Dagbjartsson v Police - [2025] NZHC 347

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2024-488-000132 [2025] NZHC 347

BETWEEN
STIGUR LUDUIK DAGBJARTSSON

Appellant

AND

NEW ZEALAND POLICE

Defendant

Hearing: 26 February 2025

Appearances:

J Riley for Appellant C Megala for Crown

Judgment:

28 February 2025

JUDGMENT OF ANDERSON J

This judgment was delivered by me on 28 February 2025 at 3.00 pm.

……………………………… Registrar/Deputy Registrar

Solicitors:
Marsden Woods Inskip Smith, Whangarei

DAGBJARTSSON v POLICE [2025] NZHC 347 [28 February 2025]

[1] Stigur Dagbjartsson has pleaded guilty to charges of driving under the influence of alcohol (third or subsequent)1 and driving whilst forbidden.2 On 16 December 2024 he was sentenced by Judge D J McDonald to four months’ home detention subject to conditions, a $400 fine and 13 months’ disqualification from driving.3

[2] Mr Dagbjartsson appeals his sentence as it relates to the home detention element. He says that the sentence was manifestly excessive, and that the least restrictive outcome that could have been ordered was a combination of community work and supervision (or intensive supervision).

The facts

[3] Mr Dagbjartsson has five previous convictions for drink driving, with his most recent conviction being from 2013. As well as this, in 2007 he was forbidden to drive by Police until he obtained an appropriate New Zealand driver’s licence. The consequences of driving while forbidden were explained to him, and he said he understood. In addition to these convictions, Mr Dagbjartsson has three convictions for driving whilst disqualified.

[4] On 30 June 2024, Mr Dagbjartsson was stopped in a roadside traffic stop. His breath was found to contain 676 micrograms of alcohol per litre of breath. The legal limit is 250 micrograms of alcohol per litre of breath.

[5] Subsequent checks revealed that Mr Dagbjartsson was forbidden to drive. He stated to Police that he held an international licence so believed that he did not need a New Zealand driver’s licence.

District Court decision

[6] In setting a starting point of 12 months’ imprisonment the Judge took into account:4

1      Land Transport Act 1998, ss 56(1) & 56(4). Maximum penalty of two years’ imprisonment.
2      Section 52(1)(c). Maximum penalty of $10,000 fine.
3      New Zealand Police v Dagbjartsson [2024] NZDC 31280.
4 At [6].

(a)the reasonably high level of alcohol in Mr Dagbjartsson’s breath;

(b)his five previous convictions, including his “last one in 2013”; and

(c)that there was no driving fault, but he had been forbidden to drive.

[7] Regarding mitigating factors, the Judge stated that Mr Dagbjartsson’s guilty plea entitled him to a “20-25%” reduction.5 The Judge calculated that this would reduce the sentence to eight months’ imprisonment.6 The sentence of eight months’ imprisonment was then commuted to four months’ home detention.7 The Judge’s calculation contained an error in favour of the appellant. A 25 per cent reduction equates to a sentence of nine months’ imprisonment.

[8] Mr Dagbjartsson is a marine engineer on a fishing vessel in the deep south. At sentencing he produced a letter from…

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: [2025] NZHC 347
Decision Date: 28 February 2025

CaseChat Overview and Summary

Stigur Luduik Dagbjartsson appeals against his sentence imposed by Judge D J McDonald in the District Court at Whangarei, which included four months' home detention, a $400 fine, and 13 months' disqualification from driving. The appeal focuses on the appropriateness of the home detention sentence. Dagbjartsson argues that the sentence was manifestly excessive and that a combination of community work and supervision or intensive supervision would have been a more appropriate and less restrictive outcome.

The legal issues in this case revolve around whether the sentence imposed was manifestly excessive or wrong in principle, and whether the District Court's process in arriving at the sentence contained any errors. The appeal court must consider if the sentence was appropriately justified by accepted sentencing principles. The appeal court's role is to determine if the sentence was excessively harsh or if it adhered to the principles of justice and proportionality in sentencing repeat offenders.

The court found no error in the District Court's starting point of 12 months' imprisonment, considering the moderately high level of alcohol in Dagbjartsson's breath and his previous convictions, including his last one in 2013. The court also acknowledged the long period since his last drink driving conviction as a mitigating factor. However, the court did not consider Dagbjartsson's role as a marine engineer and his family circumstances as sufficient to warrant a less restrictive sentence. The court determined that home detention was the least restrictive sentence to provide necessary denunciation and deterrence for repeat offending, with the added dimension of driving while forbidden. The appeal was dismissed, and Dagbjartsson was ordered to recommence his home detention sentence.

Orders