Sala v Police - [2012] NZHC 421

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2012-404-000033 [2012] NZHC 421

JONATHAN DAVID SALA
Appellant
v

NEW ZEALAND POLICE
Respondent

Hearing: 12 March 2012

Counsel: Appellant in Person
JB Hamlin for the Respondent

Judgment: 12 March 2012

[RESERVED] JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie on 14 March 2012 at 12 noon
Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Distribution:
JD Sala: 2505B State Highway 10, Waipapa, Northland. JB Hamlin: john.hamlin@meredithconnell.co.nz

SALA V POLICE HC AK CRI 2012-404-000033 [12 March 2012]

[1] The appellant, Mr Sala, appeals against a sentence of six months’ community detention, supervision for one year, and disqualification for one year and one day imposed by Judge A M Taumaunu in the District Court at Waitakere, following a guilty plea entered on one charge of driving with excess blood alcohol (third or subsequent charge) pursuant to s 56(2) of the Land Transport Act 1998. Mr Sala was also ordered to pay an analyst’s fee of $93 and medical expenses of $80.

[2] It was Mr Sala’s seventh drink driving conviction. The maximum sentence for a third or subsequent offence is two years’ imprisonment, or a fine of $6,000, and the Court must disqualify the person from driving for more than one year.[1]

[1] Land Transport Act 1998, s 56(4).

[3] Mr Sala’s notice of appeal is dated 30 February 2012. It asserted that the sentence was based on a faulty pre-sentence report containing major inaccuracies. It is also asserted that the sentence of community detention is unworkable, due to Mr Sala’s childcare responsibilities and the fact that he is moving elsewhere.

District Court Decision

[4] Judge Taumaunu started by reciting the relevant facts. He noted that Mr Sala’s blood alcohol was 111 milligrams of alcohol per 100 millilitres of blood, and the legal limit is 80. He observed that Mr Sala was only “slightly over” the threshold. He went on, however, to observe that Mr Sala had made the same mistake on a number of previous occasions. He warned Mr Sala that he was very much in danger of going to prison if he continued to drink and drive.

[5] The Judge referred to the applicable principles and purposes of sentencing, to the pre-sentence report, and to the recommendations made in that report. He also considered a letter sent to him by Mr Sala. He noted that Mr Sala has four previous breaches of community work orders. He noted that further community work was not recommended, and that in the circumstances, it was appropriate to adopt the more punitive sanction of community detention coupled with supervision. He imposed
curfew hours as follows:

(a) 8.00 pm — 5.00 am, Wednesday and Thursdays, and

(b) 8.00 pm Friday — 5.00 am Monday.

Submissions

[6] Mr Sala submitted that there are significant errors in the pre-sentence report and that there were various matters which Judge Taumaunu was not aware of. He said that as a result, the 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 Sala v Police

Details

AGLC: Sala v Police [2012] NZHC 421
Case: [2012] NZHC 421
Decision Date: 12 March 2012

CaseChat Overview and Summary

In the case of Sala v Police, the appellant, Mr Sala, appealed against a sentence imposed by Judge Taumaunu in the District Court at Waitakere, following a guilty plea for driving with excess blood alcohol, which was his seventh such conviction. The District Court imposed a sentence of six months’ community detention, supervision for one year, and disqualification for one year and one day, along with an order to pay an analyst’s fee and medical expenses. Mr Sala’s notice of appeal was dated 30 February 2012 and asserted that the sentence was based on a faulty pre-sentence report containing major inaccuracies and was unworkable due to his childcare responsibilities and relocation.

The legal issues before the court were whether the sentence imposed by the District Court was appropriate and whether the pre-sentence report contained substantial inaccuracies that warranted a variation in the sentence. The court had to consider the relevant sentencing principles and purposes, the accuracy of the pre-sentence report, and whether the sentence imposed was appropriate given the circumstances of the case. Mr Sala argued that the pre-sentence report had significant errors, while the Crown accepted that there was one significant error but argued that the sentence imposed was within the range of appropriate sentences for such offending.

The court granted an adjournment to allow the parties to discuss potential amendments to the curfew hours, which were identified as causing difficulties for Mr Sala. After discussions, the court varied the curfew hours to accommodate Mr Sala’s parental responsibilities. The court found that the pre-sentence report contained substantial inaccuracies, particularly regarding Mr Sala’s living arrangements and childcare responsibilities, which were not before the District Court. The court varied the curfew hours and directed that the sentence, as varied, is to resume on a future date pending assessment of Mr Sala’s new address for electronic monitoring. The court also warned Mr Sala that a sentence of imprisonment is common for repeat drink driving offences and that the District Court’s sentence was not excessive.

Orders