IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CRI-2016-488-57 [2017] NZHC 126
BEREN BJON MASON
v
NEW ZEALAND POLICE
Hearing: 3 February 2017 Counsel:
AM Dooney for applicant
JW Wall for CrownJudgment:
10 February 2017
JUDGMENT OF FITZGERALD J
This judgment was delivered by me on 10 February 2017 at 4 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date…………
Solicitors: Crown Solicitor, Whangarei
To: AM Dooney, Barrister, Whangarei
Mason v New Zealand Police [2017] NZHC 126 [10 February 2017]
Introduction
[1] Mr Mason pleaded guilty to a charge under s 56(1) of the Land Transport Act
1998 of driving with an excess breath alcohol (“EBA”) level of 629 mcg/L of breath. This was Mr Mason’s fourth drink-driving conviction.1 The charge has a maximum penalty of two years’ imprisonment or a fine of $6000, and a minimum disqualification period of 12 months.2
[2] Judge M J Hunt in the District Court at Whangarei sentenced Mr Mason to six months’ imprisonment, with post-release conditions of six months and a disqualification of 13 months.3
[3] Mr Mason now appeals his sentence on the basis that, during the sentencing process, the Judge improperly applied an uplift for an EBA “infringement” which occurred subsequent to the index offending.
Background
[4] Mr Mason is a 33-year-old builder. On 26 February 2016, he was stopped by Police as he drove along Woodcocks Rd, Warkworth. A breath-alcohol test was administered. The subsequent evidential breath test recorded Mr Mason’s breath- alcohol level to be 629 mcg/L of breath.
[5] Mr Mason was sentenced nine months later, in November 2016. In the meantime, he received a fine for another EBA-related matter: on 26 March 2016, i.e. one month subsequent to the index offending, he was found to be driving with an alcohol level in excess of 250 mcg but less than 400 mcg, for which he received a
fine of $200 (“EBA infringement”).4
Prior offending
[6] Mr Mason has three previous convictions for excess breath/blood alcohol offending:
1 Though one conviction was for offending in 2003, when Mr Mason was under 20.
2 Land Transport Act 1998, s 56(1) and 56(4).
3 Police v Mason [2016] NZDC 24223.
4 $200 being the prescribed penalty for this infringement offence; s 56(1A) of the Act.
Offence Date Reading
LTA Reference
Penalty Imposed
27 September
2003
259 mcg/L breath
Sections 56(1) and
11(c)(i): under 20 years of age
$250 fine; three months’ disqualification
5 November
2004
94 mg/100 ml blood
Sections 56(1) and 11(b)
$380 fine; 6 months’
disqualification
15 October 2008
563 mcg/L breath
Sections 56(1), 56(4) and 11(b): third or subsequent
400 hours’ community work, 9 months’ disqualification
[7] He also has previous convictions for drug, property and violence-related offending, as well as multiple convictions between 2008 and 2012 for failing to comply with community work or intensive supervision conditions.5
District Court decision
[8] The Judge began by observing that Mr Mason had accrued at total of
$3775.69 in fines and penalties, in respect…
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CaseChat Overview and Summary
Mr Mason pleaded guilty to a charge under s 56(1) of the Land Transport Act 1998, carrying a maximum penalty of two years' imprisonment or a fine of $6000, and a minimum disqualification period of 12 months. He had three previous convictions for excess breath/blood alcohol offending, the most recent of which occurred in 2008. Mr Mason's breath alcohol level at the time of the offence was 629 mcg/L of breath. He was sentenced to six months' imprisonment, with post-release conditions of six months and a disqualification of 13 months. The District Court Judge imposed the uplift of two months specifically for the subsequent EBA infringement, which occurred one month after the index offence. Mr Mason's counsel argued that the Judge erred in imposing the uplift and that it constituted double punishment for the same offence.
The Court examined the legal issues by referring to previous decisions and the principles of sentencing. The court held that the Judge was wrong to impose a two-month uplift specifically for the subsequent EBA infringement as it was made under an error of principle. However, the court found that the sentence was not manifestly excessive and dismissed the appeal. The court concluded that the sentence was within the available range and that interfering with it would involve "tinkering" with the sentence.
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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