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…
Continue reading Fredricsen v Police
Sign in free to access the full text
- AGLC
- Fredricsen v Police [2018] NZHC 2721
- Case
- [2018] NZHC 2721
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.