Moradi v Police - [2020] NZHC 2276

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-000248

[2020] NZHC 2276

BETWEEN
MOSTAFA MORADI

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 31 August 2020

Appearances:

Appellant in person

R Belcher for Respondent

Judgment:

2 September 2020

JUDGMENT OF PAUL DAVISON J

This judgment was delivered by me on 2 September 2020 at 3:00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Crown Solicitor, Auckland

MORADI v POLICE [2020] NZHC 2276 [2 September 2020]

Introduction

[1] Mostafa Moradi (the appellant) appeals his sentence of a $450 fine for one charge of driving with excess breath alcohol.

Background

[2] On 24 June 2019, at approximately 1.30 am, the appellant drove his motor vehicle a short distance on Remuera Road. He was stopped by Police who observed that he exhibited signs of recent consumption of alcohol. Breath alcohol testing procedures were undertaken and the results showed he had a breath alcohol level of 476 micrograms of alcohol per litre of breath, being 226 micrograms over the legal limit. He was charged with committing his first offence under s 56(1) of the Land Transport Act 1998. He pleaded guilty to the charge on 25 September 2019.

[3] The maximum penalty for a first offence under s 56(1) is imprisonment for a term not exceeding three months or a fine not exceeding $4,500.1 The charge also engages the penalty of mandatory disqualification from holding or obtaining a driver license for 6 months or more.2 The Court has a discretion under s 81 of the Land Transport Act 1998 not to order disqualification where, for special reasons relating to the offence, it thinks fit to order otherwise.3

[4] On 28 May 2020, the appellant appeared before Judge N R Dawson in the District Court at Manukau.4 Judge Dawson observed that Mr Moradi’s matter had been adjourned on four previous occasions to enable him to file an application for a discharge without conviction pursuant to s 106 of the Sentencing Act 2002, together with an application pursuant to s 81 that he not be disqualified from driving, but despite being given those opportunities, he had failed to take any steps to do so. The Judge declined the appellant’s application for yet a further adjournment to enable the applications to be made, saying that he was not prepared to allow the matter to go on any further.

1      Land Transport Act 1998, s 56(3)(a).
2      Land Transport Act 1998, s 56(3)(b).
3      Land Transport Act 1998, s 81.
4      Police v Moradi [2020] NZDC 12440.

[5] The Judge then proceeded with sentencing. He noted that the appellant accepted the prosecution summary of facts and also noted the submission made by the appellant’s counsel that the appellant had only driven a very short distance because he was moving his vehicle from where it had been blocking a parking space. The Judge also noted that the appellant works as a taxi driver and that…

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 Moradi v Police

Details

AGLC: Moradi v Police [2020] NZHC 2276
Case: [2020] NZHC 2276
Decision Date: 2 September 2020

CaseChat Overview and Summary

The case of Moradi v Police [2020] NZHC 2276 involved Mostafa Moradi, who appealed against his sentence of a $450 fine for driving with excess breath alcohol. The matter was heard by the High Court, which dismissed the appeal. The appellant, who was self-represented, argued that his sentence was manifestly excessive due to his lawyers not following his instructions regarding the circumstances of his driving. The court noted that the appellant had pleaded guilty and accepted the prosecution's facts, and that his explanation for driving was accepted by the sentencing Judge. The court found that the fine imposed was appropriate and consistent with sentences for similar offending, and was not manifestly excessive.

The legal issue before the court was whether the appellant's sentence of a $450 fine for driving with excess breath alcohol was manifestly excessive. The court examined the sentence in terms of the sentence given, rather than the process by which the sentence was reached. The court noted that the appellant had pleaded guilty and accepted the prosecution's facts, and that his explanation for driving was accepted by the sentencing Judge. The court found that the fine imposed was appropriate and consistent with sentences for similar offending, and was not manifestly excessive. The court also noted that the appellant had not shown that his lawyers had failed to follow his instructions, and that this was not a relevant matter to his appeal against sentence.

Orders