Gudsell v Police - [2021] NZHC 1684

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…

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: [2021] NZHC 1684
Decision Date: 7 July 2021

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