Rota v Police - [2019] NZHC 2812

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2019-463-90

[2019] NZHC 2812

IN THE MATTER of an appeal against sentence

BETWEEN

DAVID ROTA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 31 October 2019

Counsel:

PT Birks for appellant

G Banuelos for respondent

Judgment:

31 October 2019

(ORAL) JUDGMENT OF FITZGERALD J

Solicitors: Gordon Pilditch, Rotorua To: P Birks, Rotorua

Rota v New Zealand Police [2019] NZHC 2812 [31 October 2019]

[1] Mr Rota pleaded guilty to one charge of driving with excess blood alcohol (third or subsequent).1 He was sentenced to 90 hours of community work and was disqualified from driving for one year and one day.2 He now appeals this sentence.

Offending

[2] Mr Rota was stopped at approximately 12.30 am on 29 August 2019 for compulsory alcohol and licence checks. Breath testing procedures were commenced, and a subsequent evidential breath test gave a reading of 557 micrograms of alcohol per litre of breath, over the statutory maximum of 400 micrograms as set out in s 56(1) of the Land Transport Act.

[3] The summary of facts records that Mr Rota told Police he was driving a family member back to his house to stop an argument.

District Court decision

[4] Judge Hollister-Jones described the offending, and noted it had apparently occurred because Mr Rota was driving his friend’s son and grandson because he was concerned about some tension where they had been. The Judge recorded this was Mr Rota’s fifth excess breath alcohol incident but acknowledged he had not offended in this way for 18 years. He described Mr Rota’s breath alcohol level as “in the medium range”.3

[5] The Judge took a starting point of 120 hours community work, and reduced it by 25 per cent, or 30 hours, for a guilty plea. Accordingly, Mr Rota was sentenced to 90 hours community work and disqualified for one year and one day.

[6] Mr Rota appeared in person at the sentencing hearing, without the assistance of legal counsel.

1 Land Transport Act 1998, s 56(1), s 56(4). Maximum penalty two years’ imprisonment or $6,000 fine, and the Court must order the person to be disqualified from driving for more than one year.
2 Police v Rota [2019] NZDC 20048.
3 At [1].

Criminal history

[7] Mr Rota is 69 years of age. He has over 40 previous convictions, but almost all are historic. His only conviction since 2001 is for assault on a Police officer in 2010, for which he received a $300 fine, so it can be inferred it was minor offending. Indeed, given Mr Rota has only ever received sentences of fines, suspended sentences, and non-residential periodic detention, it can be inferred that all his previous offences have been relatively minor.

[8] As the District Court Judge acknowledged, this is Mr Rota’s fifth conviction for driving with excess breath alcohol, but he has not offended in this manner since 2001.

Submissions for Mr Rota

[9] Mr…

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 Rota v Police

Details

AGLC: Rota v Police [2019] NZHC 2812
Case: [2019] NZHC 2812
Decision Date: 31 October 2019

CaseChat Overview and Summary

Mr Rota appeals his sentence of 90 hours community work and disqualification from driving for one year and one day, imposed by the District Court following his guilty plea to driving with excess blood alcohol. Mr Rota argues that the District Court Judge erred by not giving sufficient weight to his submissions at the sentencing hearing. Mr Rota submits that he only drove that night to remove a young person from a fight between family friends, and as such, the circumstances were exceptional and warranted a lesser period of disqualification from driving. The Police respond that there was no error in the District Court's sentencing decision. They submit that Mr Rota's actions do not constitute special circumstances warranting a lesser sentence or a lesser period of disqualification.

In considering Mr Rota's appeal, the Court found that there was no clear error by the District Court in the way it considered Mr Rota's submissions at the sentencing hearing. The Court also found that the circumstances of Mr Rota's offending did not constitute special circumstances warranting a lesser sentence or a lesser period of disqualification. The Court noted that the circumstances of Mr Rota's offending did not involve imminent or life-threatening danger, and that there were other alternatives available to him such as calling the Police or leaving the property and calling a taxi. The Court dismissed the appeal, finding that the sentence imposed by the District Court was not manifestly excessive or wrong in principle.

In summary, the Court dismissed Mr Rota's appeal against his sentence for driving with excess blood alcohol. The Court found that the District Court had not erred in the way it considered Mr Rota's submissions at the sentencing hearing, and that the circumstances of the offending did not constitute special circumstances warranting a lesser sentence or a lesser period of disqualification. The Court held that there were strong policy reasons for taking a strict approach to excess breath alcohol offending, and accordingly, a high threshold for establishing special reasons.

Orders