Findlay v Police

[2023] NZHC 2960

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

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

CRI-2023-488-69

[2023] NZHC 2960

BETWEEN

PAUL FINDLEY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Judgment: 24 October 2023

JUDGMENT OF BREWER J

This judgment was delivered by me on 24 October 2023 at 10.30 am

Registrar/Deputy Registrar

Solicitors:

Marsden Woods Inskip Smith (Whangārei) for Respondent

Copy to Appellant in person

FINDLEY v POLICE [2023] NZHC 2960 [24 October 2023]

Introduction

[1]                 Mr Findley appeals the sentence  imposed  on  him  by  Judge T Bayley  on 26 September 2023.1

[2]                 Mr Findley represents himself. In his notice of appeal he ticked the “No” box in answer to the question: “Do you request an oral hearing?” Mr Findley did not appear on 13 October 2023 when the case was first called. I adjourned the call of the case to 20 October 2023 and said that if Mr Findley did not appear I would take it that he has filed all the material he wants the Court to take into account. The appeal would then be decided on the papers.

[3]                 Mr Findley did not appear on 20 October 2023. I was advised by the registry that Mr Findley had been spoken to by telephone and been told the date and time of the call of his case.

[4]I will decide the appeal on the papers.

Background

[5]                 Mr Findley was charged with failing to permit a blood specimen to be taken after having failed to satisfactorily complete a compulsory impairment test and having twice previously been convicted of similar offending.2 He pleaded guilty.

[6]The summary of facts to which Mr Findley pleaded guilty records:

On 13 June 2023, the Defendant was the driver of a Ford Focus motor vehicle, registration ERA255, on Hatea Drive, Whangārei.

The Defendant drove into a traffic scene controlled by Police following a vehicle accident. He has ignored Police instruction regarding his movement in the area.

When spoken to, the Defendant appeared erratic in his mannerisms and behaviour.

1      Police v Findley [2023] NZDC 22289.

2      Land Transport Act 1998, s 60(1)(a) and 60(3). The maximum penalty is two years’ imprisonment or a fine not exceeding $6,000. The Judge is required to order a disqualification period from holding or obtaining a driver licence of more than one year.

He was taken through a Compulsory Impairment Test which he has failed to complete to a satisfactory manner and when required to provide a blood sample for analysis has refused to do so.

[7]                 Judge Bayley noted that the most recent of Mr Findley’s previous convictions was in 2018.3 On both occasions Mr Findley was fined. The Judge said:

[3]        Given it is a third conviction for offending of this type, I think we extend some help to you by way of a sentence of supervision, so that is not a financial penalty; a sentence of supervision with conditions that you are to attend any counselling, treatment or programmes as directed by Probation.

[4]        I am also persuaded by Mr Day to backdate your disqualification period. The supervision sentence is going to be seeing you attend probation and they will help you with any counselling or treatment. They might be able to help you with some skills so you can get yourself back into employment, all right, so it is not a fine today. Supervision, you will have an order to sign before you go. I must disqualify you for a period of one year and one day but I backdate it, pursuant to s 85 of the Act, to being on 13 June. So that effectively takes off six months of what would have been quite a lengthy disqualification period. You will be disqualified therefore through to 14 June 2024.

[8]In his notice of appeal, Mr Findley said:

The judge thought I might be helpfull  (sic) for me to report every week for  9 months. I do not drink or use any drugs so this ‘extra sentence’ is not helpfull to me at all rather an extreme inconvenience for me. Plus there is a risk of breach which will result in further punishment.

[9]                 Judge Bayley had before her a letter from Mr Findley which the Judge acknowledged as providing some context as to what happened. In it, Mr Findley explained that he has mental health issues. In his notice of appeal he attributed his behaviour to the effects of prescribed medicines.

[10]              Crown counsel submits that the Judge did not err in her assessment of the features relevant to the offending and to the appellant.

Discussion

[11]              This is Mr Findley’s third conviction for this type of offending. Previously he was fined. A sentence of supervision was not outside the Judge’s sentencing

3      The first qualifying conviction was in 2009.

discretion, and the Judge intended the sentence to be rehabilitative given Mr Findley’s personal circumstances. The period of nine months is not excessive given the maximum penalty.

[12]              The principal reason for Mr Findley’s appeal, it seems, is that he believes that the Judge sentenced him to report every week during the term of supervision. Crown counsel has helpfully provided me with a copy of the Judge’s order for the sentence of supervision. It does not require weekly reporting. The order requires Mr Findley to report to a probation officer in his residential area as soon as practicable, but not later than 72 hours, after the start date of the sentence. The Court imposed special conditions requiring Mr Findley to undertake such counselling and/or substance abuse treatment as his probation officer directs.

[13]              The standard conditions include that Mr Findley must report to his probation officer when required.

[14]              Mr Findley’s assertion that he does not drink or take drugs is inconsistent with his criminal history.

Decision

[15]              An appeal against sentence proceeds by way of rehearing. I have considered the material  which  was  before  Judge  Bayley  and  I  have  taken  into  account  Mr Findley’s notice of appeal and the Crown’s submissions. I see no error in Judge Bayley’s decision. The end sentence of nine months’ supervision is well within the range of sentence available to  the Judge and  it  is  intended  to  be rehabilitative.  Mr Findley will have to report to his probation officer only for purposes associated with his sentence. It is not a manifestly excessive sentence.

[16]The appeal is dismissed.

Brewer J