Police v Noblett - [2024] NZHC 2195

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2024-485-22

[2024] NZHC 2195

BETWEEN
NEW ZEALAND POLICE

Appellant

AND

MARK RICHARD NOBLETT

Respondent

Hearing: 23 July 2024

Counsel:

M J R Blaschke for the Appellant S M Barclay for the Respondent

Judgment:

6 August 2024

JUDGMENT OF GWYN J

Introduction

[1] This is an appeal by the New Zealand Police against a decision of Judge Nicholls in the Porirua District Court on the ground that the sentence given to Mark Noblett for driving with excess breath alcohol, third or subsequent,1 was manifestly inadequate.

[2] This appeal is one of four filed by the Crown on behalf of the Police raising the same issue. The defendants in the appeals were sentenced for driving with excess breath or blood alcohol third or subsequent under s 56(1) or (2) and (4) of the Land Transport Act 1998. This offence has a mandatory period of disqualification of at least one year, but in each case the Court found “special reasons” to depart from that mandatory disqualification period and imposed disqualification periods of six months

1 Land Transport Act 1998, s 56(1) and (4). The maximum penalty is two years’ imprisonment or a fine not exceeding $6,000 and the court must disqualify the person from holding or obtaining a driver licence for more than one year unless there are special circumstances relating to the offence.

NEW ZEALAND POLICE v NOBLETT [2024] NZHC 2195 [6 August 2024]

under s 81 of the Land Transport Act. The other three decisions2 were made in the Christchurch District Court. The Christchurch appeals were heard together by Harland J on 19 and 26 June 2024. The Court’s decision is reserved.

Background

The offending

[3] On 7 November 2023 at approximately 4.30 pm Mr Noblett was breath tested by the Police in Waikanae. His reading revealed 485 micrograms of alcohol per litre of breath, almost twice the limit.3 He told Police he had consumed four beers.

[4] In an affidavit filed prior to sentencing, Mr Noblett said that he had been at the pub on the night of the Melbourne Cup for one hour talking to a friend and “did not really think about how I would be affected by what I drank.” He also claimed he left “before the races started and the really heavy drinking began”. He says he did not realise he was over the limit until he was breath tested and he was “very disappointed” to be back before the courts because he had changed his behaviour since his previous conviction for drink-driving almost 20 years prior.

Criminal history

[5] Mr Noblett has an extensive criminal history, principally for drink-driving offences. His first conviction for driving with excess blood alcohol was entered in 1984. He has six total convictions for drink-driving including one as an unlicensed driver.

[6] His other convictions include failure to accompany, resisting police, common assault, driving while disqualified, male assaults female and offensive behaviour.…

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 Police v Noblett

Details

AGLC: Police v Noblett [2024] NZHC 2195
Case: [2024] NZHC 2195
Decision Date: 6 August 2024

CaseChat Overview and Summary

This appeal by the New Zealand Police against a decision of Judge Nicholls in the Porirua District Court concerns the sentencing of Mark Noblett for driving with excess breath alcohol, third or subsequent. The Police argue that the six-month disqualification period imposed on Mr Noblett was manifestly inadequate. The legal issue before the Court was whether the time elapsed between Mr Noblett's previous qualifying drink-driving offences and his current charge could constitute special reasons relating to the offence under s 81 of the Land Transport Act. The Court found that while the gap between offences could constitute special reasons at law, the particular circumstances did not establish such reasons on the facts. The appeal was allowed, and the sentence of six months' disqualification was set aside and replaced with a disqualification period of one year and one day.

Orders