O'Callaghan v Police
[2021] NZHC 2060
•10 August 2021
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 breath alcohol level was 465 micrograms of alcohol per litre of breath. He was fined $450 and disqualified from driving for six months.
Charging document
[8] The charging document originally filed against Mr O’Callaghan described his offence as follows:
DID DRIVE A MOTOR VEHICLE ON ROAD NAMELY ABBOTTS WAY, REMUERA, AUCKLAND WHILE THE PROPORTION OF ALCOHOL IN YOUR BREATH EXCEEDED 400 MICROGRAMS OF ALCOHOL PER LITRE OF BREATH IN THAT IT WAS 530 MICROGRAMS OF ALCOHOL PER LITRE OF BREATH YOU HAVING BEEN CONVICTED AT LEAST TWICE PREVIOUSLY OF AN OFFENCE AGAINST ANY OF SECTIONS 56(1), 56(2), 57A(1), 58(1), 60(1), 61(1), OR 61(2) OF THE LAND TRANSPORT ACT 1998 OR THE CORRESPONDING PROVISIONS OF THE TRANSPORT ACT 1962
(Italics added)
[9] The legislative reference recorded on the charging document referred to ss 56(1) and 56(4) of the LTA. Section 56(4) of the LTA provides:
(4)If a person is convicted of a third or subsequent offence against subsection (1) or subsection (2), or any of sections 57A(1), 58(1), 60(1), or 61(1) or (2) (whether or not that offence is of the same kind as the person’s first or second offence against any of those provisions),—
(a)the maximum penalty is imprisonment for a term not exceeding 2 years or a fine not exceeding $6,000; and
(b)the court must order the person to be disqualified from holding or obtaining a driver licence for more than 1 year.
Amended charging document
[10] At some point on 15 January 2021 (the date of the sentencing), the charging document was amended by hand to delete that part of the offence description that is italicised above. There is a handwritten note on the charging document recording that it was amended by consent on 15 January 2021. The charging document was also amended to remove reference to s 56(4) of the LTA. The reference to the maximum penalty was also amended to refer to that which applies pursuant to s 56(3) rather than s 56(4) of the LTA.
[11] These amendments were entirely appropriate. Mr O’Callaghan had not at that time been convicted twice of any of the offences originally described in the charging notice and as set out in s 56(4) of the LTA. His first conviction for driving with excess breath alcohol was when he was younger than 20. As such it was an offence against s 57 of the LTA.
[12] If this had been Mr O’Callaghan’s third or subsequent offence against s 56(1) (or any of the other statutory provisions originally described in the charging document) then he would have been liable to a maximum penalty of imprisonment for a term not exceeding two years or a fine not exceeding $6,000;3 and the Court would have been required to have ordered him to be disqualified from holding or obtaining a driver’s licence for more than one year.4 He would also have been required to re-apply for his driver licence at the end of that disqualification period.
[13] However, because this was Mr O’Callaghan’s second offence against s 56(1) of the LTA, the maximum penalty set out at s 56(3) of the LTA applies. That is, imprisonment for a term not exceeding three months or a fine not exceeding $4,5005 and disqualification from holding a driver licence for six months or more.6
3 Land Transport 1998, s 56(4)(a).
4 Section 56(4)(b).
5 Section 56(3)(a).
6 Section 56(3)(b).
The sentence
[14] It is clear from Judge Sinclair’s sentencing notes that Mr O’Callaghan was initially sentenced on the erroneous basis that he had been convicted at least twice previously of an offence against one of the statutory provisions described at s 56(4) of the LTA. On that basis Mr O’Callaghan was ordered to serve community work of 90 hours and ordered to serve supervision, and was “disqualified for the mandatory period of one year and one day”.
[15] However, in an addendum to the sentencing decision, the Judge recorded as follows:
[6] Mr O’Callaghan, this is an addendum to my sentencing decision. At the conclusion of sentencing you I was advised by the prosecutor that in fact the charge of excess breath alcohol should have been laid as a simpliciter charge, because the first offence I was referring to was in fact a driving with excess breath alcohol under 20 years. That has been amended by consent and I have confirmed your plea of guilty.
