P v Police HC Ak Cri-2009-404-262

[2010] NZHC 380

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2009-404-000262

P

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         3 February 2010

Appearances: F Hogan for Appellant

S Duncan for Respondent

Judgment:      5 February 2010 at 2:00 pm

RESERVED JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 5 February 2010 at 2:00 pm

pursuant to R 11.5 of the High Court Rules.

Registrar / Deputy Registrar

Date...................................

Solicitors:           Meredith Connell, P O Box 2213, Auckland

Fax: [phone] – S Duncan

Counsel:             F P Hogan, Dyke Road, R D 1, Papakura

Fax: [phone]

P V NZ POLICE HC AK CRI-2009-404-000262  5 February 2010

[1]      Following a defended hearing before Wade DCJ in the District Court at Manukau Mr P   was convicted on a charge of driving a motor vehicle while the proportion of alcohol in his blood exceeded 100 milligrams of alcohol per 100 millilitres of blood,.   It was Mr P  ’s second such conviction and he was sentenced to perform 120 hours of community work in addition to a period of disqualification of 12 months.  Mr P   appeals the community work sentence on the  ground  that  it  is  manifestly  excessive  and  that  a  fine  was  the  appropriate sentence.

[2]      The Judge’s rationale for imposing the sentence of community work was that a fine would not have the necessary deterrent effect:

[3]       You have plainly not learnt your lesson about the dangers of drink driving and I take the view that in those circumstances a fine is not appropriate because you can simply pull out your chequebook, write out a cheque for the fine and forget all about it.   I think it needs to be brought home to you that this is a serious offence and for that reason you will be sentenced to perform 120 hours of community work.

[3]      Under s 13(1)(a) Sentencing Act 2002 where the Court may impose a fine in addition to or instead of any other sentence it must nevertheless regard a fine as the appropriate sentence unless satisfied that the purpose or purposes for which sentence is being imposed cannot be achieved by imposing a fine.  There was no reference to s 13 in the Judge’s sentencing notes but Ms Duncan submitted that it is apparent from that the Judge did take into account the considerations under s 13(1)(a) namely Mr P  ’s financial circumstances, and determined that a fine was not appropriate. She submitted that this conclusion was available.

[4]      Mr Hogan, for Mr P  , produced evidence of Mr P  ’s chronic health condition  and  his  employment  commitments  to  show  that  a  community  work sentence is inappropriate. This evidence was not before the sentencing Judge. It shows that Mr P   has fulltime work commitments as chief executive officer of the Wakatu Incorporation, a Mäori trust. These work commitments and associated social responsibilities involve regular travel and occupy virtually his entire time. Further, Mr P   suffers from a fused vertebrae which makes standing for more than 10 minutes or walking for more than 15 minutes very difficult. Ms Duncan, for the Crown, acknowledged the force of the new evidence but submitted that despite his work commitments and his medical condition it is likely that Mr P   could

arrange time to perform a community work sentence.  In particular, she pointed out that his medical condition does not seem to interfere with his extensive travel commitments.

[5]     A review of recent similar cases indicates that a fine together with disqualification is the usual sentence imposed on second drink-driving offences.1

Whilst  acknowledging  that  the  factual  circumstances  surrounding  this  type  of offence vary widely, these cases show a discernable trend towards finding that a fine will generally be the appropriate sentence (in addition, of course, to disqualification).

[6]     Although the Judge clearly formed a view about Mr P  ’s financial circumstances it appears that he either did not know or did not take account of the nature of his employment. Nor, apart from the fact that Mr P   appeared able to pay a fine, was there any reason given for concluding that a fine would not have the necessary deterrent effect. Given that the Judge did not make any reference to Mr P  ’s employment commitments I cannot be sure that the Judge did consider s 13 or the cases to which I have referred. As a result, I approach the matter afresh.

[7]      Although it seems unlikely that any sentence of community work will prove more onerous in a physical sense than Mr P  ’s current work commitments, it is clear that his employment commitments are very significant and I have no doubt that it  would  be  difficult  to  discharge  those  commitments  and  serve  a  community sentence at the same time. Although it is evident from the fact that this is Mr P  ’s second offence that he has not “learned his lesson” about drinking and driving that fact alone does not make a fine inappropriate. Looking at all the circumstances  I conclude  that  that  a  fine  is  appropriate.    I therefore  quash  the sentence of community work and instead impose a fine of $2,000. There was no

appeal in respect of the period of disqualification and that remains untouched.

P Courtney J

1 Wright v Police HC CHCH A104/02 4 October 2005 Panckhurst J; Burke v Police HC CHCH CRI-
2007-409-000165 20 September 2007 Panckhurst J; Jones v Police HC AK CRI-2007-404-000325
Stevens J; Martin v Police HC AK CRI-2008-404-000044 6 May 2008 Rodney Hansen J