Bright v Police - [2015] NZHC 231

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2015-443-0006 [2015] NZHC 231

BETWEEN
TROY LIONEL BRIGHT

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 18 February 2015

Appearances:

J C Hannam for Appellant
A W M Britton for Respondent

Judgment:

20 February 2015

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 20 February 2015 at 5 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date: ...................................

Solicitors: Hannam & Co Lawyers, New Plymouth
C & M Legal, Crown Solicitor, New Plymouth

BRIGHT v POLICE [2015] NZHC 231 [20 February 2015]

[1] I allowed this appeal having heard counsel’s submissions and these are my reasons.

[2] The Appellant is the holder of a “zero alcohol” licence. On 4 February 2015 he pleaded guilty to driving with breath containing alcohol not exceeding
400 micrograms (as was the maximum permitted at the time) of alcohol per litre of breath.1

[3] The maximum penalty for the offence is imprisonment for a term not exceeding three months or a fine not exceeding $2,250. The Court is also required to disqualify the defendant from holding or obtaining a driver licence for three months or more.2

[4] Judge A C Roberts convicted and sentenced the Appellant to two months’ imprisonment and disqualified him for four months, commencing 4 February 2015. The Judge also imposed various release conditions. The Appellant takes no issue with either the period of disqualification or the conditions. The issue on the appeal is whether a sentence of imprisonment was required and if so the term of that sentence.

[5] The appeal is brought pursuant to s 244(1) Criminal Procedure Act 2011

(“CPA”). Sections 250(2) and (3) CPA provide:

250 First appeal court to determine appeal

…

(2) The first appeal court must allow the appeal if satisfied that—

(a) for any reason, there is an error in the sentence imposed on conviction; and

(b) a different sentence should be imposed.

(3) The first appeal court must dismiss the appeal in any other case.

1 Land Transport Act 1998, s 57AA(1).
2 Section 57AA(3).

[6] The ground of appeal is that a period of two months’ imprisonment was manifestly excessive. That remains the test on an appeal against sentence of this nature – see Tutakangahau v R.3

Background

[7] The Appellant was issued with a zero alcohol licence on 9 October 2014. Such a licence takes effect for three years.4 Less than one month later, at about
11.45 pm on 7 November 2014, the Appellant was stopped by Police and a subsequent evidential breath test returned a result of 390 micrograms of alcohol per litre of breath. Counsel agreed that nothing in the Appellant’s driving that evening drew the Police’s attention to him. The Appellant pleaded guilty at an early stage.

[8] It would not have been an offence as at 7 November 2014 for a person holding the usual licence to drive with a reading of 390 micrograms of alcohol per litre of…

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: [2015] NZHC 231
Decision Date: 20 February 2015

CaseChat Overview and Summary

In the case of Bright v Police, the appellant, Troy Lionel Bright, appealed a conviction and sentence imposed by Judge A C Roberts. Bright was convicted of driving with breath alcohol exceeding the permitted limit while holding a "zero alcohol" licence. The maximum penalty for this offence includes imprisonment for up to three months, a fine not exceeding $2,250, and disqualification from holding or obtaining a driver licence for three months or more. Judge Roberts sentenced Bright to two months' imprisonment and disqualified him from driving for four months, commencing on 4 February 2015. Bright appealed the imprisonment term, arguing it was excessive. The appeal was brought under section 244(1) of the Criminal Procedure Act 2011, which mandates that the first appeal court must allow the appeal if there is an error in the sentence imposed and a different sentence should be imposed. The court was required to decide whether the two-month imprisonment sentence was manifestly excessive and, if so, what an appropriate alternative sentence would be.

Justice Peters found that while the starting point of two months' imprisonment and the uplift for prior offending were within the range available to the Judge, the overall sentence was excessive. The court noted that the appellant had a history of similar offences, including five previous convictions for driving with excess breath or blood alcohol within a short period. Despite this, the court found that community work would not be an adequate response to the offending and that a sentence of community detention would be more appropriate. After considering the aggravating factors and the early guilty plea, Justice Peters determined that a sentence of two weeks' community detention, with a curfew of 7 pm to 7 am, Monday to Sunday inclusive, would be a suitable alternative to the two-month imprisonment sentence.

Justice Peters set aside the order imposing a term of imprisonment and substituted it with a sentence of two weeks' community detention, with a curfew of 7 pm to 7 am, Monday to Sunday inclusive. The other orders made by Judge Roberts, including the four-month disqualification period, remained in place. This decision underscores the importance of proportionality in sentencing and the need for courts to consider the full context of an offender's history and circumstances when determining an appropriate sentence.

Orders