Faalogo v Police - [2023] NZHC 1302

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-404-417

[2023] NZHC 1302

BETWEEN
MORMON FAALOGO

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 29 May 2023

Appearances:

J Schlebusch for Appellant J L Gibson for Respondent

Judgment:

29 May 2023

JUDGMENT OF WOOLFORD J

Solicitors: Meredith Connell (Office of the Crown Solicitor), Auckland Counsel: J Schlebusch, Auckland

FAALOGO v NEW ZEALAND POLICE [2023] NZHC 1302 [29 May 2023]

[1] On 6 October 2022, Mormon Faalogo pleaded guilty to a charge of driving a motor vehicle with excess breath alcohol. Judge R von Keisenberg disqualified him for seven months and sentenced him to 12 months’ supervision.1 The Judge did not impose any monetary penalty.

[2]Mr Faalogo now appeals against the sentence of 12 months’ supervision.

Factual background

[3] At about 9:15 pm on Monday, 11 April 2022, the appellant was driving a Holden motor vehicle north on Aotea Quay, Wellington. He was stopped for exceeding the posted speed limit of 50 kilometres per hour by driving at 70 kilometres per hour.

[4] Breath test procedures were commenced, and a subsequent evidential breath test gave a positive reading of 545 micrograms of alcohol per litre of breath. The appellant declined to make any statement.

District Court sentence

[5] After setting out the summary of facts, the Judge noted that this was the appellant’s second similar offence. He had been convicted of refusing a blood specimen in 2017. The Judge said that she had heard from appellant’s counsel that he had been unwell, having spent some time in hospital and that he was not in employment. The Judge did comment, however, that he had not learnt his lesson from five years ago.

[6] The Judge proceeded to disqualify the appellant for seven months because this was his second such offence. The Judge noted that the appellant had been sentenced to 18 months’ intensive supervision in 2019 for refusing a blood specimen. On this occasion, the Judge sentenced the appellant to a sentence of 12 months’ supervision. As a condition of that supervision, the appellant was to attend any courses or programmes as recommended by the Department of Corrections, including programmes specifically to address alcohol or drug issues.

1 Police v Faalogo [2022] NZDC 22736.

Submissions

Appellant’s submissions

[7] The appellant appeals only against the sentence of 12 months’ supervision. He submits that the sentence is manifestly excessive and the Court should have imposed a fine together with disqualification.

[8] The appellant submits that a fine is most often the appropriate sentence (together with disqualification) for a second drink drive offence.

[9]The appellant refers to a number of cases – Blythe,2 Palmer,3 Fredricsen,4 and

Gudsell.5

[10] Counsel submits that the appellant’s case at 545 micrograms of alcohol per litre of breath very closely resembles Blyth at a blood alcohol level of 111 micrograms of alcohol per 100 millilitres of blood, equivalent to a breath level of about 555 micrograms, is higher…

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.

Continue reading Faalogo v Police

Details

AGLC: Faalogo v Police [2023] NZHC 1302
Case: [2023] NZHC 1302
Decision Date: 29 May 2023

CaseChat Overview and Summary

In Faalogo v Police, Mormon Faalogo appeals against his sentence of 12 months' supervision, imposed by Judge R von Keisenberg for driving a motor vehicle with excess breath alcohol. Faalogo was found to have a breath alcohol level of 545 micrograms per litre of breath when stopped for speeding. This was his second drink-driving offence, having previously been convicted in 2017 for refusing a blood specimen. The District Court Judge disqualified Faalogo for seven months and sentenced him to 12 months' supervision, without imposing any monetary penalty. Faalogo contends that the sentence of supervision is manifestly excessive and that the Court should have imposed a fine instead. The respondent submits that the sentence is not manifestly excessive and that the Judge considered whether to fine Faalogo and concluded it was inappropriate.

The court examined whether the Judge erred in not imposing a fine. Section 250 of the Criminal Procedure Act 2011 allows an appeal if there is an error in the sentence and a different sentence should be imposed. The Sentencing Act 2002 guides that a fine is the appropriate sentence for an offence unless certain conditions apply. The Judge considered Faalogo’s circumstances, including his recent illness and lack of employment, and determined that a fine was inappropriate. The Judge's decision to focus on denunciation and deterrence, rather than imposing a fine, was deemed appropriate given Faalogo’s history of reoffending. The appeal was dismissed as no error in the Judge’s decision was shown.

Orders