[7] This does not alter my sentence in terms of the community work and supervision, because I still take into account that previous excess breath alcohol and its level. However, it does alter the disqualification issue. You will no longer be subject to an indefinite disqualification. I disqualify you from midnight tonight for a period of eight months. That will effectively start on 16 January. Thank you.
Approach to appeal
[16] I must allow the appeal if there is an error in the sentence such that a separate sentence should be imposed. A sentence which is manifestly excessive is such an error.
[17] As counsel for both the appellant and the respondent have helpfully identified, s 13 of the Sentencing Act 2002 (“the Sentencing Act”) is of particular relevance to this appeal. Section 13 provides that:
13 Sentence of fine
If a court is lawfully entitled under this or any other enactment to impose a fine in addition to, or instead of, any other sentence, the court must regard a fine as the appropriate sentence for the particular offence unless—
(a)the court is satisfied that the purpose or purposes for which sentence is being imposed cannot be achieved by imposing a fine; or
(b)the court is satisfied that the application of any of the principles in section 8 to the particular case make a fine inappropriate; or
(c)any provision applicable to the particular offence in this or any other enactment provides a presumption in favour of imposing any other sentence or requires the court to impose any other sentence; or
(d)the court is satisfied that a fine, on its own or in addition to a sentence of reparation, would otherwise be clearly inadequate in the circumstances.
[18] The Judge does not appear to have considered s 13 of the Sentencing Act before she imposed a sentence of community service and supervision rather than a fine.
[19] In my view, the failure to consider and apply s 13 of the Sentencing Act is an error of law.7 The Judge was lawfully entitled to impose a fine. Pursuant to s 13, that is therefore the appropriate sentence unless one or more of the criteria in s 13(a) to (d) applies.
[20] I do not consider that any of the criteria in s 13(a) to (d) apply. I am satisfied that in all the circumstances a fine would have been sufficient to achieve the purposes for which the sentence is being imposed in this case. These purposes include the need to hold Mr O’Callaghan to account for his conduct;8 to denounce Mr O’Callaghan’s conduct;9 and to deter Mr O’Callaghan and the public generally from driving after consuming excessive alcohol.10
[21] I am also satisfied that the imposition of a fine is appropriate taking into account the principles of s 8 of the Sentencing Act. An appropriate fine will take into account the gravity11 and seriousness12 of Mr O’Callaghan’s offending. It will also take into account the desirability of consistency with sentences imposed on similar offenders.13
7 See also Murphy v Police [2014] NZHC 2835.
8 Sentencing Act 2002, s 7(1)(a).
9 Section 7(1)(e).
10 Section 7(1)(e).
11 Section 8(a).
12 Section 8(b).
13 Section 8(e).
[22] Section 56(3) of the LTA expressly provides for a fine; there is therefore no statutory presumption in favour of a different sentence, nor a requirement that the Court impose a different sentence.
[23] Having found that an error occurred, I approach the sentencing exercise afresh. I have considered similar cases, including those cited to me by counsel.14 I am satisfied that a fine of $1,000, together with disqualification from holding a driver licence for eight months, is an appropriate sentence in all the circumstances.
[24] In setting the level of the fine, I note that Mr O’Callaghan’s alcohol level of 530 micrograms of alcohol per litre of breath is at the low to moderate level of excess. No concerns about Mr O’Callaghan’s driving were raised in the summary of facts. Mr O’Callaghan’s previous convictions are, of course, aggravating factors. The District Court Judge took these into account when she added two months to the mandatory minimum period of six months during which Mr O’Callaghan is disqualified from driving. I agree that this was appropriate. It is also relevant that there are periods of over eight years and 20 years respectively between each of Mr O’Callaghan’s previous convictions and the current offence.
Result
[25] The appeal is allowed. Mr O’Callaghan’s sentence is quashed. I substitute a sentence of a fine of $1,000 and a period of disqualification from holding or obtaining a driver licence of eight months. The period of disqualification runs from midnight on 15 January 2021.
Brewer J
14 Park v Police [2017] NZHC 692; McCloy v Police [2014] NZHC 3129; Fredricsen v Police [2018] NZHC 2721; Clotworthy v Police HC Wanganui CRI-2003-483-13, 25 September 2003; Palmer v Police HC Auckland CRI-2009-404-262, 5 February 2010; Sharma v Police [2018] NZHC 2471; Flavell v Police [2019] NZHC 254.
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