L v Police HC Rotorua CRI 2006-463-85

[2006] NZHC 1118

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2006-463-000085

L

Appellant

v

THE POLICE

Respondent

Hearing:         26 September 2006

Appearances: Mr Malcolm for appellant

Ms Bailey for respondent

Judgment:      26 September 2006

ORAL JUDGMENT OF WINKELMANN J

Crown Solicitor, Rotorua

H Edward, Rotorua

L V POLICE HC ROT CRI 2006-463-000085  26 September 2006

[1]      Mr L   appeals against a sentence of 300 hours community service and one years disqualification imposed following his conviction, having pleaded guilty to for an offence against s 56(3) of the Land Transport Act 1998.   The maximum penalty for that offence is a term of imprisonment not exceeding 3 months or a fine not exceeding $4,500 and the Court must order the person to be disqualified from holding or obtaining a driver’s licence for six months or more.

[2]      Mr L   was originally charged with driving with excess breath alcohol level of 976 micrograms of alcohol per litre of breath, having been convicted at least three  times  previously of  an  offence  against  the  stipulated  section  of  the  Land Transport Act 1998  with a  corresponding provision  of  the  Transport  Act  1962. However, on the day of hearing (4 September 2006), the prosecution sought and was granted  leave  to  amend  the  charge  to  an  offence  against  s  56(3)  of  the  Land Transport Act 1998.

[3]      The grounds of appeal advanced are that the Judge sentenced the appellant as if he was sentencing on a third or subsequent charge, gave too little weight to the amount of time that had elapsed since Mr L  ’ last previous conviction in relation to excess blood alcohol and gave too little weight to his outstanding work record and a self-referral for self-improvement counselling.

[4]      The sentencing notes of the Judge are brief.   He notes the level of breath alcohol is very high, being two and a half times the legal limit, and that the driving gave cause for concern because Mr L  ’ vehicle stopped abruptly at the intersection of Arawa and Amohia Streets.  There is no reference in the sentencing notes to Mr L  ’ previous convictions for drink driving.

[5]      Mr L   has three prior convictions for driving with an excess breath alcohol level, 1989 a level of 850 micrograms; 1986 a level of 950 micrograms and

1984 driving with excess blood alcohol level.   There are other driving related convictions, although the most proximate of those is as long ago as 1989.

[6]      There being no reference in his sentencing notes to the previous convictions, there is no basis for the appellant’s argument that the Judge was sentencing as if in relation to a third or subsequent conviction or that he gave too much weight to his earlier convictions.

[7]      The appellant is correct that there is no reference in the Judge’s notes to an allowance for a guilty plea, although in respect of breath alcohol offending I am not satisfied that an allowance for a guilty plea is appropriate where there is a high likelihood of conviction.  There is also no reference to the character related matters advanced on behalf of Mr L  , namely his good work record and the fact that he has self-referred to a personal development programme.  The Judge had before him a letter from the Challenge Violence Trust which recorded this fact and that one of the goals that Mr L   identified was to give up alcohol.

[8]      However, when one takes those matters into account by way of mitigation, I am  not  satisfied  that  the  sentence  imposed  was  clearly  excessive.    Although  a lengthy period of time has elapsed since the most recent blood alcohol conviction, I do consider that that was a factor relevant to sentence.  I also consider that it was relevant that this was very serious offending in that the level of breath alcohol was two and half times the legal limit.  There is also a final aggravating factor identified by the Judge which is the erratic driving by Mr L  .   These are all matters which tend to aggravate the level of offending.  Because of the seriousness of the offending and the aggravating factors that existed, a sentence of community service of 300 hours was not outside the available range, even when the matters by way of mitigation are taken into account.

[9]      In relation to the period of disqualification, six months is provided in the legislation as a minimum period.   In the light of serious offending, a period of disqualification of one year is by no means excessive.

[10]     The appeal against sentence is therefore dismissed.

Winkelmann J