Fredricsen v Police

[2018] NZHC 2721

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

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

CRI-2018-488-000035

[2018] NZHC 2721

BETWEEN

MOANA TAI ERIC FREDRICSEN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	15 October 2018
Counsel:	P H Tomlinson for appellant T Needham for respondent
Judgment:	19 October 2018

JUDGMENT OF KATZ J

This judgment was delivered by me on 19 October 2018 at 4.00 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors:           Marsden Woods Inskip Smith, Office of the Crown Solicitor, Whangarei Counsel: P H Tomlinson, Barrister, Auckland

FREDRICSEN v NEW ZEALAND POLICE [2018] NZHC 2721 [19 October 2018]

Introduction

[1]    Moana Tai Fredricsen was convicted of driving with excess breath alcohol. His breath alcohol level was 715 micrograms of alcohol per litre of breath. On 15 August 2018, he was sentenced in the Kaikohe District Court to a fine of $1300 and disqualified from driving for a year and a day.

[2]    Mr Fredricsen appeals his sentence. Mr Tomlinson submitted, on his behalf, that the appropriate sentence is a fine of $700–$900 and disqualification for a period of six to seven months.

Approach to appeal

[3]    Section 250 of the Criminal Procedure Act 2011 provides that a first appeal court must allow an appeal against sentence if satisfied that, for any reason, there is an error in the sentence imposed on conviction, and a different sentence should be imposed. In every other case, the court should dismiss the appeal.

[4]    The approach under s 250 of the CPA is to determine whether there was an error “intrinsically or as a result of additional material”.1 If there is an error, then the High Court is to form its own view as to the appropriate sentence.2 A sentence may be set aside where it was manifestly excessive. Whether that is the case will depend on the end sentence, rather than the process by which the sentence was reached. A sentence within range will not be altered, but if the sentence is manifestly excessive then the Court will form its own view of the appropriate sentence.3

[5]    No formal sentencing notes are available, so I do not have any information before me as to the reasoning of the sentencing Judge. I will therefore approach the sentencing exercise de novo.4

1      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].

2 At [30].

3      At [30]–[36].

4      See Morris-Stewart v Police [2016] NZHC 1030 at [7]; Goundan v Police HC Wellington (1999) AP97/99, 28 May 1999.

[6]    The notice of appeal was filed four days late. The delay has been adequately explained and I am satisfied that an extension of time should be granted for the filing of the appeal.

Factual background

[7]    On 3 August 2018, Mr Fredricsen was driving a motor vehicle on Fairway Drive, Kerikeri. He was stopped at a police check point and admitted to drinking prior to driving. He said he wished to speak to a lawyer, and was transported to the Kerikeri police station. Upon arrival, he changed his mind and underwent breath alcohol procedures, returning a result of 715 micrograms per litre of breath.

Should a different sentence have been imposed?

[8]    The maximum penalty for Mr Fredricsen’s offending is three months’ imprisonment or a fine not exceeding $4,500.5 The Court must also order that the offender be disqualified from holding or obtaining a driver’s licence for six months or more.6

[9]    Mr Fredricsen has one previous conviction for drink driving, dating back to 2005. Given the time gap, Mr Tomlinson submitted that a lesser fine and minimum period of disqualification was appropriate. The Crown, on the other hand, submitted that the fine imposed is unremarkable and the disqualification period, while at the higher end, is still within the available range.

[10]   Mr Fredricsen’s previous conviction involved drink driving with a level of 535 micrograms of alcohol per litre of breath.  The offending occurred in 2005 but   a conviction was not entered until 2013. Mr Fredricsen has sworn an affidavit explaining the reasons for this. In short, Mr Fredricsen is a fishing captain. Prior to appearing in Court for the 2005 offending he was severely assaulted, which resulted in his hospitalisation for several months. The men who assaulted him were sentenced to seven years’ imprisonment. Mr Fredricsen’s family notified the Court of his situation, but the relevant records could not be located by the court staff.

5      Land Transport Act 1998, s 56(1) and (3).

6      Land Transport Act 1998, s 56(3).

Mr Fredricsen (who spent considerable periods working overseas) did not hear anything further about the 2005 charge until 2012, when he became aware of an outstanding warrant for his arrest. In January 2013, he appeared in the Auckland District Court and pleaded guilty to the 2005 charge. He was fined $535 and disqualified from driving for six months.

[11]Mr Fredricsen has no other previous convictions.

Period of disqualification

[12]   If a drink driving offence is a third or subsequent offence, the disqualification period must be for more than one year.7 The significance of this requirement is that a person who is disqualified for more than one year must re-apply for a driver’s licence once the period of disqualification has come to an end.8

[13]   There is no requirement, however, that a second-time offender be disqualified for more than one year. Indeed, Mr Tomlinson submitted that it is relatively unusual for such a sentence to be imposed.

