Gudsell v Police

Link copied
Case Copied 28 min read

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2021-404-000221

[2021] NZHC 1684

BETWEEN

MATTHEW THOMAS GUDSELL

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 29 June 2021

Appearances:

T D Clee for the Appellant

H T Reid for the Respondent

Judgment:

7 July 2021


JUDGMENT OF VAN BOHEMEN J


This judgment was delivered by me on 07 July 2021 at 12.30pm

…………………………

Registrar/Deputy Registrar

Solicitors/Counsel:

Tudor Clee, Barrister, Auckland Crown Solicitor, Auckland

GUDSELL v NEW ZEALAND POLICE [2021] NZHC 1684 [7 July 2021]

Introduction

[1]    The appellant, Matthew Gudsell, seeks to bring a second appeal against a sentence of 80 hours’ community work and seven months’ disqualification from driving imposed by Community Magistrate L M Nathan1 on 23 February 2021 for the charge of driving with excess breath alcohol.2 Mr Gudsell’s appeal against the Community Magistrate’s decision was dismissed by Judge A-M J Bouchier in the District Court at North Shore.3

[2]    Mr Gudsell says the sentence imposed by the Community Magistrate and upheld by Judge Bouchier was manifestly excessive and that there were errors of law and procedure in the decisions of the Community Magistrate and Judge Bouchier.

[3]    Because this is a second appeal, Mr Gudsell requires leave in accordance with the Criminal Procedure Act 2011 (CPA).

[4]The Police oppose leave being granted and oppose the appeal.

Background

[5]    On 27 October 2020, Mr Gudsell was charged with driving with excess breath alcohol after a breath alcohol test at a routine police checkpoint recorded Mr Gudsell with 449 micrograms of alcohol per litre of breath. Mr Gudsell entered a guilty plea on 15 November 2020.

[6]    On 23 February 2021, Mr Gudsell was convicted and sentenced by the Community Magistrate to 80 hours of community work and ordered to pay $130 in court costs. He was also disqualified from driving for a period of seven months after his application under s 94 of the Land Transport Act 1998 (LTA) to receive a community-based sentence instead of disqualification was declined.


1      Police v Gudsell DC North Shore CRI-2020-044-003445, 23 February 2021.

2      Land Transport Act 1998, ss 56(1) and (3). Maximum penalty three months’ imprisonment or a fine of $4,500, and a minimum mandatory disqualification of six months.

3      Gudsell v Police [2021] NZDC 7941.

[7]    Mr Gudsell appealed the Community Magistrate’s decision to the District Court. In her decision dated 27 April 2021, Judge Bouchier refused the appeal and upheld the Community Magistrate’s decision.4

[8]Mr Gudsell seeks to appeal Judge Bouchier’s decision.

The Community Magistrate’s decision

[9]    Community Magistrate Nathan sentenced Mr Gudsell on 23 February 2021 in an oral decision delivered after hearing submissions  from  Mr Clee,  on  behalf of Mr Gudsell, and from the Police.

[10]   The Community Magistrate recorded that Mr Gudsell had pleaded guilty to the current charge on 15 November 2020. She also recorded that Mr Gudsell had received a sentence of community work and a minimum period of disqualification in December 2008…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Gudsell v Police and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2021] NZHC 1684
Decision Date

CaseChat Overview and Summary

Matthew Thomas Gudsell sought leave to appeal against a sentence of 80 hours’ community work and seven months’ disqualification from driving imposed by Community Magistrate L M Nathan for the charge of driving with excess breath alcohol. The sentence was upheld by Judge A-M J Bouchier in the District Court at North Shore. The Police opposed leave being granted and opposed the appeal. The central legal issue in the case was whether the sentence imposed was manifestly excessive and whether there were errors of law and procedure in the decisions of the Community Magistrate and Judge Bouchier. The Court found that the Community Magistrate and Judge Bouchier had not considered the purposes and principles of sentencing, the hierarchy of sentences, and the requirement of s 13 of the Sentencing Act to regard a fine as the appropriate sentence unless satisfied that the purpose of the sentence cannot be achieved by a fine. The Court held that the sentence of 80 hours’ community work was wrong in principle and manifestly excessive, but the disqualification of seven months was within the appropriate range and was not manifestly excessive. The Court granted leave to Mr Gudsell to appeal the decisions of the Community Magistrate and the District Court Judge and allowed Mr Gudsell’s appeal in part, quashing the sentence of 80 hours’ community work and imposing instead a fine of $1,100. The sentence of seven months’ disqualification from driving stood, and Mr Gudsell had five months and three days of his disqualification to serve.

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.