Flavell v Police - [2019] NZHC 254

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-432

[2019] NZHC 254

BETWEEN
RUSIATE FLAVELL

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 25 February 2019

Appearances:

S Mutch for the Appellant E Mok for the Respondent

Judgment:

25 February 2019

ORAL JUDGMENT OF GAULT J

Solicitors / Counsel:
Mr S Mutch, Barrister, Auckland, on instructions from Mr B Meyer, Barrister, Auckland Ms E Mok, Meredith Connell, Office of the Crown Solicitor, Auckland

FLAVELL v POLICE [2019] NZHC 254 [25 February 2019]

[1] Mr Flavell pleaded guilty in the District Court to one charge of driving with excess breath alcohol. On 19 December 2018 Judge S J Maude sentenced Mr Flavell to 60 hours community work and disqualified him from driving for 13 months. Mr Flavell appeals on the ground that sentence is manifestly excessive.

[2] The summary of facts records that at 8:21 pm on 6 December 2018 police observed a vehicle evade a compulsory breath checkpoint. Police gave chase and found Mr Flavell’s vehicle parked. Mr Flavell was approximately 50 metres away from the vehicle. Mr Flavell was breath tested and his breath was found to contain 597 micrograms of alcohol per litre of breath, in excess of the legal limit of 400 micrograms per litre. Mr Flavell admitted the facts as outlined and explained he was heading home after a few drinks after work.

[3] The Judge’s sentencing notes are unavailable due to a transcription malfunction. In a busy list, it may be that there were very limited sentencing remarks.

The argument on appeal

[4] Mr Mutch, for the appellant, submitted that the imposition of 60 hours community work is manifestly excessive and inconsistent with s 8(g) of the Sentencing Act 2002 (the Act). He submitted a financial penalty by way of a fine would have been more appropriate, especially having regard to the appellant’s ability to pay such a fine immediately. Mr Mutch also submitted the disqualification for 13 months is manifestly excessive. He submitted a disqualification of up to 10 months would have been more appropriate. Mr Mutch cited three similar cases,1 which I have considered for consistency.2

[5] Ms Mok, for the respondent, submitted that the sentence of 60 hours community work was not manifestly excessive. The respondent accepts there is some force in the appellant’s submission that the period of disqualification was outside of the range typically imposed in similar cases, albeit by a relatively small margin.

1 Burke v Police HC Christchurch CRI-2007-409-165, 20 September 2007; Palmer v Police HC Auckland CRI-2009-404-262, 5 February 2010; and Blyth v Police [2012] NZHC 875.
2 Section 8(e) of the Sentencing Act 2002.

Ms Mok acknowledged that a period of disqualification in the vicinity of nine or 10 months would have been more appropriate in the circumstances.

Decision

[6] In the absence of the Judge’s sentencing notes, I do not know whether the Judge specifically formed a view as to whether the purpose or purposes…

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 Flavell v Police

Details

AGLC: Flavell v Police [2019] NZHC 254
Case: [2019] NZHC 254
Decision Date: 25 February 2019

CaseChat Overview and Summary

Mr. Flavell appealed against a sentence imposed on him by the District Court for driving with excess breath alcohol. The District Court had sentenced him to 60 hours of community work and disqualified him from driving for 13 months. The appeal was grounded on the argument that the sentence was manifestly excessive. The appeal was heard by Gault J, who concluded that the sentence was not manifestly excessive, but the disqualification period of 13 months was excessive.

The central issue before the court was whether the sentence imposed by the District Court was manifestly excessive. The appellant argued that the 60 hours of community work and the 13-month driving disqualification were excessive. The respondent argued that the sentence was not manifestly excessive, although the disqualification period was somewhat longer than the usual range for similar cases.

The court examined the sentence in light of the Sentencing Act 2002. While the court acknowledged that a fine is the usual type of sentence for second drink driving offences, it also noted that a fine may not always be the most appropriate sentence. The aggravating factor of the appellant's attempt to evade the police, combined with his previous convictions, led the court to conclude that a fine would not achieve the purposes of the Sentencing Act. The court found the 60 hours of community work to be a modest sentence, but the 13-month driving disqualification was deemed to be excessive, and a 10-month disqualification was considered more appropriate.

The court allowed the appeal to the extent that the 13-month driving disqualification was quashed, and a 10-month disqualification was imposed. The rest of the sentence was upheld. This decision highlights the importance of considering the specific circumstances of each case when determining an appropriate sentence and the need for consistency in sentencing for similar offences.

Orders