Fox v Police HC Hamilton CRI 2010-419-49

[2011] NZHC 2062

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2010-419-49

BETWEEN  TONY CRAIG MICHAEL FOX Appellant

ANDNEW ZEALAND POLICE Respondent

CRI 2010-419-61

AND BETWEEN            JOHN ROPATA FOX Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         23 August 2011

Counsel:         Mr Stevenson, on behalf of Tony Fox and John Fox (Tony Fox, in person)

J N Foster for Respondent

Judgment:      23 August 2011

(ORAL) JUDGMENT OF HEATH J

Solicitors:

Crown Solicitor, Hamilton
Copy to:

Appellants in person

FOX V NEW ZEALAND POLICE HC HAM CRI 2010-419-49 23 August 2011

Appeals

[1]      I  have  heard  together  appeals  by Tony  and  John  Fox  (brothers)  against decision made in the District Court at Morrinsville last year.  With my permission, Mr Stevenson, their father, assisted in the presentation of the appeals.

[2]      Due to a systemic failure, the appeals were not transmitted to this Court until recently. That explains the delay in hearing them.

Tony Fox’s appeal

[3]      Tony Fox  appeals against his conviction on a charge of driving with  an excess breath alcohol concentration.   On 31 July 2009, shortly after 9pm, Mr Fox was driving a vehicle with a breath alcohol concentration of 400 micrograms of alcohol per litre of breath.  At the time, Mr Fox was 17 years old; meaning that the legal limit was 150 micrograms of alcohol per litre of breath.

[4]      The hearing took place in the District Court at Morrinsville, on 20 January

2010.   Judge Tompkins found that each element of the offence had been proved. While Mr Fox had raised issues about a direction from police officers to drive after the passive breath test had been taken, the Judge took the view that nothing turned on the point.  The issue remained whether Mr Fox was in fact driving, prior to police intervention, with an excess breath alcohol concentration.

[5]      Mr Fox and his father, Mr Stevenson, have explained to me the circumstances in which the hearing took place before Judge Tompkins.  They have concerns about the way in which the case was conducted and an inability of Mr Fox, as a 17 year old, to question the police officer adequately.  Nevertheless, Mr Fox does not dispute that he was driving with an excess breath alcohol concentration. I have explained that the procedural error of requiring him to drive after a positive screening test is not relevant to the ultimate decision on the charge.

[6]      For that reason, the appeal against conviction is dismissed.

[7]      During the course of the hearing I had discussions with both Mr Stevenson and Mr Fox about Mr Fox’s problems with alcohol.  Commendably, Mr Fox is now working six days a week, in gainful employment.  Nevertheless, there remain some difficulties which have not yet been addressed whether by way of counselling or otherwise. When sentenced Mr Fox was required to undertake 150 hours community work and was disqualified from driving for six months.  The disqualification period has been served.  I have concerns about whether, on the information now available to me, the sentence of 150 hours community work is appropriate.  It has not yet been served.

[8]      In my view, Mr Fox’s personal situation will better be served by quashing the sentence of 150 hours community work and in its place substituting a sentence of supervision for one year.  Supervision will be on standard conditions, with a special condition that Mr Fox abide by any direction of a probation officer in relation to the attendance of any programme or counselling relating to alcohol abuse, or substance abuse generally.  Mr Fox shall report to a probation officer at Paeroa within 72 hours of this decision being given.  I allow an appeal against sentence to that limited effect.

John Fox’s appeal

[9]      Mr John Fox appeals against a finding made by Justices of the Peace, that on

30 December 2009 at 11.30am at Matamata and at 6.35pm at Te Aroha, he was driving a motor vehicle on a road contrary to conditions in his learner licence.  The issue was whether he was accompanied in that vehicle by a suitably qualified person.

[10]     Mr Stevenson was with his son.  Mr Stevenson acknowledges that he did not have a Class 1 licence at the relevant time.

[11]     An  issue  raised  by Mr  Fox  at  the  hearing  and  by Mr  Stevenson  today, concerned the circumstances in which the offending occurred.   They allege that, because the land to which they were travelling to and from was Maori land of significance to them, there was no jurisdiction for the laws of New Zealand to apply. That issue has been resolved a number of times.  New Zealand law does apply.  I am also bound by decisions of higher courts to hold that it is not a defence to the charge.

[12]     I am satisfied that the Justices were entitled to find that Mr Fox was driving a vehicle in breach of his learner licence.   They correctly found the charge proven. Appropriate penalties were imposed.

[13]     The appeal is dismissed.

P R Heath J