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 than Gudsell with a level of 449 micrograms, but lower than Fredricsen with a level of 715 micrograms. Counsel notes the high fine of $2,000 in Palmer for a second offence. Counsel, therefore, submits that a significant fine is appropriate in place of the lengthy term of supervision.

Respondent’s submissions

[11]              Counsel for the respondent submits that the sentence of supervision was not manifestly excessive. The appellant’s complaints predominantly go to the weighting the Judge gave to the appellant’s prior conviction and the fact that the Judge did not impose a fine. The respondent submits they are not errors or grounds for a successful appeal.

2      Blyth v New Zealand Police [2012] NZHC 875.

3      Palmer v New Zealand Police HC Auckland CRI-2009-404-00262, 5 February 2010.

4      Fredricsen v New Zealand Police [2018] NZHC 2721.

5      Gudsell v New Zealand Police [2021] NZHC 1684.

[12]              Counsel for the respondent also refers to a number of cases – Walsh,6 McLachlan,7 and Callaghan.8 The respondent submits that, given that this was the appellant’s second offence, the sentence of supervision imposed was within a justifiable range. The Judge considered whether to fine him and concluded that sentence was inappropriate. In those circumstances, the respondent submits the Court should dismiss the appeal.

Discussion

[13]              Section 250 of the Criminal Procedure Act 2011 provides that first appeal court must allow an appeal if satisfied that there is, for any reason, an error in the sentence and that a different sentence should be imposed.

[14]              The Sentencing Act 2002 provides guidance on the use of a fine. Section 13 states that a Court must regard a fine as the appropriate sentence for a particular offence unless satisfied that the purpose or purposes for which the sentence imposed cannot be met by imposing a fine, or the Court is satisfied that any of the principles in s 8 of the Sentencing Act make a fine inappropriate. Section 8(g) also provides that a court must impose the least restrictive outcome that is appropriate in the circumstances.

[15]              Counsel for the respondent concedes that he has been unable to identify a case in this Court where 12 months’ supervision was explicitly upheld for a second offence under the Land Transport Act 1998. However, that is not a ground in and of itself for a successful appeal.

[16]              The Judge clearly considered whether a fine would be appropriate. She heard that the appellant had been unwell, having spent some time in hospital and that he was not working. Although a substantial fine is often imposed for a second drink drive offence, that does not always have to be the case. Having heard something of the appellant’s circumstances, the Judge chose not to impose a monetary penalty on him. It appears denunciation and deterrence were the dominant purposes of the Judge’s

6      Walsh v Police [2014] NZHC 320.

7      McLachlan v Police [2017] NZHC 805.

8      Callaghan v Police [2021] NZHC 2060.

decision. She chose not to impose a fine, but still needed to deter the appellant from reoffending. She stated he had not learnt his lesson from last time.

[17]              Although counsel for the appellant says he would prefer a fine to be imposed, there is no evidence before the Court of his inability to complete a sentence of supervision.

Result

[18]No error on the part of the Judge has been shown. The appeal is dismissed.

Woolford J