Park v Police - [2017] NZHC 692

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2017-404-053 [2017] NZHC 692

BETWEEN
YO HAN PARK

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 10 April 2017

Appearances:

B Meyer for the Appellant
M Mortimer for the Respondent

Judgment:

10 April 2017

ORAL JUDGMENT OF MUIR J

Counsel/Solicitors:
B Meyer, High Street Law, Auckland
M Mortimer, Meredith Connell, Auckland

PARK v NEW ZEALAND POLICE [2017] NZHC 692 [10 April 2017]

Summary

[1] On 24 May 2016, the appellant, Mr Park, was sentenced after pleading guilty to one charge of driving with excess breath alcohol.1 He now appeals against that sentence, in particular the combination of a finite 13 month period of disqualification with an order authorising him to apply for an alcohol interlock license. The Police accept that the appeal should be allowed.

Background

[2] On 23 April 2016, a police officer observed Mr Park driving at excess speed on Taharoto Road in Takapuna, Auckland. The police officer stopped Mr Park and carried out breath testing procedures. Mr Park’s breath alcohol level was found to contain 1089 micrograms of alcohol per litre of breath (the statutory limit is 400
micrograms of alcohol per litre of breath).2 The police officer then suspended Mr

Park’s driver’s license for a period of 28 days.3

[3] Mr Park was subsequently charged with and pleaded guilty to one charge of driving with excess breath alcohol.4

[4] On 24 May 2016, Mr Park appeared before Judge Maude in the District Court for sentencing. The Judge commented that Mr Park’s alcohol reading was high, which inevitably created a high risk to other members of the public. He also observed that this was Mr Park’s second conviction for such an offence, having been convicted of driving with excess blood alcohol in 2011.5

[5] The Judge considered that a fine was not appropriate, given it was Mr Park’s
second offence and it was necessary to hold him accountable for his actions. His sentence comprised:

1      Police v Park [2016] NZDC 26839.
2      Land Transport Act 1998, s 56(1).
3      Under the Land Transport Act 1998, s 95.
4      Land Transport Act, s 56(1).
5      Note that Mr Park’s Criminal and Traffic History indicates that he was in fact convicted in
February 2012, although the offending happened in November 2011.

(2) indefinite disqualification from holding a license;

(3)disqualification from holding a driver’s license for a mandatory finite period of 13 months;

(4)an order authorising Mr Park, at the end of his disqualification period, to apply for a zero alcohol license that has effect for three years from the date issued (failure to apply meant his license would be treated as suspended); and

(5) authorisation to apply for an interlock license.

Submissions on appeal

[6] For Mr Park Mr Meyer argues that Judge Maude erred in the particular combination of orders that he made. Specifically, he submits that a 13-month period of disqualification under s 56 and orders relating to an interlock license under s 65A are alternatives and cannot be…

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 Park v Police

Details

AGLC: Park v Police [2017] NZHC 692
Case: [2017] NZHC 692
Decision Date: 10 April 2017

CaseChat Overview and Summary

Park v Police [2017] NZHC 692 involved an appeal by Mr Park against his sentence, which included a 13-month disqualification period and an order authorizing him to apply for an alcohol interlock license. The legal issue was whether these two orders could be imposed together. The High Court found that they could not, as they were alternatives. The Court noted that Mr Park's second conviction for driving with excess breath alcohol warranted a mandatory minimum disqualification period of six months under the Land Transport Act 1998, s 56(3)(b). However, the imposition of an alcohol interlock license under s 65A meant that Mr Park's indefinite disqualification under s 65 should have ended. The Court concluded that the District Court Judge erred in combining the two orders, and the appeal was allowed. The Court then re-sentenced Mr Park, reducing the finite disqualification period to one year and one day, deleting the authorization to apply for an alcohol interlock license, and confirming the rest of the District Court's sentence. The Court's decision emphasized the need for clearer and more coherent drafting of the relevant provisions of the Land Transport Act.

Orders