Waihape v Police - [2012] NZHC 1459

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2012-485-000051 [2012] NZHC 1459

BETWEEN ROGER TETAU WAIHAPE Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 26 June 2012

Counsel: V C Nisbet for Appellant
J A Eng for Respondent

Judgment: 26 June 2012

ORAL JUDGMENT OF COLLINS J

Introduction

[1] The appellant was stopped at a police checkpoint at approximately 10.50am on Sunday 27 November 2011. Breath testing procedures were carried out. The appellant’s breath was found to contain 544 micrograms of alcohol per litre of breath.

[2] The appellant has four previous convictions for driving with excess breath or blood alcohol. Those convictions related to incidents which occurred on:

(1) 14 January 1982; (2) 9 November 1983; (3) 22 March 1984;
(4) 23 June 1993.

WAIHAPE V NEW ZEALAND POLICE HC WN CRI-2012-485-000051 [26 June 2012]

[3] On the last occasion he was convicted of driving with excess breath/blood alcohol. The appellant was sentenced to 75 hours community service and disqualified from driving for six months. The appellant pleaded guilty to the latest charge. Judge Behrens QC fined the appellant $1,000 and disqualified him from driving for 18 months. Mr Waihape appeals the length of disqualification imposed by the District Court Judge. He submits that the length of the period of disqualification imposed upon him by the District Court Judge was “clearly excessive or inadequate or inappropriate” within the meaning of s 121(3)(b) of the Summary Proceedings Act 1957.

Submissions for appellant

[4] Mr Nisbet, counsel for Mr Waihape has based his submissions on the following points:

(1)There was no suggestion Mr Waihape’s driving was wayward and/or dangerous. Mr Waihape had been drinking the previous night at a work function and ensured his car was not available to him. He, however, believed he needed to drive on the Sunday morning to look for a family member.

(2) Mr Waihape’s previous convictions were 19 years ago, or longer.

Submissions for the respondent

[5] In opposing the appeal, Mr Eng has drawn the Court’s attention to a number

of cases, namely:

(1)Fairbrother v Police[1] where an appellant, convicted of driving with excess breath alcohol (558 micrograms per litre of breath) was fined
[1] Fairbrother v Police HC Wellington MA16/02, 5 December 2002.
$1,500 and disqualified from driving for two years. In the High Court

Ellen France J observed that disqualification of up to 18 months can

be legitimately imposed for a second drink drive conviction and that the sentence under appeal was not manifestly excessive.

(2)Gregory v Police.[2] In that case there were three previous convictions for drink driving which were of an historical nature. The appellant had been convicted of driving with 600 micrograms of alcohol per litre of breath. A disqualification period of 18 months was upheld by Neazor J in the High Court.

Analysis

[2] Gregory v Police HC Palmerston North AP36/00, 16 August 2000.

[6] In considering whether or not to allow the appeal I have:

(1)had regard to the requirements of s 8(e) of 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 1459
Decision Date: 26 June 2012

CaseChat Overview and Summary

In Waihape v Police, the appellant, Roger Tetau Waihape, was charged with driving with excess breath alcohol. He was stopped at a police checkpoint and found to have 544 micrograms of alcohol per litre of breath. Waihape pleaded guilty to the charge and was sentenced to a fine of $1,000 and disqualified from driving for 18 months. Waihape appealed the length of his driving disqualification, arguing that it was excessive. The court was required to determine whether the disqualification period imposed by the District Court was "clearly excessive or inadequate or inappropriate" under section 121(3)(b) of the Summary Proceedings Act 1957.

The court considered the requirements of the Sentencing Act 2002, which includes the need for reasonable consistency and uniformity in the disposition of similar cases, and the need for the sentence to impose the least restrictive outcome that is appropriate. The court also examined comparable cases to determine an appropriate disqualification period. Waihape's counsel argued that there was no suggestion his driving was wayward or dangerous and that his previous convictions were over 19 years old. The respondent's counsel referred to cases where similar disqualification periods were upheld.

The court found that the disqualification period imposed on Waihape was manifestly excessive, taking into account his comparatively low blood alcohol level and the need for the disqualification period to reflect the culpability of the offending and the offender. The court substituted a period of disqualification of one year and one day, allowing the appeal. All other orders made by the District Court remained in place.

Orders