IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2014-485-000007 [2014] NZHC 429
BETWEEN BRIAN MITCHELL HART Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 11 March 2014
Counsel: S J Fraser for Appellant
M J Ferrier for Respondent
Judgment: 11 March 2014
JUDGMENT OF COLLINS J
Introduction
[1] The question I have to consider is whether, when imposing a total sentence of
12 months’ imprisonment on Mr Hart, Judge Bergseng made an error, and if so,
whether a different sentence should be imposed.1
[2] This question arises because Mr Hart appeals concurrent sentences imposed on him by Judge Bergseng in the Wellington District Court on 14 February 2014. The sentences were imposed after Mr Hart pleaded guilty to two charges. Mr Hart was sentenced to:
(1) Twelve months’ imprisonment for refusing a police officer’s request
for a blood specimen on a third or subsequent occasion.2
1 Criminal Procedure Act 2011, s 250(2)(a) and (b).
2 Land Transport Act 1998, s 60(1)(a) and (3)(a). Maximum penalty is two years’ imprisonment.
HART v NEW ZEALAND POLICE [2014] NZHC 429 [11 March 2014]
(2) Twelve months’ imprisonment for driving with excess breath alcohol
on a third or subsequent occasion.3
These sentences were imposed concurrently.
Background
Refusing a blood specimen
[3] At about 4.00 pm on 20 July 2013 Mr Hart drove his Toyota van into the grounds of the Salvation Army Bridge Programme. He was told to leave. Mr Hart backed his vehicle out of the premises and in doing so almost hit a building. He then drove down Owen Street and almost hit a parked vehicle. He then parked his van in Manchester Street. The police located Mr Hart a short time later and requested that he undergo a breath screening test. Mr Hart refused this request and a subsequent request to allow a blood specimen to be taken.
Driving with excess blood alcohol
[4] On 25 September 2013 police were alerted by members of the public about the way Mr Hart was driving his Toyota van in the Waikato region. Two hours later he was stopped by the police in Raglan. A breath alcohol test revealed a reading of
561 milligrams of alcohol per litre of breath.
[5] Mr Hart has 18 convictions for driving with excess breath alcohol and three previous convictions for refusing to allow a blood sample to be taken. In addition, Mr Hart has many other criminal convictions, including multiple convictions for serious driving offences. He has been convicted 11 times for driving while disqualified.
Judge Bergseng’s decision
[6] Judge Bergseng said he may have been inclined to impose a sentence that
was designed towards Mr Hart’s rehabilitative needs if Mr Hart had shown a
willingness to address his obvious problems with alcohol.
3 Section 56(1) and (4)(a). Maximum penalty is two years’ imprisonment.
[7] Judge Bergseng adopted a starting point of 14 months’ imprisonment for both offences but increased the sentence for the offending on 25 September 2013 by a further two months to reflect the fact…
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- [2014] NZHC 429
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