Tangipo v Police - [2015] NZHC 1810

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2015-443-31 [2015] NZHC 1810

BETWEEN
MARK ANTHONY TANGIPO

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 28 July 2015

Counsel:

M S Boyd for Appellant
S J Simpkin and A W M Britton for Respondent

Judgment:

3 August 2015

JUDGMENT OF CLIFFORD J

Introduction

[1] The appellant, Mark Tangipo, pleaded guilty to one charge of driving with excess breath alcohol and was sentenced by Judge Roberts in the District Court at New Plymouth on 18 June this year to six months imprisonment and the mandatory period of disqualification of 12 months and one day.1

[2] Mr Tangipo now appeals his sentence. He says the sentence of imprisonment was wrong in law and that he should have been sentenced to community work and supervision. He does not and in his circumstances cannot challenge his disqualification.

Facts

[3] Mr Tangipo was stopped by the police in the early hours of the morning of

13 December 2014 whilst driving his motor vehicle in New Plymouth. A subsequent

1 New Zealand Police v Tangipo [2015] NZDC 11384.

TANGIPO v NEW ZEALAND POLICE [2015] NZHC 1810 [3 August 2015]

evidential breath test returned a reading of 508 micrograms of alcohol per litre of breath, compared with the legal limit (for offences) of 400 micrograms.

[4] When spoken to by the police Mr Tangipo stated he was taking some friends home.

[5] Up until November 2006 Mr Tangipo had an extensive criminal history. That history included some seven previous breath and blood alcohol offences, three whilst an unlicensed driver, and numerous other dishonesty, driving and cannabis offending charges dating back to January 1987. Mr Tangipo has been sentenced to imprisonment on four previous occasions. His most recent sentence of imprisonment was in March 2006 for driving with excess breath alcohol, third or subsequent, when he was sentenced to three months imprisonment and denied leave to apply for home detention.

[6] Mr Tangipo had, however, not been convicted of any offence between March

2006 and June this year, some eight and a half years.

The challenged sentencing decision

[7] The Judge declined to accept the proposition that a sentence of community work was appropriate. He acknowledged that it had been some time since Mr Tangipo had offended, and that there was a member of his church in Court confirming willingness and ability to provide emotional and financial support.

[8] The Judge reasoned:

[19] … You have, in fact, 69 previous convictions. You are 46 years of age. At your age, you well know the consequences of offending. You were, from that point in 2006 when you were jailed, on notice that sentences for you in relation to this type of offending had moved to another level where imprisonment was being calculated.

…

[24] The short point, Mr Tangipo, is this, time has literally run out. You can now confidently expect that each time you re-offend in this fashion, prison sentences will be imposed and only increased. It is…

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 Tangipo v Police

Details

AGLC: Tangipo v Police [2015] NZHC 1810
Case: [2015] NZHC 1810
Decision Date: 3 August 2015

CaseChat Overview and Summary

Mark Tangipo, a repeat offender of drink driving, was sentenced to six months imprisonment and a disqualification from driving for 12 months and one day. Tangipo appealed against his sentence, arguing that it was wrong in law and that he should have been sentenced to community work and supervision instead. Tangipo did not challenge his disqualification from driving. Tangipo was stopped by the police while driving his motor vehicle in New Plymouth and was found to have a breath alcohol reading of 508 micrograms of alcohol per litre of breath, compared with the legal limit of 400 micrograms. Tangipo had an extensive criminal history, including seven previous breath and blood alcohol offences, three of which were committed while he was an unlicensed driver. The District Court Judge declined to accept the proposition that a sentence of community work was appropriate, and reasoned that Tangipo’s previous record meant that no sentence but imprisonment was the appropriate outcome. Tangipo argued that the Judge erred in considering protection of the public as a purpose of sentencing, failing to consider rehabilitation as a purpose of sentencing, failing to correctly analyse the gravity of the offending, and failing to impose the least restrictive outcome. The Court held that protection of the public was a key consideration in sentencing for drink-driving offending, and that the Judge did not err in failing to consider rehabilitation as a purpose of sentencing. The Court held that the eight and a half “trouble free” years since Tangipo’s last offending deserved greater recognition than the Judge gave them. The Court held that it was highly unusual for a person convicted of a third or subsequent blood alcohol offence to be sentenced to community work and supervision, but that it was not the inevitable sentence. The Court held that Tangipo had, but for this most recent event, addressed the problem he had with alcohol and driving, and that his recent offending was not especially grave. The Court allowed Tangipo’s appeal, quashed his sentence of imprisonment, and sentenced him to 250 hours community work and six months supervision. Tangipo is to undertake any programme his probation officer directs to address Tangipo’s alcohol dependency.
The mandatory period of disqualification of 12 months and one day is not subject to appeal and remains in force.

Orders