[1] On 3 December 2014 the appellant, Mr Fonoti, was convicted of driving with excess breath alcohol (third or subsequent offence) under s 56(2) of the Land Transport Act 1998.

[2] The maximum sentence for this offence is imprisonment of up to two years or a fine of $6,000. In addition, the Court must disqualify the offender from driving for a minimum period of one year.

[3] On 28 January 2015 Mr Fonoti was sentenced to seven months imprisonment and two years disqualification from driving. He appeals the sentence of imprisonment on the grounds that it is manifestly excessive. He further submits that the District Court erred in failing specifically to consider whether a sentence of home detention could be imposed.

Factual background

[4] The appellant is 41 years old. He lives with his partner and two children aged 2 and 8. His partner’s parents reside at the same address. He is the principal breadwinner for the family.

[5] On 24 September 2014 he was stopped by a marked patrol vehicle on Karangahape Road, Auckland. He was exhibiting signs of recent alcohol consumption. An evidential breath test confirmed a reading of 778 micrograms of alcohol per litre of breath, almost twice the limit applicable at the time.

[6] He has five previous convictions for excess breath or blood alcohol in 1996,

1997, 2003, 2006 and 2008. The previous breath alcohol readings have typically been in the range of approximately 600-850.

[7] Mr Fonoti has 34 previous convictions in total including serious offending for which periods of imprisonment were imposed in 1992 and 2000. Latterly his offending has been less serious.

[8] The pre-sentence report indicated a medium risk of reoffending and medium risk of harm to others given his previous convictions for driving with excess blood alcohol and convictions for domestic violence.

[9] He is employed as a leading hand and machine operator by Fulton Hogan on a night shift. A positive reference from that firm was provided to me. He is said to be polite, courteous, punctual and with a good work ethic. The company has pre- employment, post incident and ‘reasonable cause’ drug and alcohol testing regimes. The appellant has given no cause to conduct a drug or alcohol test.

[10] Although it was not a matter in respect of which the District Court was addressed, I am advised by counsel that his partner has a serious medical condition identified as panhypopituitarism which requires semi-frequent hospital admissions for periods of three…

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 Fonoti v Police

Details

AGLC: Fonoti v Police [2015] NZHC 200
Case: [2015] NZHC 200
Decision Date: 18 February 2015

CaseChat Overview and Summary

In the case of Fonoti v Police, the appellant, Mr Daniel Fonoti, appealed his sentence of imprisonment for driving with excess breath alcohol, arguing it was manifestly excessive and that the District Court had failed to consider a sentence of home detention. The District Court had sentenced Mr Fonoti to seven months imprisonment and two years disqualification from driving, following his conviction for driving with excess breath alcohol, a third or subsequent offence. Mr Fonoti argued the sentence was excessive and that the court had not properly considered the possibility of home detention under the Sentencing Act. The High Court reviewed the case to determine if the District Court's sentence was materially erroneous under section 250 of the Criminal Procedure Act. The Court found that while the sentence was at the upper end of the range, it was not manifestly excessive. However, the Court determined that the District Court erred in not considering home detention as a sentencing option. The Court found that the District Court had focused too heavily on denunciation and deterrence, neglecting other relevant purposes and principles, such as the least restrictive outcome appropriate in the circumstances. The High Court allowed the appeal, setting aside the sentence of imprisonment and imposing a sentence of four months home detention, reduced to three months considering time served in custody. The Court imposed specific conditions for the home detention sentence, including electronic monitoring, alcohol and drug abstinence, and participation in relevant programs and treatments.

Orders