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…

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: [2023] NZHC 2822
Decision Date: 10 October 2023

CaseChat Overview and Summary

In the High Court of New Zealand, the appellant, Leaaekona Tovi, appealed against a sentence of 60 hours of community work and an alcohol interlock disqualification imposed by the District Court at Manukau on 25 May 2023. Tovi was convicted of contravening a breath alcohol limit by a holder of a zero alcohol licence. He argued that the appropriate sentence should have been a fine. The offending occurred on 6 November 2022 when Tovi was stopped by police at a breath test checkpoint. He had exhibited signs of recent alcohol intake and a breath test revealed 399 micrograms of alcohol per litre of breath. Tovi had previously been convicted for driving with a breath alcohol level over 400 micrograms per litre of breath.

The legal issues in the case included whether the District Court erred in imposing a sentence of 60 hours’ community work and an alcohol interlock disqualification, and whether a fine was the appropriate sentence. The court noted that Tovi had already been sentenced for drink-driving offending previously, and the District Court Judge considered that a fine was inappropriate. The Judge imposed a sentence of 60 hours’ community work to make Tovi aware of his responsibilities to the community and that he needed to understand that if he re-offended he would be liable to go to prison. The alcohol interlock disqualification would run for a period of 12 months followed by a zero alcohol licence.

The Court held that Tovi had not satisfied the Court that there had been an error in the imposition of the sentence and that a different sentence should be imposed. The Court found that the Judge was correct to conclude that a fine in this case would be insufficient to meet the purposes and principles of sentencing. The Judge had considered the purposes of accountability, sense of responsibility, denunciation and deterrence, and the absence of information indicating rehabilitation. The appeal was dismissed.

Orders