Ngatikai v Police - [2014] NZHC 3294

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2014-004-000413 [2014] NZHC 3294

BETWEEN
CHANTELL PENE NGATIKAI

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 16 December 2014

Appearances:

J W Mackey for the Appellant
L M Mills for the Respondent

Judgment:

17 December 2014

[RESERVED] JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie on 17 December 2014 at 4.00 pm
Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

NGATIKAI v POLICE [2014] NZHC 3294 [17 December 2014]

Introduction

[1] Ms Ngatikai appeals against a sentence of six months’ imprisonment imposed on her by Judge R Collins in the District Court at Waitakere on 3 December 2014. Ms Ngatikai had been convicted following a guilty plea, of driving with excess breath alcohol.

Relevant Facts

[2] On 6 June 2014, Ms Ngatikai was the driver of a vehicle on Great North Road in Kelston. The police observed her swerving in her lane, and, as a result, she was stopped. An evidential breath test was administered. It revealed a breath alcohol level of 899 micrograms of alcohol per litre of breath.

[3] Ms Ngatikai had three previous convictions for driving with excess breath alcohol. She was charged under s 56(4) of the Land Transport Act 1998. The maximum penalty available for such offending is a term of imprisonment not exceeding two years or a fine not exceeding $6,000. The court must order that the offender is disqualified from driving for more than one year.

[4] Ms Ngatikai first appeared on 19 June 2014. She was granted bail. She appeared again on 21 July 2014, when she entered a guilty plea. She was sentenced on 3 December 2014.

Judge Collins’ Sentencing Notes

[5] Judge Collins referred briefly to each of Ms Ngatikai’s previous offences for driving with excess breath alcohol. He noted that they had occurred over the period August 2010–May 2011. He considered that she falls into the category of persons who are consistently at great risk of causing serious injury or death on the roads. He observed that she has not learnt at all from her previous three convictions. Indeed, he went on to note that Ms Ngatikai does not seem to have learnt a great deal from any court-imposed sanctions, and he set out briefly various sentences which have been imposed on her in recent times.

[6] Judge Collins referred to Clotworthy v Police,1 and observed that the appropriate starting point was a sentence in the vicinity of eight–nine months’ imprisonment. He did not uplift that figure, notwithstanding that it was Ms Ngatikai’s fourth conviction for driving with excess breath alcohol, because he accepted that prior offending was inherent in the charge she faced. He gave Ms Ngatikai a one-month discount for her relatively young age (she is 22 years’ old) and her “clear immaturity”. He gave her a further two-month discount for her guilty plea. He declined to impose an electronically monitored sentence. He considered that the offending was repeat and…

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.

Keep reading for free

Create a free CaseChat account to read Ngatikai v Police and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] NZHC 3294
Decision Date: 17 December 2014

CaseChat Overview and Summary

The High Court of New Zealand heard an appeal from Chantell Pene Ngatikai, who was sentenced to six months imprisonment by Judge R Collins in the District Court for driving with excess breath alcohol. Ngatikai's appeal against the sentence was dismissed by Justice Wylie. Ngatikai was observed by police swerving within her lane and was found to have a breath alcohol level of 899 micrograms per litre of breath, more than double the legal limit. Ngatikai had three previous convictions for driving with excess breath alcohol. The maximum penalty for such offending is a term of imprisonment not exceeding two years or a fine not exceeding $6,000, with the court required to order that the offender is disqualified from driving for more than one year. Ngatikai was sentenced to six months imprisonment, with Judge Collins noting that she falls into the category of persons who are consistently at great risk of causing serious injury or death on the roads and that she has not learnt from her previous convictions. The starting point for sentencing was a sentence in the vicinity of eight–nine months’ imprisonment. Ngatikai was given a one-month discount for her relatively young age and a further two-month discount for her guilty plea. Ngatikai's counsel argued that the sentence imposed was wrong in principle and that the sentence that was ultimately imposed was manifestly and clearly excessive. Counsel submitted that Judge Collins had focussed only on the negative and ignored the positive efforts Ngatikai had taken to address her issues with alcohol, and that a sentence of community detention should have been imposed. The Crown submitted that Ngatikai's record clearly demonstrates that she has had difficulty in complying with community-based sentences and that the end sentence was within the appropriate range for offending of this type. Justice Wylie noted that Ngatikai's offending was serious and that the starting point for sentencing was appropriate. While it was open to Judge Collins to consider a community-based sentence, his decision not to do so involved the exercise of the discretion, and in the court's view, Judge Collins did not err in the end sentence he imposed. The appeal was dismissed.

Orders