Gavigan v Police - [2016] NZHC 1416

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CRI-2016-476-3 [2016] NZHC 1416

BETWEEN
MANU APANUI GAVIGAN

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 20 June 2016

Appearances:

R Glover for Appellant
M Beattie for Respondent

Judgment:

27 June 2016

JUDGMENT OF MANDER J

Introduction

[1] Manu Gavigan has appealed his sentence of one year and two months imprisonment imposed in respect of a charge of refusing to permit a specimen of blood to be taken for the purposes of alcohol testing procedures.1 On a charge of failing to provide his full name and address upon request by police he was convicted and discharged.2

Background

Factual background

[2] On 19 July 2014 Mr Gavigan was driving a motor vehicle on Cranford Street in Christchurch when he was stopped by police for the purposes of breath testing.
Upon being stopped he jumped into the back seat and claimed that he was not the

1 Land Transport Act 1998, s 60(1)(a) and (3).
2 Land Transport Act 1998, s 52(1)(c).

GAVIGAN v NEW ZEALAND POLICE [2016] NZHC 1416 [27 June 2016]

driver. The police required the appellant to provide his name, address and other such details but he refused to do so. He underwent a breath alcohol procedure but refused an officers request for a blood sample.

District Court sentencing

[3] In imposing sentence, Judge Couch took a starting point of 10 months’ imprisonment for the refusal to cooperate with the testing procedure.3 Mr Gavigan, at the time of the imposition of the prison sentence, had a very substantial amount of community work outstanding. The Judge approached that issue in the following terms:

[9] In terms of s 78 Sentencing Act 2002, if I am going to impose a sentence of imprisonment short of 12 months, then I must make an order whether that community work is to be suspended simpliciter, that is cancelled, or whether it is to be suspended simply for the period of your detention. I have raised this issue with your counsel Mr Glover. He has submitted that the most appropriate course would be for it to be cancelled so that you might emerge from custody without a sentence hanging over you. I am prepared to agree to that course but in doing so I must take that into account in the length of sentence which I impose.

[4] The Judge then proceeded to impose a sentence of one year and two months on the charge of failing to provide a specimen of blood. It was remarked that, because the sentence was more than 12 months, the sentence of community work would be automatically cancelled by operation of the Sentencing Act 2002 (the Act). It is apparent therefore, in the absence of any aggravating factors justifying an uplift in the starting point, that the four month increase was effectively in substitution of the outstanding community work.

The appeal

Grounds of appeal

[5] Mr Gavigan’s appeal rested on a submission that it is unclear on what basis the additional…

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.

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Details

Case: [2016] NZHC 1416
Decision Date: 27 June 2016

CaseChat Overview and Summary

In the High Court of New Zealand, the appellant, Manu Apanui Gavigan, appealed his sentence of one year and two months imprisonment for refusing to permit a specimen of blood to be taken for alcohol testing purposes, and for failing to provide his full name and address upon request by police. The appeal was heard by Manderson J, with counsel R Glover appearing for the appellant and M Beattie for the respondent. The court delivered its judgment on 27 June 2016.

The legal issues before the court were whether the District Court had correctly applied the relevant provisions of the Sentencing Act 2002 when imposing the appellant's sentence, and whether the court had the jurisdiction to substitute a sentence of imprisonment for a sentence of community work. The court found that the District Court had erred in its interpretation and application of the relevant provisions of the Act. The court also found that the District Court had the jurisdiction to substitute a sentence of imprisonment for a sentence of community work.

The court's reasoning was that the District Court had increased the appellant's sentence from 10 months to 14 months imprisonment, effectively substituting the appellant's outstanding community work with an additional period of imprisonment. The court found that the District Court had erred in its interpretation and application of the relevant provisions of the Act, as there was no jurisdiction to increase the sentence for the failure to provide a blood specimen to reflect the suspension and ultimate removal of the community work hours. The court also found that the District Court had the jurisdiction to substitute a sentence of imprisonment for a sentence of community work, as the fact that the appellant was now subject to a sentence of imprisonment would be a sufficient change of circumstance to warrant variation or cancellation of the original sentences of community work.

The outcome of the appeal was that the court allowed the appeal, quashed the 14 month sentence on the charge of refusing to permit a specimen of blood for the purpose of alcohol testing procedures, and substituted it with a sentence of 10 months’ imprisonment. The court also cancelled the appellant's outstanding sentences of community work and substituted them for a sentence of four months’ imprisonment, to be served cumulatively. The conviction and discharge on the charge of failing to provide a name and address when requested by police was undisturbed.

Orders