O'Callaghan v Police - [2021] NZHC 2060

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2021-404-295

[2021] NZHC 2060

BETWEEN
PAUL MAURICE O’CALLAGHAN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 2 August 2021

Counsel:

B So for Appellant

E C Rutherford for Respondent

Judgment:

10 August 2021

JUDGMENT OF BREWER J

This judgment was delivered by me on 10 August 2021 at 3 pm

Registrar/Deputy Registrar

Solicitors:
Public Defence Service (Auckland) for Appellant Meredith Connell (Auckland) for Respondent

O’CALLAGHAN v POLICE [2021] NZHC 2060 [10 August 2021]

Introduction

[1] On 15 January 2021, Mr O’Callaghan was sentenced on one charge of driving with excess breath alcohol, to which he had pleaded guilty. Judge PJ Sinclair disqualified Mr O’Callaghan from driving for eight months, ordered him to carry out 90 hours of community work and be subject to nine months’ supervision.1

[2] Mr O’Callaghan appeals the components of his sentence requiring him to carry out community work and be subject to supervision. He contends that those components make the sentence manifestly excessive. He submits that his sentence should have been eight months’ disqualification and a fine of around $1,000.

Leave to appeal

[3] Mr O’Callaghan requires leave to appeal. He did not file his notice of appeal until 18 June 2021, about four months out of time.2

[4] Mr O’Callaghan, through counsel, submits that health issues delayed him taking advice on whether to appeal. The respondent does not claim prejudice and there is merit in the appeal. It is in the interests of justice to grant leave to appeal, and I do so accordingly.

Background

[5] On 20 November 2019, Mr O’Callaghan drove with a breath alcohol level in excess of 400 micrograms of alcohol per litre of breath. His breath alcohol level was 530 micrograms of alcohol per litre of breath. This was an offence under s 56(1) of the Land Transport Act 1998 (“the LTA”).

1 Police v O’Callaghan [2021] NZDC 11993. The sentencing notes do not refer to a particular period of supervision, but the notice of appeal and the appellant’s submissions state the period as nine months.
2 Criminal Procedure Act 2011, s 248(2). The period for filing a notice of appeal is 20 working days from the date of the sentencing.

Previous convictions

[6] Mr O’Callaghan has two previous convictions for driving with excess breath alcohol. The more recent was in April 2011. On that occasion, he had a breath alcohol level of 548 micrograms of alcohol per litre of breath. He was fined $450 and disqualified from driving for six months.

[7] Mr O’Callaghan was also convicted of driving with excess breath alcohol in January 2000 . At that time Mr O’Callaghan was younger than 20. As such, he was charged under s 57 of the LTA, which provides that it is an offence for a person under 20 to drive with a proportion of alcohol in their breath in excess of 150 micrograms of alcohol per litre of breath. Mr O’Callaghan’s…

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 O'Callaghan v Police

Details

AGLC: O'Callaghan v Police [2021] NZHC 2060
Case: [2021] NZHC 2060
Decision Date: 10 August 2021

CaseChat Overview and Summary

Paul Maurice O’Callaghan appeals against his sentence of eight months disqualification from holding a driver’s licence, 90 hours of community work, and nine months’ supervision, for driving with excess breath alcohol. Mr O’Callaghan submits that the community work and supervision make the sentence manifestly excessive. He argues that his sentence should have been an eight-month disqualification and a fine of around $1,000. The Police do not oppose the appeal. The appeal was filed outside of the 20 working day time period. However, Mr O’Callaghan’s counsel submits that health issues delayed him taking advice on whether to appeal. The Court accepts this submission and grants leave to appeal. The Court finds that the District Court Judge failed to consider section 13 of the Sentencing Act 2002 before she imposed a sentence of community service and supervision rather than a fine. The Court found that the imposition of a fine would have been sufficient to achieve the purposes for which the sentence is being imposed in this case, including holding Mr O’Callaghan to account for his conduct, denouncing Mr O’Callaghan’s conduct, and deterring Mr O’Callaghan and the public generally from driving after consuming excessive alcohol. The Court also found that the imposition of a fine is appropriate taking into account the principles of section 8 of the Sentencing Act 2002. The appeal is allowed. Mr O’Callaghan’s sentence is quashed. The Court substitutes a sentence of a fine of $1,000 and a period of disqualification from holding or obtaining a driver’s licence of eight months. The period of disqualification runs from midnight on 15 January 2021.

Orders