IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2018-463-88
[2018] NZHC 3264
BETWEEN DAVID DON TAKAMORE
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 29 November 2018 Appearances:
C A Gentleman for Appellant E F Collis for Respondent
Judgment:
12 December 2018
JUDGMENT OF PAUL DAVISON J
This judgment was delivered by me on 12 December 2018 at 10:30 am Pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors:
Gowing & Co. Whakatane Crown Solicitor, Tauranga
TAKAMORE v POLICE [2018] NZHC 3264 [12 December 2018]
Introduction
[1] David Takamore pleaded guilty to a single charge of driving with excess breath alcohol (third or subsequent)1 and was sentenced to disqualification from driving for 12 months and one day.2 His application to substitute the mandatory disqualification period for a community-based sentence under s 94 of the Land Transport Act 1998 was declined. Mr Takamore now appeals against that decision.
Background
[2] Mr Takamore was apprehended driving with excess breath alcohol in Ōpōtiki at 11.15 pm on 14 July 2018. An evidential breath test gave a reading of 483 micrograms of alcohol per litre of breath, the legal limit being 400 micrograms. In explanation Mr Takamore said he had had four Steinlagers. There were no other issues with his driving.
[3] Mr Takamore is 51 years old and resides in Ōpōtiki. He has a history of driving-related offending, although none of it is recent. In 2008 he was convicted of driving with excess blood alcohol, and in 2001 he was convicted of dangerous driving. In 1988, he was convicted of driving with excess breath alcohol and disqualified from driving for one year. That same year he drove while disqualified on two occasions.
[4] Having been convicted of his third offence of driving with excess breath or blood alcohol, Mr Takamore faced a maximum penalty of two years’ imprisonment or a $6,000 fine, and a mandatory disqualification period of at least one year.3 His counsel made an oral application at sentencing for part of the mandatory disqualification period to be substituted for a community-based sentence under s 94 of the Land Transport Act.
[5] Judge Bidois declined the application on 23 August 2018, although his Honour noted that he was sympathetic to a partial disqualification given the 10-year gap between the present offending and Mr Takamore’s previous conviction for driving
1 Land Transport Act 1998, ss 56(1) and 56(4).
2 Police v Takamore [2018] NZDC 19508.
3 Land Transport Act, s 56(4).
with excess breath alcohol. The Judge also recorded that Mr Takamore had written a letter of apology to the Court explaining that he was previously a heavy drinker, but no longer. He had lost a large amount of weight in recent years due to health problems and, the Judge commented, it may have been that he thought he could consume four bottles and be under the limit but with his weight loss and health situation that was no longer the…
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