Takamore v Police - [2018] NZHC 3264

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…

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.

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Details

Case: [2018] NZHC 3264
Decision Date: 12 December 2018

CaseChat Overview and Summary

David Takamore appealed against the District Court's refusal to substitute the mandatory disqualification from driving for 12 months and one day with a community-based sentence under s 94 of the Land Transport Act 1998. Mr Takamore pleaded guilty to driving with excess breath alcohol and was sentenced in accordance with s 56(4) of the Land Transport Act. He had a history of drink driving, but the most recent conviction was from 10 years ago. The District Court declined to substitute the mandatory disqualification period for a community-based sentence. Mr Takamore argued that the District Court judge had erred in finding that s 94 of the Land Transport Act could not be applied to an offence under s 56(4) of the same Act, and that he met the criteria in s 94(1). The appeal was dismissed. The Court found that the District Court judge erred in finding that s 94 could not be applied to cases of drink driving. However, the Court was not satisfied that a different sentence should be imposed, and dismissed the appeal. The appeal was dismissed and no further sentence was imposed.

Orders