Nguyen v Police

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2024-404-000008

[2024] NZHC 541

BETWEEN

HUNG KIEU NGUYEN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	26 February 2024
Appearances:	S J Morgan and M W Büdler for Appellant O J Southern for Respondent
Judgment:	13 March 2024

JUDGMENT OF WILKINSON-SMITH J

This judgment was delivered by me on 13 March 2024 at 4 pm.

………………………… Registrar/Deputy Registrar

Solicitor:

Public Defence Service, Manukau Crown Solicitor, Manukau

HUNG KIEU NGUYEN v NEW ZEALAND POLICE [2024] NZHC 541 [13 March 2024]

[1]    The appellant, Hung Nguyen, was sentenced on 20 December 2023 on the following charges:

(a)       10 May 2023:

(i)careless driving; and

(ii)driving with excess breath alcohol.

(b)       21 July 2023:

(i)       driving with excess breath alcohol.

(c)       28 July 2023:

(i)       driving with excess breath alcohol.

(d)25 August 2023:

(i)driving with excess breath alcohol;

(ii)driving while suspended; and

(iii)refusing to permit blood specimen.

(e)28 August 2023:

(i)failing to answer District Court bail.

[2]He was sentenced in the District Court as follows:

(a)eight months’ imprisonment for failing to answer District Court bail;

(b)three months’ imprisonment on each of four counts of driving with excess breath alcohol, first or second offence (concurrent);

(c)three months’ imprisonment for refusing an officer’s request to give blood;

(d)conviction and discharge for careless driving and for driving while suspended; and

(e)disqualification from driving for three years.

[3]    The appellant appeals on the basis that the end sentence of eight months’ imprisonment is manifestly excessive.

Background and offending

[4]I adopt the background set out in the respondent’s submissions.

[5]    On 10 May 2023, the appellant was the driver of a silver Honda motor vehicle along Te Irirangi Drive, Clover Park. The appellant failed to maintain a safe travel distance and collided into the rear of the victim's vehicle ahead of him. He completed a breath test and the appellant's breath was found to contain 1,154 micrograms of alcohol per litre of breath. He was subsequently charged with driving with excess breath alcohol (EBA) and careless driving and was granted police bail.

[6]    At about 1.00 am on 21 July 2023, the appellant was driving through the McDonalds drive-through, where police were called due to his driving behaviour. The appellant's breath was found to contain 1,034 micrograms of alcohol per litre of breath. He was charged with driving with EBA.

[7]    At about 11.45 pm on 28 July 2023, the appellant was the driver of a Honda motor vehicle along Fort Street, Auckland. The appellant was signalled to stop by police and underwent a breath test. The appellant's breath was found to contain 1,039 micrograms of alcohol per litre of breath. He was charged with driving with EBA.

[8]    At about 6.50 pm on 25 August 2023, the appellant was involved in a minor traffic collision on Puhinui Road, Papatoetoe. The appellant completed a breath test,

which returned a result of 1,208 micrograms of alcohol per litre of breath. Police suspended his…