Kucenko v Police

[2012] NZHC 3398

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2012-409-108 [2012] NZHC 3398

PAUL NICKOLAUS KUCENKO

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         13 December 2012

Appearances: S Bailey and A Millen for Appellant

C J Boshier for Respondent

Judgment:      13 December 2012

ORAL JUDGMENT OF FOGARTY J

[1]      The appellant was appearing before the District Court, Judge A D Garland, on a charge of driving with excess breath alcohol, the third or subsequent.  In fact, it was his tenth conviction for driving with excess breath or blood alcohol.  He was driving in an irregular manner, causing concern to a member of the public who contacted the police.  His blood test returned a result of 252 micrograms of alcohol per 100 millilitres of blood.  He is 60 years of age.  This is his tenth conviction over

40 years.  He clearly should not have been driving on the day.

[2]      He is precisely the sort of person whom Parliament is concerned should not drink  and  drive.    Parliament  has  provided  for  sentences  of  imprisonment  for

offending like this.

KUCENKO V NEW ZEALAND POLICE HC CHCH CRI-2012-409-108 [13 December 2012]

[3]      The Judge took a starting point of 20 months, and then allowed a deduction of 9 months. This is a very generous deduction from that starting point, but it was on account of his early guilty plea, as well as the fact that after the offence he had self- reported himself to the Nova Trust, which is  a work-based programme, and he engaged  in  that  programme for three months  until  he was  discharged  from  the programme, it having been assessed that he was appropriate for an early discharge. Around about this time, he appears to have become medicated for the first time with anti-depressants which have stabilised his mood.  The Judge thought that there were no mitigating items, but it appears he has been recently divorced, and was depressed.

[4]      Ms Bailey’s appeal argument was based on the proposition that the sentence is manifestly excessive.  She argued that he should have imposed a sentence of home detention, a sentence which had been recommended by the report writer.

[5]      When the argument is that the sentence is manifestly excessive, I remind myself that the question is not what sentence I would have imposed but rather whether or not there is a legitimate basis for this Court on appeal to intervene and set aside the decision of the District Court Judge.  I have not been persuaded that the sentence is manifestly excessive.   I accept that there has been a gap of about six years since previous offending.  I do not assume that there has been no breach of the law between those dates.  But my own assessment is that the appellant clearly has a serious problem.   He has been imprisoned before in 2006 for driving with excess blood alcohol, third or subsequent.   He has had other sentences in 2001.   He was imprisoned in 1997 for refusing a request for a blood specimen.   Now, these are, relatively speaking, a long time ago.  But again, relative to his age, not that long ago. He has been a mature man throughout this period; he is not a young man.

[6]      I think this is serious offending, and it was within the bounds of the judgment of Judge Garland to impose a stern sentence, which he has done.  The one part of the sentence I am prepared to adjust, which I normally would not, is that there is an error in the Judge’s arithmetic, which Ms Boshier appropriately pointed out to me.  On the Judge’s reasoning, with 9 months deduction off the 20 months starting point, the end sentence would have been 11 months not 12.   Plainly, the appellant feels quite aggrieved by this sentence, and I think it is appropriate that the internal logic of the

sentence be adjusted.  For that reason, the appeal is allowed, reducing the sentence to

11 months rather than 12 months, but otherwise leaving the other orders in place.

Solicitors:

S Bailey Barrister, Christchurch

Raymond Donnelly & Co, Christchurch