H v Police HC Wellington CRI-2006-485-78

[2006] NZHC 1086

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2006-485-78

BETWEEN  H

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         19 September 2006

Appearances: M Dixon for Appellant

T Gilbert for Respondent

Judgment:      21 September 2006

JUDGMENT OF MALLON J

This judgment was delivered by Justice Mallon on 21 September 2006 at  2.30 pm pursuant to r540(4) of the High Court Rules 1985.

Solicitors:

M Dixon, Barrister, 60A Courtenay Place, Wellington (Fax: [phone])

T J Gilbert, Luke, Cunningham & Clere, PO Box 10-357, Wellington (Fax: [phone])

H V NEW ZEALAND POLICE HC WN CRI-2006-485-78 21 SEPTEMBER 2006 21 September 2006

Introduction

[1]      Mr H   appeals against his conviction and sentence on charges of driving with excess breath alcohol and careless driving.

Conviction

[2]      On the appeal against conviction Mr H   addressed the Court in person.  He said that he was not driving a car.  He said that others might call it a car but he called it a waka.

[3]      For the Police it was said that Mr H   had been driving a Toyota Corona with the registration number TF4267.  He said that this fell within the definition of motor vehicle.

[4]      Whether the vehicle meets the definition of a motor vehicle is determined objectively and  not  by Mr  H  ’s  personal  views.    Determined  objectively the vehicle Mr H   was driving meets the definition of motor vehicle (and Mr H   agrees that others might view it this way).

Sentence

[5]      On the charge of driving with excess breath alcohol Mr H   was sentenced to 60 hours of community work and was disqualified from holding or obtaining a driver’s licence for six months.   On the charge of careless driving Mr H   was disqualified from holding or obtaining a driver’s licence for three months.

[6]      The District Court Judge noted that Mr H   had $6,000 in outstanding fines, that he was of limited means and received a benefit.   The Judge said that it was abundantly plain that Mr H   could not pay fines.  The Judge acknowledged that the appellant had previously been assessed as unsuitable for community work. Nonetheless,  the  Judge  considered  that  community  work  was  the  appropriate

sentence and Mr H   should be given the opportunity to complete that sentence. The Judge said that if Mr H   did not do his community work he would go to prison.

[7]      Ms Dixon, counsel for Mr H   on his appeal against sentence, advised the Court that Mr H   reported on three occasions for community work.  She knew that because she had accompanied him.  She said that Mr H   has not worn shoes for about seven years.  She said that it is unlikely that he could now wear them and walk without severe blistering.   As the community work was of a nature that requires shoes to be worn Mr H   was assessed as unsuitable.  He was advised to apply to the District Court for review of his sentence which he then did.  However before the review took place Mr H   filed this appeal against conviction and sentence.

[8]      Rather than pursue this appeal Ms Dixon accepted that the appropriate course was for the matter to go back to the District Court to enable the review to take place. Mr Gilbert for the Police agreed that this was the appropriate course.  I agree.  The sentence was not an inappropriate one.  It contemplated that the sentence would need to be reconsidered if Mr H   did not complete his sentence.

Result

[9]      The appeal against conviction and sentence is dismissed.

Mallon J