Hart v Police - [2019] NZHC 1190

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI 2019-441-19

[2019] NZHC 1190

BETWEEN
BRIAN MITCHELL HART

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 28 May 2019

Counsel:

S J Fraser for Appellant

C R Stuart for Respondent

Judgment:

28 May 2019

JUDGMENT OF ELLIS J

[1] On 7 March 2019 Mr Hart was sentenced to 12 months’ imprisonment on one charge of doing an indecent act in public1 and one charge of refusing to give a blood specimen2 by Judge Mackintosh in the Hastings District Court.3 He was also disqualified from driving for 12 months.

[2] Mr Hart sought to appeal his sentence on the grounds it was manifestly excessive because the Judge erred by:

(a)failing to consider an alcohol interlock sentence; and

1      Crimes Act 1961, s 125(1) [maximum penalty of two years’ imprisonment].
2      Land Transport Act 1998, ss 60(1)(a) and 60(3) [maximum penalty of two years’ imprisonment or a fine not exceeding $6,000].
3      Police v Hart [2019] NZDC 4114.

HART v NZ POLICE [2019] NZHC 1190 [28 May 2019]

(b)relying on an erroneous assertion in the pre-sentence report that Mr Hart had previously received, and had failed to engage with, rehabilitative sentences.

[3] At the hearing of the appeal, the former ground was abandoned by Mr Fraser. In my view he was right to do so. Mr Hart does not qualify for such a sentence because he last drink driving conviction was (a little) over five years ago and because he cannot be shown to have the requisite blood alcohol reading (because he refused to give a specimen). Moreover, the making of an alcohol interlock order does not preclude a sentence of imprisonment.4

[4] I also record at the outset that the appeal was filed late. Mr Fraser advises that this was because Mr Hart could not find a lawyer willing to represent him on the appeal. The Crown did not indicate opposition to an extension of time and I grant it accordingly.

Background

The driving charge

[5] At 10:45 pm on 11 October 2018 Mr Hart was driving his car in Napier. He parked on a road near an intersection. He was standing by his car when the police arrived. He admitted to having driven the car. The police report records that Mr Hart smelled of alcohol and the officers could see a cask of wine in his car. The police asked him to “undergo alcohol/blood procedures” but he refused. He agreed to accompany the police to the station to give a breath or blood test. However, at the station he refused all officer requests for a blood or breath sample.

[6] When asked to explain his offending Mr Hart said he had not been driving when the police attended. But at the first case review hearing he pleaded guilty to the charge.

4 Land Transport Act, s 65AH(1).

The indecency charge

[7] At around 11 am on 9 February 2019, Mr Hart and his…

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 Hart v Police

Details

AGLC: Hart v Police [2019] NZHC 1190
Case: [2019] NZHC 1190
Decision Date: 28 May 2019

CaseChat Overview and Summary

The appeal was brought by Brian Mitchell Hart against the New Zealand Police. Mr Hart sought to appeal his sentence, which was imposed on him by Judge Mackintosh in the Hastings District Court. The sentence was for 12 months’ imprisonment for the charges of doing an indecent act in public and refusing to give a blood specimen. The appeal was based on the grounds that the sentence was manifestly excessive because the Judge failed to consider an alcohol interlock sentence and relied on an erroneous assertion in the pre-sentence report that Mr Hart had previously received, and had failed to engage with, rehabilitative sentences. The former ground was abandoned during the appeal hearing. The court had to decide whether the sentence was manifestly excessive and whether there was an intrinsic error in the sentence imposed. The court held that the appeal was filed late but granted an extension of time as the Crown did not oppose it. The court found that the appeal was not obviously wrong or misleading. Even Mr Hart’s latest dealings with the authorities suggest compliance problems. The court accepted that such reports are not solely based on an offender’s conviction history but include a review of Corrections’ files. The court held that the end sentence was generous given the error in the guilty plea discount and the additional and separate indecency charge. The appeal was dismissed.
The court dismissed the appeal and upheld the sentence imposed on Mr Hart.

Orders