O'Sullivan v Police - [2012] NZHC 3421

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2012-488-000064 [2012] NZHC 3421

BETWEEN PAUL CLIFFORD O'SULLIVAN Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 14 December 2012

Counsel: Mr P O'Sullivan, Appellant in person
D B Stevens for Respondent

Judgment: 14 December 2012

(ORAL) JUDGMENT OF HEATH J

Solicitors:
Crown Solicitor, PO Box 146, Whangarei
Copy to:
Appellant in person

O'SULLIVAN V NEW ZEALAND POLICE HC WHA CRI 2012-488-000064 [14 December 2012]

[1] Mr O’Sullivan appeals against a sentence imposed by Judge Davis in the District Court at Kaikohe on 9 October 2012. He was being sentenced on one charge of driving with an excess breath alcohol concentration on a third or subsequent occasion and one of driving whilst forbidden. The breath alcohol level disclosed by the testing was 657mcgs of alcohol per litre of breath as opposed to the legal limit of
400mcgs of alcohol per litre of breath.

[2] Mr O’Sullivan pleaded guilty at an early stage. The basis on which the guilty

plea was entered is set out in the summary of facts.

[3] On 28 August 2008, Mr O’Sullivan was stopped by the Police while driving.

Inquiries revealed he did not hold a current and appropriate licence.

[4] On 27 April 2012, at about 7.35pm, Mr O’Sullivan was stopped driving a Suzuki motor vehicle on State Highway 10, Kaeo. He was stopped at a roadside checkpoint. When processed, the breath alcohol level to which I have referred was found.

[5] Judge Davis noted that on 31 October 2008, Mr O’Sullivan had been convicted of driving with an excess breath alcohol level of 794mcgs of alcohol per litre of breath and on 10 March 2009, was convicted on the same charge with a reading of 777mcgs of alcohol per litre of breath.

[6] Mr O’Sullivan is aged 64 years. The offending has all occurred relatively late in life. I am satisfied, without going into detail, that the offending has arisen out of personal difficulties that have led to certain health problems. Mr O’Sullivan who has presented his case before me today with moderation and courtesy, recognises that his actions were wrong and that some sanction is required.

[7] Judge Davis imposed a period of community detention for six months. Mr

O’Sullivan was to be subject to a curfew for seven days per week from 5pm until

6am. He also made an order that Mr O’Sullivan undertake supervision for a period of

one year. Mr O’Sullivan was disqualified from holding or obtaining a driver licence

indefinitely. Another order was that Mr O’Sullivan was prohibited from having an

interest in a motor vehicle for 12 months.

[8] Mr O’Sullivan has challenged three aspects of the Judge’s sentence. The first concerns the sentence of disqualification from holding or obtaining a driver licence. Mr O’Sullivan asks that it be for a finite term. He refers to the problems of living in a small community and the difficulties in travelling elsewhere without a car.

[9] The Judge, however, was required…

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 3421
Decision Date: 14 December 2012

CaseChat Overview and Summary

In the case of O'Sullivan v Police, the appellant, Paul Clifford O'Sullivan, appealed against a sentence imposed by Judge Davis in the District Court at Kaikohe on 9 October 2012. The appellant was sentenced on charges of driving with an excess breath alcohol concentration on a third or subsequent occasion and driving while forbidden. The breath alcohol level was recorded at 657 micrograms of alcohol per litre of breath, exceeding the legal limit of 400 micrograms of alcohol per litre of breath. The central issues in this appeal were the indefinite disqualification from holding or obtaining a driver's licence, the need for supervision, and the term of community detention imposed by Judge Davis.

The court found that the indefinite disqualification from holding or obtaining a driver's licence was mandated by Section 65(2) of the Land Transport Act 1998, but it was also necessary to direct the appellant to attend an assessment centre. This oversight was significant because only with a report from the assessment centre could the Agency remove the disqualification order. Moreover, the court determined that the term of community detention was excessive and should be reduced to one month. The court reasoned that the appellant's consumption of three glasses of port and one stubbie of beer, rather than a full bottle of port, explained his perceived fitness to drive and the breath alcohol concentration level. The court concluded that a one-month term of community detention would adequately serve the purposes of denunciation and deterrence.

The appeal was allowed, and the orders made by Judge Davis regarding supervision and community detention were set aside. The court substituted these orders with directions for the appellant to attend an assessment centre and imposed a one-month term of community detention with a curfew at his home address. The indefinite disqualification from holding or obtaining a driver's licence and the prohibition on having an interest in a motor vehicle for 12 months remained unchanged.

Orders