Fyfe v Police - [2022] NZHC 3065

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2022-409-148

[2022] NZHC 3065

BETWEEN
ALEXANDER PETER FYFE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 22 November 2022

Appearances:

P C McDonnell for Applicant L Fiennes for Respondent

Judgment:

23 November 2022

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 23 November 2022 at 10.30 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar
Date……………

FYFE v NEW ZEALAND POLICE [2022] NZHC 3065 [23 November 2022]

Introduction

[1] Alexander Fyfe pleaded guilty to a charge of driving with excess breath alcohol after testing showed he had 785 micrograms of alcohol per litre of breath.1 This was his third conviction for driving with excess breath or blood alcohol. His previous convictions were for driving with excess breath or blood alcohol on 16 February 2007 and on 2 May 2008.

[2] On 8 September 2022, Judge Couch sentenced Mr Fyfe to 100 hours’ community work and disqualified him from holding or obtaining a driver licence for one year and one month from 5 August 2022.2 Mr Fyfe appeals his sentence.

District Court decision

[3] The District Court decision was brief. The Judge declined Mr Fyfe’s application to substitute a community-based for the mandatory disqualification.3 Counsel relied on Mr Fyfe’s work as a joiner and as a volunteer Tai Chi instructor to support his application to avoid disqualification from driving. The Judge found that these were specific needs that could be addressed by a limited licence. However, the Judge did backdate the disqualification by a month so Mr Fyfe could make an application for a limited licence immediately.

[4] The Judge sentenced Mr Fyfe to 100 hours’ community work and a disqualification from driving for one year and one month starting on 5 August 2022.

Principles on appeal

[5] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should

1      Land Transport Act 1998, s 56(1) and (4): maximum penalty two years’ imprisonment or a $6,000 fine, and a mandatory disqualification from holding or obtaining a driver licence for more than one year.
2      Police v Fyfe [2022] NZDC 17734.
3      Under s 94 of the Land Transport Act.

be imposed.4 As the Court of Appeal identified in Tutakangahau v R, quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.5 It is appropriate for this Court to intervene and substitute its own views only if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.6

[6] An appeal against a s 94 application under the…

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 Fyfe v Police

Details

AGLC: Fyfe v Police [2022] NZHC 3065
Case: [2022] NZHC 3065
Decision Date: 23 November 2022

CaseChat Overview and Summary

In the High Court of New Zealand, Alexander Peter Fyfe appealed a decision made by the District Court, which found him guilty of driving with excess breath alcohol and sentenced him to 100 hours of community work and disqualified him from holding or obtaining a driver's licence for one year and one month. The appeal raised two legal issues: whether the mandatory disqualification from driving should have been substituted with a community-based sentence under section 94 of the Land Transport Act 1998 and whether the sentence of 100 hours of community work was manifestly excessive in combination with the lengthy disqualification period.

The court found that the District Court did not err in declining Mr Fyfe's application to substitute a community-based sentence for the mandatory disqualification. The court considered the relevant factors under section 94, including the circumstances of the case and the offender, the effectiveness of a previous disqualification order, the likely effect on the offender of a further order of disqualification, and the interests of the public. The court concluded that there were no special circumstances that indicated the mandatory disqualification was an inappropriate sentence for Mr Fyfe, as he was eligible for a limited licence and the police did not oppose his application. The court also found that the sentence of 100 hours of community work was not manifestly excessive, as it was within the range of sentencing options available for someone being sentenced for driving with excess breath or blood alcohol on a third or subsequent occasion.

In conclusion, the appeal was dismissed, and the original sentence imposed by the District Court was upheld.

Orders