Lee v Police

[2023] NZHC 2906

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2023-404-443

[2023] NZHC 2906

BETWEEN

TYRESE LEE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	16 October 2023
Appearances:	K Hamblin for the appellant H Bell for the respondent
Judgment:	17 October 2023

JUDGMENT OF CAMPBELL J

[Appeal against Sentence]

This judgment was delivered by me on 17 October 2023 at 3.30 pm

Registrar/Deputy Registrar

LEE v NEW ZEALAND POLICE [2023] NZHC 2906 [17 October 2023]

[1]                Mr Lee pleaded guilty to one charge of driving with excess breath alcohol.1 Judge J Jelaš  sentenced  him  to  50  hours  of  community  work  and  12  months  of intensive supervision and disqualified from driving for seven months. The Judge also remitted $5,000 of fines, and in lieu thereof imposed 110 hours of community work (to be completed concurrently with the other 50 hours).2

[2]                Mr Lee appeals against the sentences of 50 hours of community work and 12 months of intensive supervision and against the decision to impose 110 hours of community work in lieu of $5,000 of fines.

Background

[3]                In the early hours of 14 August 2023, Mr Lee was driving a car in central Auckland. He was stopped by Police. Evidential breath test procedures were administered. Mr Lee returned a result of 589 micrograms of alcohol per litre of breath. The threshold for an offence under s 56 of the Land Transport Act 1998 is 400 micrograms of alcohol per litre of breath.

[4]                Mr Lee was 20 years old at the time of the offending. He had no previous convictions. He did have a number of demerit points and had accumulated approximately $9,000 in fines. He was paying those fines off at $60 per week. He was in employment and was supporting his partner and their infant daughter.

District Court decision

[5]                Judge Jelaš noted that Mr Lee had an extremely poor driving history. Her Honour said that Mr Lee needed to look at why he had an inability to drive in accordance with the road rules. However, the Judge also recorded that Mr Lee had never been before the court before, was working and had a family to support. It was important that he keep his job.

1      Land Transport Act 1998, ss 56(1) and (3), for which the maximum penalty is three months’ imprisonment or a fine not exceeding $4,500. The court must also order the person to be disqualified from holding or obtaining a driver’s licence for six months or more.

2      New Zealand Police v Lee [2023] NZDC 18191.

[6]                In addition to disqualifying Mr Lee from driving for seven months, the Judge sentenced him to community work of 50 hours, commenting that it was not a good idea to impose another fine on him given he had such a large amount of fines outstanding. Her Honour also imposed intensive supervision for 12 months, asking probation to focus on a driving-related programme and any other programmes or treatments or counselling Mr Lee needed.

[7]                The Judge also remitted $5,000 of Mr Lee’s fines, imposing 110 hours of community work in lieu of those remitted fines.

Principles governing sentence appeals

[8]                For a sentencing appeal to succeed the sentence generally must be shown to be manifestly excessive or wrong in principle.3 The Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive generally depends on the end sentence imposed, rather than the process by which it is reached.4

Grounds of appeal

[9]                Ms Hamblin, counsel for Mr Lee, submitted that there were two errors in Judge Jelaš’s sentencing. First, she submitted that the Judge ought to have imposed a fine for the excess breath alcohol charge rather than imposing community work or intensive supervision. She submitted that a sentence of a fine was the least restrictive sentence that was appropriate in the circumstances. Secondly, she submitted that given Mr Lee’s personal circumstances (with a dependant partner and infant daughter and with employment obligations) the Judge ought not to have remitted the fines in exchange for 100 hours of community work.

Did the Judge err in imposing sentences of community work and intensive supervision?

[10]            The effect of s 13 of Sentencing Act 2002 is that, if the court is entitled to impose a fine, it must regard the fine as the presumptively appropriate sentence. That

3      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27] and [31]–[35].

4 At [36].

presumption can be displaced only if a fine is inappropriate for one of the reasons set out in s 13, or if the court is satisfied (in terms of s 14) that the defendant does not or will not have the means to pay a fine.

[11]            Judge Jelaš did not refer expressly to ss 13 and 14. There is no suggestion from the Judge’s sentencing remarks that the Judge thought a fine was an inappropriate sentence for any of the reasons set out in s 13 (and, on the appeal, counsel for the Police did not suggest that any such reasons applied). Section 14 is engaged only if the court is first satisfied that the defendant does not or will not have the means to pay the fine that would otherwise be imposed. Judge Jelaš did not make such a finding. Her Honour said that she did not think it was a good idea to impose another fine on Mr Lee given that he had such a large amount outstanding. But that is not the same as finding that Mr Lee did not or would not have the means to pay a fine. The Judge did not refer to any evidence that would support such a finding, other than the size of the outstanding fines. But Mr Lee is in employment and has been paying his fines off at

$60 per week.

[12]            A fine was therefore the presumptively appropriate sentence for Mr Lee’s driving charge. There was nothing to displace that presumption in this case. Mr Bell, counsel for the Police, acknowledged that a fine (together with disqualification) is the usual sentence imposed on both first and second drink-driving offences. This was Mr Lee’s first such offence. Mr Bell also accepted that, given the absence of any aggravating factors and the level of alcohol being at a relatively low level, a fine would have been the appropriate sentence.

[13]            Further, the sentences of community work and intensive supervision were particularly onerous in Mr Lee’s circumstances. Judge Jelaš granted Mr Lee a limited licence to enable him to maintain his employment and to pick up his daughter from kindergarten. The limited licence does not provide for him to attend community work or intensive supervision. Those engagements also present a significant challenge to Mr Lee keeping his full-time job.

[14]            I therefore conclude that the Judge erred in imposing a sentences of community work and intensive supervision. The appropriate sentence was a fine of $600.

Did the Judge Err in imposing community work in lieu of fines?

[15]            A District Court Judge can substitute community work for fines only in the circumstances set out, and after following the procedures, in ss 88AE(1)(e) and 106E of the Summary Proceedings Act 1957. There was no indication that the procedures set out in those sections were followed or that the criteria in those sections were satisfied.

[16]            Judge Jelaš was clearly intending to assist Mr Lee by remitting a large portion of his outstanding fines in exchange for community work. But, for the reasons set out earlier, community work is a considerable imposition on Mr Lee (and his dependent family).

Result

[17]I allow Mr Lee’s appeal.

[18]            I quash the sentences of 50 hours of community work and intensive supervision and substitute a fine of $600 in their place. I restore the $5,000 of fines that the Judge remitted and quash the 110 hours of community work that was imposed in substitution for them.

Campbell J