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.

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REASONS OF THE COURT

(Given by Mallon J)

1. 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.

2. 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.

3. 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).

4. A successful appeal would mean imposing a second sentence on Mr Hart on top of the prison sentence he has already served.  There is no good reason to do so.  Mr Hart is already subject to a requirement to attend any treatment or programme directed by his probation officer.  If he or his advisors wish that to be a residential programme, that should be discussed with his probation officer.[7]  In these circumstances we are not satisfied that a miscarriage of justice may have occurred.  Neither are we satisfied the appeal involves a matter of general or public importance which could justify the grant of leave.  We dismiss the application for leave.

   [7]Enquiries can then be made as to whether a residential programme is suitable and available for him.  Counsel for the applicant Mr Dean’s memorandum dated 14 August 2014 does not address this point.

5. In support of the application, leave was also sought to adduce evidence in an affidavit from Roger Brooking.[8]  He is an alcohol and drug clinician and counsellor.  Mr Brooking has views about the effectiveness of sentences imposed on recidivist drink drivers.  In his affidavit he purports to comment on what he contends were errors in the Judge’s sentencing decision and on what the Judge should have done on the basis of those views. 

   [8]A report from Mr Brooking on his assessment of Mr Hart was filed for the High Court appeal.

6. The lawfulness of a sentence is outside his expertise.  The affidavit should not have been tendered.  It is not fresh, nor is it cogent given the extent to which it strays outside Mr Brooking’s expertise.  We therefore also dismiss the application for leave to adduce the affidavit.

Result

1. The application for leave to appeal is dismissed.  The application for leave to adduce evidence in support of the application for leave to appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent