Kohu v Police

Case [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…

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Kohu v Police [2013] NZHC 2758
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[2013] NZHC 2758
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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

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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