Kohu v Police - [2013] NZHC 2758

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2013-470-18 [2013] NZHC 2758

BETWEEN TAHAKURA KAMAKORE RAWHERA AWHIOWHIO KOHU
Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 16 October 2013

Counsel: NM Dutch for Appellant
JJ Rhodes for Respondent

Judgment: 22 October 2013

JUDGMENT OF BREWER J

This judgment was delivered by me on 22 October 2013 at 1:30 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel: NM Dutch (Tauranga) for Appellant
Ronayne Hollister-Jones Lellman (Tauranga) for Respondent

KOHU v POLICE [2013] NZHC 2758 [22 October 2013]

Introduction

[1] On 10 December 2012 in the District Court at Tauranga, Judge A-M J Bouchier convicted Mr Kohu on two charges arising out of an incident on 1 January
2012. One of the charges was driving with excess breath alcohol (third or subsequent) and the second was driving while disqualified (second or subsequent).

[2] On 24 June 2013, Judge R P Wolff sentenced the appellant to 15 months’ imprisonment on these charges. The District Court Judge also sentenced the appellant to 12 months’ imprisonment on a further charge of driving while disqualified. All of these sentences were to be served concurrently with each other.

[3] Judge Wolff also had to sentence the appellant on a charge of breach of bail (the appellant was released on bail following his conviction by Judge Bouchier but failed to appear for sentencing) and one charge of shoplifting. Judge Wolff imposed a sentence of one month’s imprisonment on each of those charges, with the sentences to be served concurrently with each other but cumulatively upon the other charges. That resulted in an effective sentence of 16 months’ imprisonment.

[4] The appellant now appeals the convictions entered by Judge Bouchier and, if his appeal fails, the sentences imposed by Judge Wolff.

The appeals against conviction

[5] The appellant pleaded not guilty to the charges of driving with excess breath alcohol and driving while disqualified. The trial took place on 10 December 2012. The appeals against conviction proceed on two grounds: (a) the District Court Judge erred in finding there was sufficient evidence that the appellant was driving; (b) the evidence of the evidential breath test was inadmissible.

[6] The evidence called before the District Court Judge was that on 1 January

2012, at approximately 1:00 am, police officers manning a vehicle checkpoint in Tauranga saw an approaching car stop, and then turn into a driveway. Constables Balfour and McKay, who were closest, at once went to investigate. They found the car stopped down the end of the driveway. There was no-one in the driver’s seat.

There was a man sitting in the front passenger’s seat. He was wearing a Mongrel Mob patch and soon became verbally aggressive. There were four people in the rear seat – two females (closest to the left rear door) and two males, one of whom was the appellant.

[7] Constable Balfour asked who was driving and all occupants of the car said they did not know. Constable Balfour called for back-up and…

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 Kohu v Police

Details

AGLC: Kohu v Police [2013] NZHC 2758
Case: [2013] NZHC 2758
Decision Date: 22 October 2013

CaseChat Overview and Summary

The appellant, Mr Kohu, appeals against his convictions for driving with excess breath alcohol and driving while disqualified, as well as his sentence of 16 months imprisonment. The court considers two grounds of appeal against conviction: (a) the District Court erred in finding there was sufficient evidence that the appellant was the driver, and (b) the evidence of the evidential breath test was inadmissible. The court rejects both grounds of appeal, finding that the District Court's decision was based on credible evidence and there was no procedural impropriety on the part of the police constable. The court also considers the appeal against sentence and finds that the sentence was manifestly excessive. The court substitutes a sentence of 13 months imprisonment, made up as follows: 12 months imprisonment on the charges of driving with excess breath alcohol and driving while disqualified (to be served concurrently), 12 months imprisonment on the charge of driving while disqualified (to be served concurrently with the foregoing offences), and one month imprisonment on each charge of breach of bail and shoplifting (to be served concurrently with each other but cumulatively on the foregoing charges).

The court's reasoning is based on a careful consideration of the evidence and the relevant legal principles. The court finds that the District Court Judge did not err in her assessment of the credibility of the appellant's account, and that the appellant's admissions that he was the driver were credible and supported by other evidence. The court also finds that there was no procedural impropriety on the part of the police constable in administering the evidential breath test, and that the result of the test was admissible as evidence against the appellant. The court's decision on the appeal against sentence is based on a careful consideration of the relevant factors and case law, and the court finds that the sentence was manifestly excessive and should be reduced to 13 months imprisonment.

Orders