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 his driver’s licence was very important to him. He took into account, to the appellant’s credit, that the appellant had no previous convictions, and he imposed a fine of $450, and ordered the appellant to pay court costs of $130. Judge Dawson further found that there were special reasons relating to the offence such that he did not disqualify the appellant from holding a driver licence.5

Approach on appeal against sentence

[6]        An appeal against sentence is governed by the Criminal Procedure Act 2011. Section 250(2) provides that the Court must allow an appeal against sentence if satisfied that for any reason, there is an error in the sentence imposed on conviction, and a different sentence should be imposed. In any other case, the Court must dismiss the appeal.6

[7]        The Court of Appeal in Tutakangahau v R confirmed that s 250(2) was not intended to change the previous approach taken by the courts under the Summary Proceedings Act 1957.7 As such, the measure of error that must be shown, is that the sentence is “manifestly excessive”.8 The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence was reached.

5 At [5].

6      Criminal Procedure Act 2011, s 250(3).

7      Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [26] – [27].

8      At [26] – [27].

Submissions

For the appellant

[8]        The appellant is self-represented. He made oral submissions with the assistance of an interpreter who translated from Farsi to English.

[9]        In his Notice of General Appeal against sentence, the appellant states that the grounds of his appeal are that the District Court Judge did not have the full circumstances before him due to counsel’s failure to follow instructions. The appellant’s written submissions are set out in an email he sent to the Crown Solicitor on 8 August 2020.

[10]       The appellant says that on the night of 24 June 2019, he and his school-aged son attended a party at an address in Remuera Road. They were both intending to stay the night, and there were other school-aged children present. The appellant says that, as he was intending to stay the night at the address and drive no further that night, he consumed alcohol. However, later during the evening, a dispute arose with the occupants of a neighbouring property who had complained of the noise being made. The dispute escalated and one of the young men at the party was punched in the face, resulting in the Police being called. After the Police had departed and matters had settled down, the appellant says the owner of the house asked him to move his car from where it was blocking the driveway, in case the downstairs neighbours wanted to leave early the next morning. The appellant says that he and his son then drove his car out of the driveway onto Remuera Road. The appellant says that he intended to drive only a short distance beyond the bus stop directly outside the property, so as to park the car before returning to the house. He says that almost immediately after he drove onto the road he was stopped by the Police and asked to undergo a breath alcohol test.

[11]      The appellant says that he had several different lawyers over the course of the proceedings and that although he had told them the circumstances in which he had come to be driving, they had not provided his explanation to the Court. In his written and oral submissions, the appellant says that, prior to being sentenced on 28 May 2020, he had been to Court numerous times for the matter and this had resulted in his son

missing school on those days. He says that he has been living in New Zealand for 18 years and he does not want to be placed on a “black list” as a result of this driving, because he does not consider himself to have done anything wrong.

For the respondent

[12]      Mr Belcher, for the respondent, submits that there was no error in Judge Dawson’s decision, and the sentence he imposed is not manifestly excessive.

[13]      Mr Belcher submits that there is no guideline judgment pertaining to first-time excess breath alcohol offenders.9 He cites Murphy v Police and Bool v Police as two examples of sentences imposed in cases of broadly similar offending.10

(a)In Murphy v Police, Justice Faire considered that a sentence of a $1,000 fine and six-month disqualification on an excess breath alcohol charge would have been appropriate for Mr Murphy’s offending.11 Mr Murphy was not a first-time offender, although his previous blood alcohol offending had occurred some ten years earlier. A member of the public had reported his erratic driving to Police. Police found Mr Murphy sitting in the backseat of his car with a passenger in a public carpark. His breath alcohol content was found to be over the limit, and Mr Murphy admitted to driving to the carpark two hours earlier.

(b)In Bool v Police, Justice Collins sentenced Mr Bool to a fine of $800 on his first offence against s 56(1) of the Land Transport Act 1998. Mr Bool had driven with excess breath alcohol under the belief that he needed medical attention following an assault. His breath alcohol content was 638 micrograms of alcohol per litre of breath.

[14]      Mr Belcher accepts that the gravity of the appellant’s offending was low. However, he submits that driving on a road with excess breath alcohol nonetheless

9      Clotworthy v Police (2003) 20 CRNZ 439 applies to third or subsequent offences.

10 Murphy v Police [2014] NZHC 2835; Bool v Police [2013] NZHC 2548.

11 Justice Faire noted that he would have imposed a sentence of $1,000 in place of the sentence of community work however, the sentence of community work had been part served. Accordingly, the Judge quashed the sentence of community work and did not impose a fine.

presents a risk to the health and safety of road users. He submits that a risk was present in this case notwithstanding the short distance the appellant travelled on the road while moving his car towards a parking place. He submits that it was appropriate to impose a fine to denounce and deter such conduct,12 and further that, having regard to the sentences imposed for similar offending, the level of fine was appropriate.

Analysis

[15]      For the reasons outlined by Mr Belcher, I am not satisfied that there was any error in the sentence imposed in the District Court. The $450 fine imposed by the Judge is well below the amount of the fines imposed in the cases of Murphy and Bool where the driving was more extensive and consequently presented a much greater risk to other road users.

[16]      Here, the risk to other road users was comparatively low, but any driving by an alcohol impaired driver involves risk to other road users. The amount of the fine imposed is clearly within the range for sentences for offending of this kind and gravity and is in accordance with the sentencing objective of consistency with sentences imposed for similar offending.13 Moreover, the Judge accepted the appellant’s explanation that he was relocating his car from the private driveway to park it on the roadside so as not to block the driveway, and found there were special reasons why he would not disqualify the appellant from driving. The Judge’s finding of special reasons recognised that the circumstances involved in the driving were such as did not warrant the imposition of a period of disqualification.

[17]      The appellant’s submission that he had done nothing wrong and that his lawyers had failed to inform the Court of his explanation of why he was driving are not matters that are relevant to his appeal against sentence. The appellant pleaded guilty to the charge of driving with excess breath alcohol when he appeared before the District Court on 25 September 2019, and, at the sentencing hearing on 28 May 2020, his counsel advised the Judge that he accepted the prosecution summary of facts. In these circumstances, the appellant’s appeal against the sentence imposed can only

12     Sentencing Act 2002, ss 7 and 8.

13     Sentencing Act 2002, s 8(a) and (e).

succeed if he can show that the sentence imposed on him by Judge Dawson was manifestly excessive. As he has failed to establish that it is manifestly excessive, his appeal must fail.

Result

[18]The appeal is dismissed.

Paul Davison J