Mason v Police - [2017] NZHC 126

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 Crown

Judgment:

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…

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 Mason v Police

Details

AGLC: Mason v Police [2017] NZHC 126
Case: [2017] NZHC 126
Decision Date: 10 February 2017

CaseChat Overview and Summary

In Mason v Police, Mr Mason appealed his sentence for driving with an excess breath alcohol level, arguing that the sentencing Judge improperly applied an uplift for an EBA infringement that occurred subsequent to the index offence. The High Court considered whether the Judge erred in applying the uplift and whether a different sentence should be imposed. The court found that the uplift was made under an error of principle but concluded that the sentence was not manifestly excessive. The appeal was dismissed.

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