[14]   I have reviewed the various cases referred to by counsel.9 They involved periods of disqualification ranging from eight months to over a year for second excess blood/breath alcohol convictions. As Collins J observed in Blyth v Police, however, “in the general range of cases where no exceptional circumstances are present, a period of disqualification of six to 12 months is considered appropriate”.10

[15]   Martin v Police involved a reading of 667 micrograms of alcohol per litre of breath. On appeal, Mr Martin’s period of disqualification was reduced to eight months from 12 months. In Sharma v Police, referred to by the Crown, the defendant’s blood alcohol level was 86 mg of alcohol per 100 ml of blood, which was just over the legal limit. The defendant was sentenced to a $500 fine and disqualified from driving for

7      Land Transport Act 1998, s 56(4)(b).

8      Land Transport Act 1998, s 83

9      Sharma v Police [2018] NZHC  2471;  Blyth  v  Police  [2012] NZHC 875; Palmer v  Police  HC Auckland CRI-2009-404-262, 5 February 2010; Lee v Police HC Christchurch CRI-2008-409-217, 12 February 2009; Doughty v Police [2015] NZHC 430; Martin v Police  HC Auckland CRI-2008-404-44, 6 May 2008.

10     See Blyth v Police [2012] NZHC 875 at [15].

eight months. His previous conviction, from four years earlier, involved a breath alcohol reading of 943 micrograms of alcohol per litre of breath. Mr Fredricsen’s offending is more serious than that in Sharma, given that his level of breath alcohol was significantly above the legal limit.

[16]   Counsel also referred to Palmer v Police, where the defendant was sentenced to 12 months’ disqualification for a blood alcohol level of 100 milligrams of alcohol per 100 millilitres of blood11 and Lee v Police, which involved 562 micrograms of alcohol per litre of breath, and an eight-month period of disqualification (on appeal).12 Both cases support the view that the present sentence is too high.

[17]   I have also located two further cases which are of assistance.   In  Barker      v Police, the  defendant  returned  a  reading  of  260  milligrams  of  alcohol  per  100 millilitres of blood.13 Justice Lang stated that  this  equated  to  driving  with 1300 micrograms of alcohol per litre of breath (a very high reading). The defendant had a previous conviction for driving with excess blood alcohol, but it was from more than 30 years ago. While the defendant was driving in an erratic manner during her offending, the appeal was allowed and the disqualification order of 13 months was quashed and reduced to ten months. The fine of $1,300 was undisturbed on appeal. Ms Barker’s offending was more serious than that of Mr Fredricsen.

[18]   I also consider that Collins J’s decision in Smith v Police is of assistance.14  Mr Smith had been sentenced to 250 hours’ community work, and was disqualified from driving for a year and a day for driving with 919 micrograms of alcohol per litre of breath. Mr Smith successfully appealed the period of disqualification, which was reduced on appeal to a period of 11 months’. He had one previous conviction for driving with excess breath alcohol (with a breath alcohol level of 889 micrograms of alcohol per litre of breath) from around seven years prior. Justice Collins considered that the period of disqualification imposed was more typical for someone convicted of their third offence. It was above the normal range of between nine to 12 months’

11     Palmer v Police, above n 9.

12     Lee v Police, above n 9.

13     Barker v Police [2014] NZHC 3123.

14     Smith v Police [2014] NZHC 2101.

disqualification imposed on someone convicted of a first or second offence. The period of disqualification was reduced to 11 months.

[19]   Although Mr Fredricsen’s previous conviction was only entered in 2013, it should be treated as a historical conviction, for the reasons I have outlined above. There is accordingly a 13-year gap between his two offences. With reference to the various cases I have referred to, I am satisfied that the period of one year and one day disqualification imposed (with the associated consequence that Mr Fredricsen must re-apply for a driver’s licence) is excessive. I consider that a period of disqualification of ten months is appropriate in all the circumstances.

Fine

[20]   In my view, the fine imposed is within the available range, albeit probably towards the higher end of that range. The fine was less than the $2,000 imposed in Doughty, which involved much more serious levels of alcohol.15 The sum of $2000 was also imposed in Palmer which, as I noted above, involved the defendant having been found driving with excess blood alcohol, measured as being 100 milligrams of alcohol per 100 millilitres of blood. Sharma, where the offending was borderline, involved a fine of $500 but which would have been $750 if not for personal mitigating factors.16 In the circumstances, which involved a moderate to high level of breath alcohol, I do not consider the fine of $1,300 was manifestly excessive.

Result

[21]   The appeal is allowed to the extent that the sentence of one year and one day’s disqualification is quashed and a sentence of ten months’ disqualification is substituted.

Katz J

15     Doughty v Police, above n 9.

16     Sharma v Police, above n 9.