Waudby v Police HC Christchurch CRI-2011-409-000009

[2011] NZHC 240

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2011-409-000009

BENJAMIN JAMES WAUDBY

Appellant

v

POLICE

Respondent

Hearing:         23 March 2011

(Heard at Wigram Airbase)

Appearances: P McMenamin for Appellant

D L Elsmore for Respondent

Judgment:      23 March 2011

ORAL JUDGMENT OF HON JUSTICE FRENCH

[1]      This is an appeal against sentence.

[2]      Following a plea of guilty, the appellant was convicted in the District Court of driving with an excess breath alcohol level.  He was fined $800 and disqualified from driving for nine months.

[3]      The facts of the offending were that in the early hours of the morning of 27

November 2010 the appellant was driving a motor vehicle in England Street, Christchurch.  An evidential breath test established a reading of 191 micrograms of alcohol per litre of breath.

[4]      The appellant is 17 years of age and a first offender.

WAUDBY V POLICE HC CHCH CRI-2011-409-000009 23 March 2011

[5]      In sentencing the appellant, the District Court Judge stated:

[1]       Far more than twice the maximum, Mr Waudby.  You are 17 and it is people like you that are killing and maiming people on the road.  People around about your age, somewhere between 15 and 25, drunk as a lord and in charge of a dangerous thing like a motorcar.

[2]       Convicted and fined $800 in costs.  Disqualified from driving, nine months from today.

[6]      On appeal, counsel agree that the Judge has obviously made a mistake.  At

191 micrograms, the appellant was not “far more than twice the maximum”.   His level was in fact far less, and it appears that what has happened is that the Judge has confused the breath test measurements with blood test measurements.

[7]      I am satisfied that the appeal should obviously be allowed.  Had the Judge’s mistake been a correct view of the facts then the sentence would have been appropriate, but given the actual level and the age and lack of previous convictions, the sentence imposed was manifestly excessive.

[8]      The fine of $800 is accordingly quashed and substituted with a fine of $350. The order for disqualification is also quashed and substituted with an order that the appellant be disqualified from driving for three months.

[9]      The Judge’s order as to Court costs is confirmed.

Solicitors:

P McMenamin, Christchurch

Crown Solicitor’s Office, Christchurch