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 for which sentence was being imposed could be achieved by imposing a fine. As a result, I approach the matter afresh.

[7]                 The respondent acknowledges the cases cited by the appellant, which indicate that, typically, a fine together with disqualification is the usual sentence imposed for second drink driving offences. The respondent also acknowledges s 13 of the Act which provides:

13       Sentence of fine

(1)If a court is lawfully entitled under this or any other enactment to impose a fine in addition to, or instead of, any other sentence, the court must regard a fine as the appropriate sentence for the particular offence unless—

(a)the court is satisfied that the purpose or purposes for which sentence is being imposed cannot be achieved by imposing a fine; or

(b)the court is satisfied that the application of any of the principles in section 8 to the particular case make a fine inappropriate; or

(c)any provision applicable to the particular offence in this or any other enactment provides a presumption in favour of imposing any other sentence or requires the court to impose any other sentence; or

(d)the court is satisfied that a fine, on its own or in addition to a sentence of reparation, would otherwise be clearly inadequate in the circumstances.

[8]                 However, the respondent submits that, although a fine is the usual type of sentence imposed, it does not automatically follow that the sentence of community work imposed in this case was manifestly excessive.

[9]                 The respondent submitted that the offending was moderately serious given the alcohol reading of 597 micrograms and the appellant’s attempt to evade. I particularly agree the attempt to evade should be regarded as an aggravating factor.3

[10]             Mr Flavell has four previous driving related convictions, including one of refusing a request for a blood specimen in January 2013 for which he was ordered to pay a fine of $1,000 and court costs, as well as being disqualified from driving for six months.

[11]             In these circumstances, the Judge may well have considered, in terms of s 13, that a fine would not meet the principles and purposes of sentencing. However, as indicated, in the absence of the Judge’s sentencing notes, I consider this question afresh.

[12]             I consider that the Judge’s sentence is not manifestly excessive or wrong in principle. While another Judge may have imposed a fine, I consider that in the circumstances s 13 did not require a fine to be imposed. The aggravating feature of the attempt to evade combined with the previous convictions, the most relevant of which also involved refusing to co-operate with a police request and for which a fine was imposed, although almost six years prior, satisfy me that a fine in this case would not achieve the purposes of s 7, in particular holding Mr Flavell accountable, promoting a sense of responsibility, denouncing the conduct and deterrence. Even though Mr Flavell works six days a week, community work is the least restrictive sentence appropriate in the circumstances.4

[13]             The amount of community work – 60 hours – was relatively modest compared with the cases cited.5

[14]             In relation to the period of disqualification, the respondent accepted that the cases cited indicate that on a second conviction for driving with excess breath or blood alcohol, generally a period of disqualification in the range of six to 12 months will be

3      Kohu v Police [2013] NZHC 2758.

4      Section 8(g) of the Sentencing Act 2002.

5      120 hours in Burke v Police, above n 1, and Palmer v Police, above n 1, and 80 hours in Blyth v Police, above n 1.

appropriate. I accept that the period of 13 months’ disqualification imposed by the Judge was outside this range, albeit by a small margin having regard to previous periods of disqualification of six and seven months. In the circumstances, I consider that a shorter period of disqualification in the vicinity of 10 months would have been more appropriate.

Result

[15]             The appeal is allowed to the extent that the sentence of 13 months’ disqualification is quashed, and a sentence of 10 months’ disqualification is imposed. In all other respects the sentence stands.

Gault J