Hart v The Queen - [2014] NZCA 420

IN THE COURT OF APPEAL OF NEW ZEALAND

CA187/2014
[2014] NZCA 420

BETWEEN	BRIAN MITCHELL HART Applicant
AND	THE QUEEN Respondent

Hearing:	12 August 2014
Court:	Stevens, Simon France and Mallon JJ
Counsel:	J A Dean for Appellant K J Cooper for Respondent
Judgment:	29 August 2014 at 3.15 pm

JUDGMENT OF THE COURT

AThe application for leave to appeal is dismissed.
BThe application for leave to adduce evidence in support of the application for leave to appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Mallon J)

Mr Hart is a recidivist drink driver.[1] For his latest offending he was sentenced to 12 months’ imprisonment.[2] He was also disqualified from driving indefinitely, forfeiture of his car was ordered, a zero-alcohol licence was imposed and his sentence was subject to special conditions which included a requirement that he attend any counselling treatments or programmes directed by his probation officer.[3] The High Court dismissed an appeal against his sentence.[4]
[1]No copy of Mr Hart’s conviction history was put before the Court. However, the documents provided indicate Mr Hart has 18 convictions for driving with excess breath alcohol spanning 1982–2009, three previous convictions for refusing to allow a blood sample to be taken, and other multiple convictions for serious driving offences and 11 convictions for driving while disqualified.
[2]Land Transport Act 1998, ss 56(1)(a) and (4)(a) (driving with excess breath alcohol (third or subsequent)), and ss 60(1)(a) and (3)(a) (refusing a police officer’s request for a blood specimen (third or subsequent)).
[3]New Zealand Police v Hart DC Wellington CRI-2013-085-8343, 14 February 2014 at [20]. There was also an order for disqualification from driving for one year and one day.
[4]Hart v New Zealand Police [2014] NZHC 429.
Before us is an application for leave for a second appeal against his sentence.[5] If leave were granted Mr Hart would contend that his sentence of imprisonment should be substituted for a sentence of intensive supervision with a special condition that he attend a residential programme aimed at addressing his alcohol abuse. The appeal is brought notwithstanding that Mr Hart was released from prison on 14 August 2014 and is now subject to the special condition referred to above.
[5]Criminal Procedure Act 2011, s 253.
The appeal is said to involve matters of general or public importance and to address an alleged miscarriage of justice.[6] It is proposed that the Court be asked to consider the way in which judges sentence offenders with severe alcohol problems. It is claimed the lower courts are labouring under misconceptions about sentences for recidivist drink drivers and that these misconceptions have led to errors in the sentence imposed on Mr Hart. In short, prison will not stop Mr Hart, and others like him, from continuing to drink and drive and a rehabilitative sentence should have been imposed.
[6]Section 253(3)(a) and (b).
A successful appeal would mean imposing a second sentence on Mr Hart on top of the prison sentence he has already served. There is…

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.

Keep reading for free

Create a free CaseChat account to read Hart v The Queen and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] NZCA 420
Decision Date: 29 August 2014 at 3.15 pm

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an application from Brian Mitchell Hart against the Crown, concerning his appeal against the sentence imposed by the High Court. Hart, a repeat offender in relation to drink driving, had been sentenced to 12 months' imprisonment, an indefinite driving disqualification, forfeiture of his car, a zero-alcohol licence, and special conditions including mandatory attendance at any counselling treatments directed by his probation officer. The High Court had dismissed Hart's appeal against his sentence. Hart sought leave to appeal to the Court of Appeal, arguing that his sentence should be substituted for a sentence of intensive supervision with a special condition that he attend a residential programme aimed at addressing his alcohol abuse. Hart's appeal was based on the argument that prison would not stop him from continuing to drink and drive and that a rehabilitative sentence should have been imposed. The Court of Appeal found that there was no good reason to impose a second sentence on Hart on top of the prison sentence he had already served. The court was not satisfied that a miscarriage of justice may have occurred or that the appeal involved a matter of general or public importance which could justify the grant of leave. The court dismissed the application for leave to appeal. In addition, Hart sought leave to adduce evidence in an affidavit from Roger Brooking, an alcohol and drug clinician and counsellor. The court dismissed the application for leave to adduce the affidavit as it strayed outside Mr Brooking's expertise.

The Court of Appeal considered the legal issues involved in the application for leave to appeal and the application for leave to adduce evidence. The court held that a successful appeal would mean imposing a second sentence on Hart on top of the prison sentence he had already served. The court found that there was no good reason to do so. The court was not satisfied that a miscarriage of justice may have occurred or that the appeal involved a matter of general or public importance which could justify the grant of leave. The court dismissed the application for leave to appeal. The court also dismissed the application for leave to adduce evidence in an affidavit from Roger Brooking as it strayed outside Mr Brooking's expertise.

The Court of Appeal dismissed the application for leave to appeal and the application for leave to adduce evidence in an affidavit from Roger Brooking. The court held that there was no good reason to impose a second sentence on Hart on top of the prison sentence he had already served. The court was not satisfied that a miscarriage of justice may have occurred or that the appeal involved a matter of general or public importance which could justify the grant of leave. The court dismissed the application for leave to appeal. The court also dismissed the application for leave to adduce evidence in an affidavit from Roger Brooking as it strayed outside Mr Brooking's expertise. The Court of Appeal's decision was final and no further appeal was possible.

Orders