Tinei v Police - [2012] NZHC 2003

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-000148 [2012] NZHC 2003

ELIA TINEI
Appellant

v

NEW ZEALAND POLICE
Respondent

Hearing: 7 August 2012

Counsel: A A Rasheed for Appellant
R Thomson for Respondent

Judgment: 7 August 2012

JUDGMENT OF ASHER J

Solicitors/Counsel:
AA Rasheed, PO Box 97 057, Manukau City, Auckland. Email: aarif@defence.co.nz
Crown Solicitor, DX CP24063, Auckland 1140. Email: Rebecca.thomson@meredithconnell.co.nz

TINEI V NZ POLICE HC AK CRI-2012-404-000148 [7 August 2012]

[1] On 11 November 2011, the appellant Elia Tinei was stopped while driving a motor vehicle at a Police checkpoint at Clover Park. Inquiries revealed that he had previously been forbidden to drive a motor vehicle and he was therefore failing to comply with the prohibition under s 52(1)(c) of the Land Transport Act 1998 (“the Act”). An alcohol breath test procedure was carried out and his breath was found to contain 945 micrograms of alcohol per litre of breath. His explanation was that he had no one else to pick him up after drinking.

[2] Mr Tinei had six previous convictions for driving with excess breath alcohol (“EBA”) or refusing requests for a blood specimen. He was for all intents and purposes offending for the seventh time. He was charged with driving with EBA on a third or subsequent occasion under s 56(4) of the Act. The maximum penalty is two years’ imprisonment or a fine of $6,000 and a minimum disqualification of one year. He was also charged with two counts of, being an unlicenced driver, failing to comply with a prohibition under s 52(1)(c) of the Act. The maximum penalty for that offence is a fine of $10,000.

[3] Mr Tinei appeared before Judge Wiltens on 7 May 2012 for sentencing. The Judge imposed an end sentence on him of six months’ home detention, he disqualified him from driving for a period of two years and convicted and discharged him on the other charges. This appeal is against that sentence.

The sentencing decision

[4] The Judge noted that this was the second time that Mr Tinei had been driving while forbidden and the high level of the breath alcohol reading. He noted that the position was aggravated by him driving for a second time while he was already facing a charge of driving while forbidden to do so. He noted the previous convictions omitting one of those. However, he proceeded on the correct basis that this was the seventh occasion that Mr Tinei had appeared before the Courts for driving with EBA. He also noted that on previous occasions Mr Tinei had received a final warning.

[5] The Judge observed that the pre-sentence report recommended a sentence of supervision, and stated that this did not appeal to him. He concluded that the least restrictive outcome that was available was home detention. In doing so, he bore in mind Mr Tinei’s “health considerations”.

[6] In referring to Mr Tinei’s health, the Judge undoubtedly had in mind the references to this in the pre-sentence report. 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: [2012] NZHC 2003
Decision Date: 7 August 2012

CaseChat Overview and Summary

Elia Tinei was charged with driving with excess breath alcohol on a third or subsequent occasion and with being an unlicensed driver, failing to comply with a prohibition under s 52(1)(c) of the Land Transport Act 1998. He appeared before Judge Wiltens for sentencing on 7 May 2012. He was sentenced to six months' home detention, disqualified from driving for two years and convicted and discharged on the other charges. This appeal is against that sentence.

The appeal raised two main issues. The first was whether the sentence was manifestly excessive. The second was whether the period of disqualification was too long in all the circumstances. The appeal submitted that the appropriate starting point for sentence was 12 months' imprisonment and that a sentence of three months' home detention was appropriate rather than six months' home detention. The appeal also submitted that the period of disqualification should be reduced to a period of one year and six months.

In relation to the sentence, I accepted that a starting point of around 12 months' imprisonment was correct. However, the sentence of six months' home detention was within the appropriate range of sentencing. In relation to the sentence of disqualification, I considered that in the circumstances the period of disqualification, while moderately severe, was justified.

The appeal was dismissed.

Orders