Dagbjartsson v Police
[2025] NZHC 347
•28 February 2025
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 the vessel manager which highlighted Mr Dagbjartsson’s vital role and the difficulty in finding engineers with his certification. The Judge recorded Mr Dagbjartsson’s submission that:8
The problem that is advanced for you is … that without you on board they will have to find someone else to take your place or not sail at all.
[9] The Judge considered that this was not a matter he could take into account in sentencing.9 Nor did he make any mention in his judgment of any family circumstances that could justify a discount.
[10] The Judge considered a community-based sentence was appropriate, and (as relevant) convicted Mr Dagbjartsson to four months’ home detention.
5 At [7].
6 At [8].
7 At [10].
8 At [9].
9 At [9].
Approach on appeal
[11] The Court must allow an appeal if it is satisfied that there was an error in the initial sentence and that a different sentence should be imposed.10 The Court’s focus is on the end sentence. The overall question on appeal is whether the sentence was manifestly excessive or is wrong in principle.11 If the process by which a sentencing judge arrives at the end sentence was flawed, but the sentence nonetheless can be properly justified by accepted sentencing principles, then the appeal Court will not intervene.12 Otherwise, the Court must dismiss the appeal.13
Appellant’s submissions
[12] Mr Dagbjartsson says that the Judge’s starting point of 12 months’ imprisonment was too high. He says the Judge gave insufficient weight to the 11-year gap since Mr Dagbjartsson’s last drink driving conviction.14 Mr Riley for Mr Dagbjartsson submits that offending separated by such a gap did not demonstrate a contumelious disregard for drink driving laws.15
[13] Mr Riley further submits that the Judge failed to account for factors particular to Mr Dagbjartsson that render a sentence of home detention disproportionate.16 Specifically, in considering any reduction for mitigating factors, the Judge gave insufficient weight to the offender’s personal circumstances regarding his marine engineering role and family situation, particularly related to his granddaughter.
Starting point
[14] There is no error in the Judge' starting point of 12 months. It is within range for a conviction for recidivist drink driving. The aggravating factors of the offending
10 Criminal Procedure Act 2011, s 250(2).
11 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30]-[35].
12 At [33] and [36].
13 Criminal Procedure Act, s 250(3).
14 Sentencing Act 2002, s 9(2)(g). This has been recognised in excess breath alcohol cases in Samson v Police [2015] NZHC 748 at [16]; Clotworthy v Police (2003) 20 CRNZ 439 at [22].
15 Carran v Police [2013] NZHC 1450 at [23].
16 Relying on Sentencing Act 2002, s 8(h) and s 8(i).
are the moderately high reading (over 2.5 times the legal limit) and that the appellant was banned from driving at the time.17
[15] In my view the Judge did have regard to the long period since Mr Dagbjartsson’s last conviction, which is a relevant mitigating factor. That is evident from his specific reference to “the last one in 2013” in his short-hand listing of the factors to be taken into account.
[16] The Judge’s error in calculation of discounts means that Mr Dagbjartsson had the benefit of an effective additional eight per cent discount (reducing the starting point from nine to eight months). I do not consider that this (adjusted) starting point is too high. Moreover, I accept Mr Goodwin’s submission that the long period since Mr Dagbjartsson’s last drink driving offending is reflected in the sentence of community detention that was imposed, rather than sentencing Mr Dagbjartsson to a term of imprisonment.
Mitigating factors
[17] The two mitigating factors relied upon relate to Mr Dagbjartsson’s role as an independent contractor and his family circumstances.
Marine engineering role
[18] In the District Court, Mr Dagbjartsson appears to have focused his submissions on the effect of his sentence on the company to whom he contracts and its staff. I agree with the Judge that that is not a matter to be taken into account here. I observe that, as things now stand, the company has had two months since Mr Dagbjartsson’s sentencing, during which it could prudently have taken steps to secure a temporary replacement marine engineer.
[19] In his oral submission in this Court, Mr Riley focussed on the risk that Mr Dagbjartsson will lose his job on the vessel if he is unavailable for the voyages taking place during his four months’ period on home detention. Typically, the vessel
17 Applying the approach in Samson v Police [2015] NZHC 748; Clotworthy v Police (2003) 20 CRNZ 439.
is at sea for six weeks and on shore for five weeks. Mr Riley submitted that the risk of Mr Dagbjartsson losing his contracting work permanently can be inferred from a reference in the vessel manager’s letter to a suitably qualified “replacement” engineer being needed if Mr Dagbjartsson is unavailable.
[20] That inference is wholly contrary to the tenor of the letter. This emphasises both the difficulty of finding marine engineers with Mr Dagbjartsson’s specialist qualifications and his dedicated and reliable service for the company dating back to 2011. The letter highlights Mr Dagbjartsson’s integral role in both daily operations and long-term planning. There is no sign that Mr Dagbjartsson’s ongoing role is at risk.
[21] Mr Riley highlights that a person on home detention may be absent from his home address with the approval of a probation officer to seek or engage in employment.18 He says that Mr Dagbjartsson is unlikely to be approved to undertake a six-week absence on a vessel at sea, even if it is for work. This is one of the bases on which he submits that home detention is a disproportionate sentence for him.
[22] I do not agree that this bears sufficiently on whether the four months’ home detention imposed was manifestly excessive in the present case. Home detention (relative to imprisonment) was an appropriate sentence. In my view, it was the least restrictive sentence available to provide the necessary denunciation and deterrence for such repeat offending (notwithstanding the passage of time), with the added dimension of driving while forbidden.
Family circumstances
[23] Mr Dagbjartsson has part time custody of his granddaughter (whose mother lives with him and has mental health issues). When Mr Dagbjartsson is away on the vessel, his granddaughter is cared for by another adult daughter.
[24] The impact on an offender’s dependent children has been accepted by courts as a relevant factor in sentencing, with the weight of this factor being circumstance
18 Sentencing Act, s 80C(3)(c)(ii).
dependent.19 Commonly the issue arises in a context where the offender is facing a custodial sentence, and hence would be unable to continue caring for the child.
[25] Mr Riley acknowledges that Mr Dagbjartsson will be able to care for his granddaughter in his home while on home detention. The issue is that, without the specific approval of a probation officer, he will be unable to leave home with her, for example, to take her to school or other activities. The impact is not so much on the child, but on the additional burden this may place on Mr Dagbjartsson’s other adult daughter who shares custody. I agree with the Crown that negative consequences for the child have not been established or at least are too speculative.
[26] Mr Riley also says that lost income while Mr Dagbjartsson is on home detention will have consequences for his granddaughter. It is correct that Mr Dagbjartsson’s income will be impacted due to the voyages that he will miss while on home detention. However, I have no information on his financial security and what tangible impact this short term loss of income will have.
[27] More generally, while Mr Dagbjartsson will evidently suffer some loss of income, the Crown is correct to point to the decision of Stonebanks where less speculative evidence of the impact on the defendant of a loss of employment did not lead to the Court concluding that a home detention sentence was manifestly excessive.
Result
[28] The appeal is dismissed. The defendant is to report to the Community Probation Service, 26-30 Walton Street, Whangarei by 2 pm on Wednesday 5 March 2025 to recommence his home detention sentence.
Anderson J
19 Campbell v R [2020] NZCA 356 at [41]. Philip v R [2022] NZSC 149 at [10], [53].
0
5
0