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…

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 Fredricsen v Police

Details

AGLC: Fredricsen v Police [2018] NZHC 2721
Case: [2018] NZHC 2721
Decision Date: 19 October 2018

CaseChat Overview and Summary

Moana Tai Fredricsen appeals against his conviction for driving with excess breath alcohol. Fredricsen's breath alcohol level was measured at 715 micrograms of alcohol per litre of breath. He was sentenced in the Kaikohe District Court to a fine of $1,300 and disqualified from driving for a year and a day. Fredricsen argues that the sentence imposed was excessive and that a lesser fine and shorter period of disqualification is appropriate. The appeal is heard by Katz J in the High Court of New Zealand at Whangarei.

The primary legal issue in the appeal is whether the sentence imposed was manifestly excessive. Katz J notes that the maximum penalty for Fredricsen's offence is three months' imprisonment or a fine not exceeding $4,500. The court must also order that the offender be disqualified from holding or obtaining a driver's licence for six months or more. Katz J reviews the relevant sentencing principles and authorities and finds that the period of disqualification imposed is excessive. Katz J also finds that the fine imposed is within the available range.

Katz J finds that the period of one year and one day disqualification imposed is excessive. Katz J considers that a period of disqualification of ten months is appropriate in all the circumstances. Katz J also finds that the fine imposed is within the available range, albeit probably towards the higher end of that range. Katz J allows the appeal 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 orders that the sentence of one year and one day’s disqualification is quashed and a sentence of ten months’ disqualification is substituted. The fine of $1,300 remains unchanged.

Orders