Tovi v Police

[2023] NZHC 2822

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-404-306

[2023] NZHC 2822

BETWEEN

LEAAEKONA TOVI

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

9 October 2023

Appearances:

S Galler for the Appellant

A Al-Janabi for the Respondent

Judgment:

10 October 2023

JUDGMENT OF GAULT J

This judgment was delivered by me on 10 October 2023 at 11:30 am.

Registrar/Deputy Registrar

……………………………………

Solicitors / Counsel:

Mr S Galler, Barrister, Auckland

Ms A Al-Janabi, Kayes Fletcher Walker, Office of the Crown Solicitor, Manukau City

TOVI v POLICE [2023] NZHC 2822 [10 October 2023]

[1]    Mr Tovi appeals a sentence of 60 hours’ community work and an alcohol interlock disqualification imposed by Judge K J Phillips in the District Court at Manukau on 25 May 2023,1 after Mr Tovi pleaded guilty to one charge of contravening a breath alcohol limit by a holder of a zero alcohol licence.2 He appeals on the ground that the appropriate sentence should have been a fine.

The offending

[2]    On 6 November 2022, at 8:30pm, Mr Tovi was observed driving a vehicle on Bader Drive in Mangere. He was stopped by Police at a compulsory breath test checkpoint. When spoken with, Mr Tovi exhibited signs of recent alcohol intake. An evidential breath test procedure found that his breath contained 399 micrograms of alcohol per litre of breath. Mr Tovi said he had had “one whiskey”.

[3]    At the time, Mr Tovi was driving under a zero alcohol licence, following his conviction and sentencing on 27 July 2021 for driving with a breath alcohol level over 400 micrograms per litre of breath (he recorded 1080 micrograms per litre of breath).

District Court sentencing decision

[4]    The Judge noted that this was Mr Tovi’s second drink-driving offence and rejected Mr Tovi’s explanation that he had had only one glass of whiskey. He also noted that Mr Tovi had pleaded guilty to the charge some five or six months after it had been laid.

[5]    Given that Mr Tovi had already been sentenced for drink-driving offending previously, the Judge considered that a fine was inappropriate and that an earlier decision of this Court involving a successful appeal against a sentence of community work and supervision for a second drink-driving offence was not binding upon him.3 The Judge imposed a sentence of 60 hours’ community work to make Mr Tovi aware of his responsibilities to the community, and said he needed to understand that if he re-offended he would be liable to go to prison.

1      Police v Tovi [2023] NZDC 18888.

2      Land Transport Act 1998, s 57AA; maximum penalty two years’ imprisonment or fine not exceeding $6,000, and mandatory disqualification for one year or more.

3      Paterson v Police [2012] NZHC 2759.

[6]    As for the alcohol interlock disqualification, the Judge imposed a disqualification on Mr Tovi holding or obtaining a licence for a period of 28 days from 26 May 2023. He delayed that disqualification by one day since Mr Tovi had treated the matter “with such distain” that he drove a car to Court. The Judge said that the interlock disqualification would run for a period of 12 months followed by a zero alcohol licence, and warned again that a third offence would have a “much more drastic result”.

Approach on appeal

[7]    To succeed on an appeal against sentence, the appellant must satisfy this Court that there has been an error in the imposition of the sentence and that a different sentence should be imposed.4 The Court will only intervene and substitute its own view if the final sentence is manifestly excessive or wrong in principle.5 The Court will not, ordinarily, intervene when the sentence is within the range that is properly justified by accepted sentencing principles. The focus is on the final sentence imposed, not its component parts or how that sentence was reached.6

Analysis

[8]    Mr Tovi was convicted of an offence under s 57AA(4) of the Land Transport Act 1998 (LTA), carrying a maximum penalty of two years’ imprisonment or a fine not exceeding $6000, and a mandatory disqualification for one year or more.

[9]    Mr Galler, for Mr Tovi, submitted that the Judge’s sentence was excessive and contrary to High Court authority that a fine is the usual sentence for such offending. He referred to two previous decisions of this Court, Paterson v Police and Palmer v Police,7 both successful appeals against sentences of community work for second drink-driving offences, where fines were substituted.

