s trial could have been brought more swiftly to the Court. It was a short trial. One hour was estimated and I am told it took one hour and 10 minutes. Mr Boaza and his counsel had to attend, prepared to go to trial, on four occasions. Delay in coming to trial was not his fault, but was a result of the processes of the District Court.
[17] Further, the delay in the resolution of his appeal has been because the District
Court lost his file.
[18] The problem for Mr Boaza is what is meant by “undue delay”. There is no benchmark. It depends on the circumstances. Mr Pennick for Mr Boaza (having prepared thorough and careful submissions) accepted cautiously my thought that perhaps 12 months is an acceptable period of time for such a charge to be heard. This has not taken much longer.3
[19] Further, this has not been a case where delay has been caused by the prosecution. The prosecutor was also in attendance at the District Court ready to proceed each time the trial was scheduled contingently.
[20] Neither is this a case where Mr Boaza has been subject to a restrictive bail regime while he waited to be tried.
[21] Although I sympathise with the obvious difficulty Mr Boaza faced in having his trial determined, I cannot say that the overall length of time in these circumstances can be characterised as undue and a breach of s 25(b) of the
New Zealand Bill of Rights Act.
3 One month, and possibly two months, of the initial delay resulted from Mr Boaza taking time to find a lawyer.
Decision
[22] The appeal is dismissed.
Brewer J
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