Matkovich v Police - [2013] NZHC 872

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2013-404-000103 [2013] NZHC 872

GLEN MATKOVICH
Appellant

v

NEW ZEALAND POLICE
Respondent

Appearances: S Tait for the Appellant
K C Francis for the Respondent

Judgment: 23 April 2013

JUDGMENT OF GILBERT J

This judgment was delivered by me on 23 April 2013 a 4.45pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar
Date:

Solicitors: S Tait, Auckland: info@shanetait.co.nz
K C Francis, Auckland: kim.francis@meredithconnell.co.nz

MATKOVICH V POLICE HC AK CRI 2013-404-000103 [23 April 2013]

[1] On 27 March 2013, Judge R G Marshall sentenced Mr Matkovich to a term of six months’ imprisonment for driving with excess breath alcohol and disqualified him from driving for a period of two years. Mr Matkovich was sentenced at the same time on a charge of careless use of a motor vehicle. This charge arose out of the same incident. The Judge imposed a concurrent period of disqualification of six months for this. The Judge also ordered Mr Matkovich to pay reparation of
$7,764.11.

[2] This was Mr Matkovich’s sixth conviction for driving with excess breath or blood alcohol. His five previous convictions for this type of offending were for offences committed in 1991, 1992, May 1998, September 1998 and November 2010. He has previously been sentenced to two terms of non-residential periodic detention and one term of community work for such offending.

[3] The maximum penalty for a third or subsequent offence of driving with excess breath alcohol is two years’ imprisonment or a fine not exceeding $6,000. The minimum period of disqualification for such an offence is 12 months. Mr Matkovich appeals against the sentence imposed on the excess breath alcohol charge. He argues that the Judge ought to have sentenced him to periodic detention rather than imprisonment.

[4] On 6 November 2012, after drinking for some seven hours, Mr Matkovich elected to drive. The weather was wet and the traffic was heavy as Mr Matkovich approached a controlled intersection on a busy road at about 5.30 pm. Mr Matkovich drove over a roundabout, which was a raised traffic island, and collided with the left-hand side of the victim’s car, causing damage to both vehicles. Mr Matkovich was tested and found to have a breath alcohol level of
901 micrograms of alcohol per litre of breath, more than twice the legal limit.

[5] The Judge adopted a starting point of nine months’ imprisonment. He gave a discount of two months for the guilty plea and a further one month for Mr Matkovich’s efforts to pay reparation. This gave an end sentence of six months’ imprisonment.

[6] The grounds of appeal in the notice of appeal are that the sentence was manifestly excessive and wrong in law. Mr Tait clarified that no issue is taken with the starting point adopted by the Judge or the discounts he allowed. The sole issue on appeal is whether the indicated sentence of six months’ imprisonment should have been commuted to a sentence of home…

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.

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Details

Case: [2013] NZHC 872
Decision Date: 23 April 2013

CaseChat Overview and Summary

In Matkovich v Police, the appellant, Mr Matkovich, appealed against his sentence of six months’ imprisonment for driving with excess breath alcohol, which was imposed by Judge R G Marshall. Mr Matkovich, who has a history of multiple convictions for driving with excess alcohol, argued that the Judge should have sentenced him to periodic detention rather than imprisonment. The central issue before the court was whether the sentence of imprisonment was appropriate, considering the seriousness of the offence and Mr Matkovich's criminal history.

The court found that the Judge erred by focusing solely on deterrence and ignoring other principles and purposes of sentencing, as mandated by the Sentencing Act 2002. It was held that the Judge should have considered whether a community-based sentence was appropriate and provided reasons for rejecting it if that was his conclusion. Despite this error, the court concluded that a short term of imprisonment was the appropriate outcome in this case, given the seriousness of the offence, Mr Matkovich’s history of non-compliance with court orders, and the high likelihood of re-offending.

Ultimately, the court dismissed the appeal and upheld the sentence of six months’ imprisonment. The reasoning was that the principles and purposes of sentencing could not be adequately met by a sentence of home detention, and the seriousness of the offence warranted a term of imprisonment. This decision reflects the court's commitment to ensuring that sentences align with the objectives of deterrence and protection of the community, particularly in cases of repeat drink-driving offences.

Orders