Rao v Police - [2014] NZHC 3348

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-000264 [2014] NZHC 3348

IN THE MATTER of the Land Transport Act 1998

BETWEEN

KARTIK RAO Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 17 November 2014

Appearances:

G Haydn for the Appellant
K Eastwood for the Respondent

Judgment:

19 December 2014

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Friday, 19 December 2014 at 11.00 am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Counsel: G Haydn, Auckland

Solicitors: Crown Solicitor, Auckland

KARTIK RAO v NEW ZEALAND POLICE [2014] NZHC 3348 [19 December 2014]

[1] On 11 June 2014 in the Auckland District Court, Kartik Rao pleaded guilty to two charges, one of refusing to permit a blood specimen to be taken, having been requested to do so by a medical practitioner, and one of careless driving.

[2] On 8 August 2014, he was convicted of refusing to permit a blood specimen to be taken and sentenced to 100 hours community work together with supervision for nine months on conditions which included that he undertake such counselling and/or treatment or courses for alcohol abuse as the probation officer directed. He was also disqualified indefinitely from holding or obtaining a driver’s licence. On the charge of careless driving, he was convicted and disqualified from holding or obtaining a driver’s licence from 12 months, which was to run concurrently with the indefinite disqualification.

[3] He now appeals against sentence on the basis that the District Court Judge wrongly refused his application for authority to apply for an alcohol interlock licence after three months disqualification as an alternative to indefinite disqualification.

Factual background

[4] Mr Rao is now 24 years old. On 31 July 2009 he was convicted of driving with a breath alcohol reading of 218 micrograms of alcohol per litre of breath, which exceeded the youth level of 150 micrograms of alcohol per litre of breath. The youth level applied to persons under 20 years. Mr Rao was 18 at the time of the offending. He was fined $350 with Court costs of $130 and disqualified from holding or obtaining driver’s licence for three months. He was also convicted of careless driving.

[5] On 23 February 2011, Mr Rao was convicted of driving with excess blood alcohol. He had a level of 131 milligrams of alcohol per 100 millilitres of blood. The adult level was 80 milligrams of alcohol per 100 millilitres of blood. Mr Rao was 20 at the time of the offending. On that occasion he was fined $800 with analysis fees of $93, Court costs of $132.89 and medical expenses of $80. He was also disqualified from holding or obtaining a driver’s licence for seven months. He was again also convicted of careless driving.

[6] At about 1.40 a.m. on 21 May 2014, when he was 23 years old, Mr Rao was driving a motor vehicle on Westminster Road in New Windsor, Auckland. He lost control of his vehicle and veered right, crashing…

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 Rao v Police

Details

AGLC: Rao v Police [2014] NZHC 3348
Case: [2014] NZHC 3348
Decision Date: 19 December 2014

CaseChat Overview and Summary

Kartik Rao appeals against his sentence for two drink-driving related offences. He was convicted of refusing to permit a blood specimen to be taken and of careless driving. He was sentenced to 100 hours community work together with supervision for nine months and was disqualified indefinitely from holding or obtaining a driver’s licence. On the charge of careless driving, he was disqualified from holding or obtaining a driver’s licence for 12 months, which was to run concurrently with the indefinite disqualification. Mr Rao appeals against the sentence on the basis that the District Court Judge wrongly refused his application for authority to apply for an alcohol interlock licence after three months disqualification as an alternative to indefinite disqualification. The alcohol interlock device regime is set out in s 65A of the Land Transport Act 1998. It provides for the imposition of a sentence of three months disqualification and an order authorising a person to apply for an alcohol interlock licence at the end of a mandatory three month disqualification period. The discretion whether or not to apply s 65A is to be exercised in accordance with the purposes and principles of the Sentencing Act. The appeal is dismissed. The sentences imposed by Judge Gittos are confirmed.

Orders