4      Criminal Procedure Act 2011, s 250(2).

5      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

6      Ripia v R [2011] NZCA 101 at [15].

7      Paterson v  Police  [2012] NZHC 2759; Palmer  v  Police  HC Auckland  CRI-2009-404-262, 5 February 2010.

[10]   In Paterson, the appeal was allowed by Duffy J because the appellant had the means to pay a fine, had made rehabilitative efforts, was moving his car in order to avoid it being towed – not intending to drive on the open road for any distance – and had a business which  would  be  significantly  hampered  by  the  disqualification.8 In Palmer, Courtney J considered it appropriate to substitute a fine given difficulty discharging the appellant’s employment commitments and serving a community sentence at the same time, and that despite the second offence, a fine was not inappropriate.9 In light of those cases, Mr Galler submitted that a fine in the range of

$1,500 and $2,000 should have been imposed.

[11]   As Ms Al-Janabi for the Police submitted, both these decisions pre-date the enactment of s 57AA in 2012.10 In both cases, the maximum penalty for the offence under s 56 was  three months’ imprisonment  or a fine of $4,500.  Under s 57AA,  Ms Al-Janabi submitted, sentencing starting points have ranged from six months’ imprisonment to 20 months’ imprisonment. Ms Al-Janabi referred to the more recent cases of Ashworth v Police11 and Bright v Police,12 both of which involved driving with excess breath alcohol on zero alcohol licences. In Ashworth, a sentence of nine months’ supervision, 150 hours of community work and disqualification for a year and day was imposed.13 In Bright, a sentence of two weeks’ community detention was imposed on successful appeal from a sentence of two months’ imprisonment, taking into account that the appellant had served two weeks of the sentence imposed by the Judge.14 At the relevant time, the maximum penalty faced by the appellant in Bright was three months’ imprisonment or a fine not exceeding $2,250.

[12]   As Mr Galler submitted, both these cases involved defendants with more than one prior offence of driving with excess breath alcohol. Ms Al-Janabi acknowledged

8      Paterson v Police [2012] NZHC 2759 at [22].

9      Palmer v Police HC Auckland CRI-2009-404-262, 5 February 2010 at [7].

10 Land Transport (Road Safety and  Other  Matters) Amendment Act 2011.  Further amendments were enacted in 2014, including reducing the threshold for triggering the provision from 400mg to 250 mg for the purposes of s 57AA. This had the effect of aligning the maximum penalty to driving with excess breath alcohol (third or subsequent). This penalty structure indicates the seriousness with which the present offence is viewed: Poulson v Police [2016] NZHC 2166 at [8].

11 Ashworth v Police [2020] NZHC 1587.

12 Bright v Police [2015] NZHC 231.

13 Police v Ashworth  [2020] NZDC 7549.  The sentence was not the subject of appeal before the  High Court in Ashworth v Police [2020] NZHC 1587, which was an appeal against conviction.

14 Bright v Police [2015] NZHC 231 at [18].

the offending in those cases was more serious but noted so were the sentences.      Mr Galler accepted that breaching the zero alcohol licence is an aggravating factor. Earlier cases under s 56 of the LTA do not mean that a fine is the usual sentence for offending such as this under s 57AA.

[13]   Further, I do not consider Paterson or Palmer would assist Mr Tovi in any event. In both of those cases, the Court considered factors such as prospects of rehabilitation, the nature of the offending and impacts to business and employment as relevant reasons as to why a fine should have been imposed. No such information has been provided by Mr Tovi. Indeed, the available information, indicating that Mr Tovi tried to minimise his offending and drove to Court on the day of his sentencing, would not help any submission about rehabilitation.

[14]   As Ms Al-Janabi submitted, the Judge was correct to conclude that a fine in this case would be insufficient to meet the purposes and principles of sentencing.   Mr Tovi had previously been fined for serious drink-driving offending and was before the Court again having disregarded part of his sentence. While the Judge did not explicitly refer to s 13 of the Sentencing Act 2002, which amounts to a prima facie presumption in favour of imposing a fine, the Judge reached a decision consistent with it, referring to Mr Tovi’s “extremely high breath alcohol level” and the need to make Mr Tovi “aware of his responsibilities to the community”. As s 13(a) of the Sentencing Act provides, a Court is not required to regard a fine as the appropriate sentence where satisfied that the purposes of sentencing cannot be achieved by imposing a fine. Given the purposes of accountability, sense of responsibility, denunciation and deterrence, and the absence of information indicating rehabilitation, the Judge did not err in concluding that a fine was inappropriate in this case.

[15]Accordingly, the appeal is dismissed.

Gault J