[1] This is an appeal against a sentence of 21 months imprisonment for an offence of driving with excess breath alcohol and disqualified driving.1 This was the appellant’s eighth drink driving offence. The end sentence was 12 months imprisonment. A cumulative sentence of 9 months imprisonment was imposed for the appellant’s seventh disqualified driving offence. These offences occurred on 11
September 2012. The maximum penalty for each offence is 2 years imprisonment.

[2] The appellant is aged 37. The appellant has been convicted on seven earlier occasions for drink driving, the offences being between January 1998 and December
2009. Sentences include two of imprisonment for 1 year, which appear to have been cumulative on other sentences. There are six previous disqualified driving offences between 1996 and 2006. Three resulted in prison sentences, one of which was 12 months imprisonment. There have been four convictions for dangerous driving between 1996 and 2009, two of which resulted in prison sentences. The appellant has a reasonably substantial number of convictions for other offences, or breaches of sentences, or breaches of release conditions.

The District Court sentence

[3] The Judge noted that the appellant had eight previous drink driving convictions, not seven, and that he had six or seven previous convictions for disqualified driving. He noted the other convictions and failures to comply with sentences, other Court orders or conditions. He noted and rejected some submissions in mitigation and, in particular, a submission which may have come from a letter from Mr Koopu to the essential effect that prison was not the answer to his drinking problems. The Judge then said:

[7] This is his ninth conviction now and in my view the preventative element of sentencing must be given greater weight to protect the public. In this case the alternatives of supervision, community work, intensive supervision and home detention, in my view, do not bring home to this man the seriousness of his offending in terms of the purposes and principles of the Sentencing Act 2002. In my view the only sentence that can bring home to him a deterrent aspect is, again, to sentence him to a term of imprisonment but he will note that the term is increasing in length to protect the public.

1 Police v Koopu DC Waitakere CRI-2012-090-008386, 27 March 2013.

[8] I am conscious of the provision to s 16 of the Act. I have given full weight to that section. But I have given, also, full weight to the need to protect the public and Mr Koopu’s very abysmal…

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 Koopu v Police

Details

AGLC: Koopu v Police [2013] NZHC 1356
Case: [2013] NZHC 1356
Decision Date: 10 June 2013

CaseChat Overview and Summary

The High Court of New Zealand heard an appeal against a sentence of 21 months imprisonment for driving with excess breath alcohol and disqualified driving, both of which were the appellant's eighth and seventh convictions respectively. The appellant, aged 37, had a history of drink driving offences and other convictions, including dangerous driving. The District Court judge noted the appellant's extensive criminal record and his failure to comply with court orders, leading to the imposition of cumulative sentences to protect the public. The appellant argued that the sentence was manifestly excessive, particularly when compared to other cases, but the High Court found no error in the District Court's sentencing approach.

The court considered the appellant's history of non-compliance with court orders and the need to protect the public, and found that the District Court had appropriately balanced the various sentencing considerations. The High Court also noted that the appellant's attendance at counselling sessions was not a significant mitigating factor given his long history of non-compliance with court orders. The court further found that there was no error of principle in imposing cumulative sentences, and that the total sentence was not excessive when compared to other cases.

In conclusion, the High Court dismissed the appeal and upheld the District Court's sentence of 21 months imprisonment. The court found that the District Court had appropriately balanced the various sentencing considerations, and that the sentence was not manifestly excessive. The court noted that the appellant's history of non-compliance with court orders and the need to protect the public were significant factors in the sentencing decision. The appeal was dismissed, and the sentence of 21 months imprisonment was upheld.

Orders