Roberts v Police - [2022] NZHC 1439

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2022-409-41 [2022] NZHC 1439

BETWEEN
CHRISTOPHER STEVEN PETER ROBERTS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 8 June 2022

Appearances:

R J Burnside for Appellant S J Mallett for Respondent

Judgment:

17 June 2022

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 17 June 2022 at 2.15 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar
Date……………

ROBERTS v NEW ZEALAND POLICE [2022] NZHC 1439 [17 June 2022]

Introduction

[1] Mr Roberts was charged with driving with excess breath alcohol third or subsequent.1 He appeared before Judge Couch in the District Court on 28 February 2022 for sentencing. The Judge sentenced Mr Roberts to four months’ community detention and disqualified him from holding or obtaining a driver’s licence for one year and one month from 1 February that year.2 In doing so, the Judge declined Mr Roberts’ application under s 94 of the Land Transport Act 1998 (LTA), to have a community-based sentence imposed instead of disqualification. Mr Roberts appeals both aspects of this sentence.

Background

[2] On the evening of Sunday 25 July 2021, Mr Roberts was driving at excess speed near Methven, when he was stopped by police. His breath was found to contain 527 micrograms of alcohol per litre of breath. Mr Roberts was charged with driving with excess breath alcohol.

[3] On 6 November 2021 Mr Roberts was served a notice that his licence was suspended for excess demerit points, as the police had issued an infringement notice for the excess speeding on 25 July 2021. This resulted in 50 demerit points and a subsequent loss of licence for three months until 5 February 2022.

[4] On 28 February 2022 the sentencing took place and Mr Roberts’ application under s 94 LTA was declined. It is this sentencing decision which is appealed.

[5] On 2 March 2022 Mr Roberts drove while disqualified (third or subsequent). He was sentenced on 16 May 2022 to 60 hours of community work after a successful application under s 94.

1 Land Transport Act 1998, s 56(1) and 56(4).
2 Police v Roberts [2022] NZDC 4520.

District Court decision

[6] In sentencing Mr Roberts on 28 February 2022, the Judge noted this was Mr Roberts’ seventh alcohol driving conviction, with the previous convictions spanning the period from 1993 to 2010. It was considered by the Judge that this offending was aggravated by the fact Mr Roberts was also speeding when impaired. He also noted the offending “appears to have been further aggravated” by the fact Mr Roberts did not have a driver’s licence when the offending occurred. In light of these factors, the Judge concluded the gravity of the offending was serious and that he would be justified in taking a starting point of 10 months’ imprisonment. However, the Judge then said he did not intend to go down that path as he considered a less restrictive sentence…

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 Roberts v Police

Details

AGLC: Roberts v Police [2022] NZHC 1439
Case: [2022] NZHC 1439
Decision Date: 17 June 2022

CaseChat Overview and Summary

Roberts v Police is a case in which the appellant, Mr Christopher Steven Peter Roberts, appealed the sentencing decision of the District Court. Mr Roberts was convicted of driving with excess breath alcohol third or subsequent and was sentenced to four months’ community detention and disqualified from holding or obtaining a driver’s licence for one year and one month. Mr Roberts appealed both aspects of this sentence. The legal issues in this case revolved around the District Court Judge's decision to decline Mr Roberts' application under s 94 of the Land Transport Act 1998 (LTA) to have a community-based sentence imposed instead of disqualification. The High Court examined whether the District Court Judge erred in his decision and whether a different sentence should be imposed.

The High Court found that the District Court Judge did not disregard the content of Mr Roberts’ affidavit and considered the relevant circumstances of the case and the offender. The Court was satisfied that the Judge had exercised his discretion appropriately in refusing the s 94 option. In terms of public safety considerations, the Court found that the current conviction for driving with excess breath alcohol third or subsequent, and at excessive speed, was indicative of irresponsible driving, which the public should be protected from. However, the Court also considered it generally in the public interest that Mr Roberts resumes employment. The Court concluded that the Judge had regard to the relevant factors under s 94 of the LTA and exercised his discretion appropriately in refusing that option.

The Court also examined the community detention sentence and found that the sentence did not automatically require revision because circumstances subsequent to the sentencing decision made it more onerous. The Court considered that what Mr Roberts was really seeking, in practical terms, was to vary the sentence of community detention, or substitute it, in a way that would facilitate his continued employment. The Court deferred the recommencement of the balance of Mr Roberts’ community detention sentence to 1 August 2022, to allow him time to make appropriate arrangements with his employer to serve the balance of this sentence or, alternatively, to make an application under s 69I to the District Court to facilitate him maintaining his current employment.

In summary, the appeal was dismissed. The sentence imposed was not manifestly excessive; however, the Court deferred the recommencement of the balance of Mr Roberts’ community detention sentence to 1 August 2022 to assist in his rehabilitation.

Orders