O'Hara v Police - [2012] NZHC 1263

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2012-419-08

CRI-2012-419-10 [2012] NZHC 1263

BETWEEN TODD O'HARA Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 7 June 2012

Counsel: MBJ Curran for Appellant
SN Cameron for Respondent

Judgment: 7 June 2012

JUDGMENT OF BREWER J

SOLICITORS/COUNSEL
Mike Curran (Hamilton) for Appellant
Almao Douch (Hamilton) for Respondent

O'HARA V POLICE HC HAM CRI-2012-419-08 [7 June 2012]

Introduction

[1] By notice of appeal dated 13 March 2012, the appellant appeals his sentence of 12 months’ imprisonment handed down against him in the District Court at Thames on 28 February 2012 by Judge MLSF Burnett.

[2] This was a re-sentence. The appellant had, on 10 May 2011 in the District Court at North Shore, been sentenced to five months’ community detention and nine months’ supervision on one charge of driving with excess breath alcohol (third or subsequent offence). In fact, it was his fifth conviction for this offence.

[3] However, the District Court Judge also had to sentence the appellant on a number of other charges. There were two charges of breach of community detention and three charges of breach of supervision. These five charges related to the original sentence for driving with excess breath alcohol.

[4] Finally, the District Court Judge had to sentence the appellant on one charge of driving while disqualified. The date concerned was 9 February 2012.

[5] The overall sentence of 12 months’ imprisonment was made up in this way:

(a) Driving with excess breath alcohol (third or subsequent offence) –

eight months’ imprisonment;

(b)On each of the charges of breach of community detention and breach of supervision – three months’ imprisonment concurrent with each other but cumulative as to three months (in total) on the eight months imposed for the driving with excess breath alcohol charge;

(c) Driving while disqualified – one months’ imprisonment cumulative

upon the other sentences.

[6] Before coming to the submissions of counsel, I note that the appellant has a very lengthy criminal history. Of direct relevance are his convictions for driving with excess breath alcohol:

Date Sentence
1995Disqualified from driving for six months; Fine of $1,000
1996Disqualified from driving for nine months; Fine of $1,250

1998 Disqualified from driving for eight months;
One months’ imprisonment (concurrent with two
other minor charges)

2004 Disqualified from driving for one year;
Six months’ imprisonment (denied leave to apply for
home detention)

The term of imprisonment was concurrent with identical sentences for unlawfully taking a motor vehicle and failing to answer District Court bail

[7]      The dates for breaching the community based sentences are: (a)        Breach of community detention – 21 June 2011
(b)      Breach of community detention – 22 June 2011 (c)     Breach of supervision – 30 June 2011
(d)      Breach of supervision – 29 July 2011 (e)         Breach of supervision – 4 August 2011

Appellant’s submissions

[8] The first ground of appeal is that the District Court Judge, in taking a starting point of 12 months’ imprisonment for the driving with excess breath alcohol charge, failed…

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.

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Details

Case: [2012] NZHC 1263
Decision Date: 7 June 2012

CaseChat Overview and Summary

Todd O'Hara appealed his sentence of 12 months' imprisonment, imposed by the District Court at Thames, for various charges including driving with excess breath alcohol, breaches of community detention and supervision, and driving while disqualified. The appellant had previously been sentenced to five months' community detention and nine months' supervision for the driving offence. However, due to multiple breaches of the community-based sentence, the District Court re-sentenced him to 12 months' imprisonment. The appeal focused on whether the re-sentence was excessive and whether the District Court Judge properly considered the principle of totality and the original sentence when imposing the re-sentence.

The High Court found that while the District Court Judge was entitled to consider the breaches separately, she should have applied the principle of totality and taken into account the original sentence of community detention and supervision. The Court determined that the starting point for the driving offence should have been lower, given the original sentence, and reduced the sentence to six months' imprisonment. The Court found that the cumulative sentence for the breaches was appropriate, and the sentence for driving while disqualified was also justified. The Court concluded that the overall sentence of 12 months' imprisonment was excessive and substituted a sentence of 10 months' imprisonment.

The final orders of the Court were to allow the appeal in respect of the charge of driving with excess breath alcohol (third or subsequent offence), to quash the sentence of eight months' imprisonment, and to substitute a sentence of six months' imprisonment. The remaining sentences were to be served cumulatively as to three months plus one month on the substituted sentence of six months' imprisonment, resulting in a total period of imprisonment of 10 months.

Orders