McNab v Police - [2014] NZHC 1493

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2014-419-6 [2014] NZHC 1493

BETWEEN
JUSTIN COLIN McNAB

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 30 June 2014

Counsel:

L S Caley for Appellant
T C Tran for Respondent

Judgment:

1 July 2014

JUDGMENT OF GODDARD J

This judgment was delivered by me on 1 July 2014

at 3.00 pm, pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Crown Solicitors Office, Hamilton for Respondent

McNAB v NEW ZEALAND POLICE [2014] NZHC 1493 [1 July 2014]

Introduction

[1] This is an appeal against sentence. On 20 January 2014 the appellant was convicted and sentenced in relation to a charge of driving with excess breath alcohol (third and subsequent). Judge Spear imposed a fine of $2,000.00 and disqualified the appellant from holding or obtaining a driver’s licence for two years.

Facts

[2] On 6 September the appellant was driving a motorbike when he was stopped by police and breath tested. His breath was found to contain 522 micrograms of alcohol per litre of breath.

[3] The appellant has previously been convicted on two charges of excess breath alcohol. The last of these convictions was entered on 14 December 2004.

District Court decision

[4] Judge Spear noted the following factors in sentencing the appellant: (a) the time since his last conviction of this kind;
(b) the appellant’s current employment;

(c) the appellant’s actions in disposing of his motorbike and contacting

Care New Zealand about an alcohol and drug assessment; and

(d) the appellant’s guilty plea.

Legislation

[5] Section 56(1) of the Land Transport Act 1988 provides that it is an offence to drive or attempt to drive a vehicle on a road with a breath alcohol level exceeding
400 micrograms of alcohol per litre of breath. Section 56(4) provides that the maximum penalty for a person convicted of a third or subsequent offence against subsection (1) is two years’ imprisonment or a fine not exceeding $6,000. The Court

must order the person to be disqualified from holding or obtaining a driver licence for more than one year.

[6] Section 83 provides that a person disqualified for more than one year must re-apply for a licence. The combined effect of s 56(4) and s 83 is that any person convicted of a third or subsequent offence against s 56(1) will always be required to re-apply for a licence at the expiry of the term of disqualification imposed by the Court.

Approach on appeal

[7] Section 250 of the Criminal Procedure Act 2011 applies. The appeal must be allowed if the Court is satisfied that, for any reason, there is an error in the sentence imposed on conviction and a different sentence should be imposed.

[8] Not every error in a sentence will provide the foundations for a successful appeal. The types of error contemplated by s 250(2)(a) include, but are not limited to, errors of law; failing to take account of or not giving sufficient weight to relevant factors; taking account…

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 McNab v Police

Details

AGLC: McNab v Police [2014] NZHC 1493
Case: [2014] NZHC 1493
Decision Date: 1 July 2014

CaseChat Overview and Summary

In the High Court of New Zealand, Justin Colin McNab appealed against his sentence for a conviction of driving with excess breath alcohol. The District Court judge imposed a fine of $2,000 and disqualified him from holding or obtaining a driver’s licence for two years. McNab argued that the length of the disqualification was inconsistent with the regime under the Land Transport Act 1998, which provides for an indefinite disqualification for repeat offenders. The respondent submitted that the sentence was appropriate given the precedent set by Blackler v Police and Fraser v Police. The court found that the District Court had not adequately addressed the issue of the length of disqualification and that a period of one year and one day was more appropriate in this case. The appeal was allowed in respect of the length of disqualification only. The period of disqualification of two years was quashed and a period of one year and one day’s disqualification imposed in lieu.

The legal issues before the court were whether there was an error in the sentence imposed on conviction and whether a different sentence should be imposed. The court considered whether there was an error in law, failure to take account of relevant factors, taking account of irrelevant factors, or committing an error of principle. The court found that there was no error by the sentencing judge, but it was appropriate to view the length of disqualification afresh in the absence of any submissions or reasons given for the period of disqualification imposed. The court also considered the importance of the secondary effect of disqualification, which is that the offender is required to reapply for their licence and may be required to complete approved courses, tests and examinations to ensure safety on the roads.

The court concluded that a period of disqualification of one year and one day was appropriate in the appellant’s case, based on the following reasons: the appellant’s prior convictions for excess alcohol related offences were in 2004; the level of excess breath alcohol was 522 micrograms rather than being excessively high; the amount of the fine was appropriately condign and the appellant is currently paying it off; the important aspect of disqualification is that the appellant is required to reapply for his licence and this is of greater importance than the length of the disqualification; and a two-year minimum period of disqualification will impose difficulties for him. The appeal was allowed in respect of the length of disqualification only, and the period of disqualification of two years was quashed and a period of one year and one day’s disqualification imposed in lieu.

Orders