R v Fair - [2007] NZCA 282

IN THE COURT OF APPEAL OF NEW ZEALAND
CA147/07
[2007] NZCA 282
THE QUEEN
v
BERTRAM CHARLES FAIR
Hearing:11 June 2007

Court:Ellen France, Ronald Young and Keane JJ
Appearances: N M Dutch for Appellant

M F Laracy for Crown

Judgment:6 July 2007 at 3 pm

JUDGMENT OF THE COURT

AAn extension of time for filing the appeal is granted.
BThe appeal is allowed.
CThe sentence of two years imprisonment, imposed concurrently for the two offences, is reduced in each case to 18 months imprisonment.

____________________________________________________________________
REASONS OF THE COURT
(Given by Keane J)
[1]       On 29 June 2006 Bertram Fair, aged 65, an indefinitely disqualified chronic alcoholic, was apprehended at the seat of his car in a central Tauranga carpark. He had a can of beer in his hand, as had his two passengers in theirs. He was highly intoxicated. His evidential breath test result was consistent. It was 967 micrograms of alcohol per litre of breath. This was his fourteenth such offence and he had twelve previous convictions for driving while disqualified.
[2]       At trial the issue was whether Mr Fair had driven his car. The constable who apprehended him had seen the car come to a halt in the carpark. In question was whether Mr Fair and a passenger had changed seats. Mr Fair elected not to give evidence but called a friend to confirm that the friend had driven him into Tauranga from Welcome Bay, where he was then staying, and parked his car in the carpark.
[3]       Mr Fair’s friend proved not to assist him. In answer to the trial Judge, Judge Ingram, the friend confirmed that he had parked the car in the carpark before 3pm. He had returned later to find it gone. The constable saw the car return to the carpark towards 6.30pm. She was not able to say for how long beforehand Mr Fair had been driving his car or how far. The Crown’s case, which the jury accepted, was that Mr Fair was clearly the driver for the short time the constable had his car in view.
[4]       In sentencing Mr Fair to two years imprisonment for the excess breath alcohol offence, the maximum sentence able to be imposed, the Judge saw that offence as “within the most serious of cases for which that penalty is prescribed”: s 8(c) Sentencing Act 2002. The Judge considered whether to impose a cumulative term for Mr Fair’s other offence, driving while disqualified. He elected to impose a concurrent two year term. On this appeal Mr Fair contends that this sentence is manifestly excessive.
[5]       Mr Fair’s offending was not, he contends, the worst of its kind. He had not committed any excess breath alcohol offence for seven years and the Judge failed to take into account that he was seen only to drive for a short distance. The Judge failed also to allow for his state of health and the difficulty that would pose for him in serving any sentence of imprisonment let alone…

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 R v Fair

Details

AGLC: R v Fair [2007] NZCA 282
Case: [2007] NZCA 282
Decision Date: 6 July 2007

CaseChat Overview and Summary

In this case, the appellant, Bertram Charles Fair, was convicted and sentenced for driving with an excess breath alcohol level and driving while disqualified. The appellant appealed against the sentence imposed by the trial Judge, arguing that it was manifestly excessive. The Court of Appeal of New Zealand heard the appeal and found that the sentence imposed was indeed excessive and granted an extension of time for filing the appeal. The appeal was allowed, and the sentence of two years imprisonment was reduced to 18 months imprisonment for each offence.

The legal issues that the court was required to decide were whether the sentence imposed was manifestly excessive and whether the trial Judge had taken into account all relevant factors in sentencing. The court considered the nature of the offence, the appellant's criminal history, and his state of health. The court also considered whether the sentence imposed was appropriate in light of the appellant's vulnerability to alcohol and his fragile state of health.

The court's reasoning was that the sentence imposed was excessive because the trial Judge did not take into account all relevant factors in sentencing. The court found that the appellant's two offences, while serious, did not fall within the most serious category, and that the trial Judge had not given sufficient weight to the fact that the appellant had not driven with an excess breath alcohol level for seven years. The court also found that the trial Judge had not given sufficient weight to the appellant's state of health, which made imprisonment more difficult for him than for others. The court concluded that a reduction of two months was appropriate.

The final orders of the court were that the appellant's two offences, especially the excess breath alcohol offence, called for a significant sentence of imprisonment. However, the maximum concurrent penalties imposed could not be supported. The sentence of two years imprisonment was reduced to 18 months imprisonment for each offence concurrently. The appellant will be sentenced instead for each offence concurrently to 18 months imprisonment.

Orders