Hart v Police - [2014] NZHC 429

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…

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: [2014] NZHC 429
Decision Date: 11 March 2014

CaseChat Overview and Summary

Brian Mitchell Hart appealed against the sentence imposed by Judge Bergseng in the Wellington District Court. Mr Hart was sentenced to 12 months’ imprisonment for refusing a police officer’s request for a blood specimen on a third or subsequent occasion, and for driving with excess breath alcohol on a third or subsequent occasion. The sentences were imposed concurrently. The High Court had to determine whether there was an error in the sentence imposed by Judge Bergseng and if so, whether a different sentence should be imposed. The appeal was based on the contention that the sentences imposed were excessive, that Judge Bergseng failed to give proper regard to the attempts Mr Hart had made to "turn his life around", and that a community-based sentence should have been imposed. The Court found that the starting point of 14 months’ imprisonment was entirely appropriate. Judge Bergseng was entitled to conclude that Mr Hart had not truly displayed a willingness to address his underlying problems in a meaningful way. The Court concluded that the end sentence of 12 months’ imprisonment was appropriate and dismissed the appeal. All sentences and orders made by Judge Bergseng remain in force.

Orders