Brown v Police

[2016] NZHC 2893

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2016-488-000045 [2016] NZHC 2893

BETWEEN

BENJAMIN TE PERE BROWN

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	1 December 2016
Appearances:	Appellant in person with support from Mr Ken Brown J Scott for Respondent
Judgment:	1 December 2016

ORAL JUDGMENT OF FOGARTY J

[1]      Mr Brown was sentenced by Judge D J McDonald in the Whangarei District Council on 16 September last to 18 months’ imprisonment and to be released on the standard and special release conditions as contained in the pre-sentence report and disqualified from holding or obtaining a driving licence for a period of two years from today.

[2]      Mr Brown had pleaded guilty to the charge of driving with excess breath alcohol;  that  is  driving  drunk.    He  returned  a  level  of  1,121,  not  only  is  this extremely high, but also he has 10 previous convictions, all related to drink driving and for which he has already had at least two jail sentences of 18 months in 2002 and in 2009, another 18 months in jail.   Despite these two prison terms, he presented before the Court again.

[3]      The Judge recorded in his decision that he had received a whanau plan where his whanau wished Mr Benjamin Brown to be sentenced to home detention along

with community probation where they would keep a close eye on him.   Judge

BROWN v NEW ZEALAND POLICE [2016] NZHC 2893 [1 December 2016]

McDonald was aware that should this programme be put into place, Mr Benjamin Brown would be primarily under the eye of Mr Ken Brown, a man who Judge McDonald knew and  clearly respects.   Mr Ken Brown has appeared  today and spoken very powerfully in support of Mr Benjamin Brown.  Were this a first, second or even a third offence, I would have enough discretion under the law and there be no previous prison sentences, I may have had enough discretion under the law to go with Mr Ken  Brown’s  solution, but given the 10 previous convictions  and two previous sentences to jail, I am of the view that Judge McDonald’s decision was the only decision he could come to and that in fact in context, it is a lenient decision.  It is the third prison sentence of 18 months.  He could easily have pushed that sentence up higher.

[4]      Therefore I must, as a matter of law, dismiss the appeal, but as I have said more than once to Mr Ken Brown and to Mr Benjamin Brown, I hope that upon Mr Benjamin Brown’s release from prison, he takes up the offer from his whanau to be wrapped in his whanau’s care and to accept the guidance of his whanau, help from the whanau to beat what is clearly a serious drinking problem and that can only be to

Mr Benjamin Brown and to the community’s betterment should that happen.

Fogarty J

Solicitors:

Marsden Wood Inskip & Smith, Whangarei
Copy to: Appellant, Mr B Brown