TOVI v POLICE [2023] NZHC 2822

TOVI v POLICE [2023] NZHC 2822 [10 October 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2023-404-306[2023] NZHC 2822BETWEEN LEAAEKONA TOVIAppellantAND NEW ZEALAND POLICERespondentHearing: 9 October 2023Appearances: S Galler for the AppellantA Al-Janabi for the RespondentJudgment: 10 October 2023JUDGMENT OF GAULT JThis judgment was delivered by me on 10 October 2023 at 11:30 am.Registrar/Deputy RegistrarSolicitors / Counsel:Mr S Galler, Barrister, AucklandMs A Al-Janabi, Kayes Fletcher Walker, Office of the Crown Solicitor, Manukau City[1] Mr Tovi appeals a sentence of 60 hours' community work and an alcoholinterlock disqualification imposed by Judge K J Phillips in the District Court atManukau on 25 May 2023,1 after Mr Tovi pleaded guilty to one charge of contraveninga breath alcohol limit by a holder of a zero alcohol licence.2 He appeals on the groundthat 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 onBader Drive in Mangere. He was stopped by Police at a compulsory breath testcheckpoint. When spoken with, Mr Tovi exhibited signs of recent alcohol intake. Anevidential breath test procedure found that his breath contained 399 micrograms ofalcohol 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 hisconviction and sentencing on 27 July 2021 for driving with a breath alcohol level over400 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 andrejected Mr Tovi's explanation that he had had only one glass of whiskey. He alsonoted that Mr Tovi had pleaded guilty to the charge some five or six months after ithad been laid.[5] Given that Mr Tovi had already been sentenced for drink-driving offendingpreviously, the Judge considered that a fine was inappropriate and that an earlierdecision of this Court involving a successful appeal against a sentence of communitywork and supervision for a second drink-driving offence was not binding upon him.3The Judge imposed a sentence of 60 hours' community work to make Mr Tovi awareof his responsibilities to the community, and said he needed to understand that if here-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 notexceeding $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 adisqualification on Mr Tovi holding or obtaining a licence for a period of 28 days from26 May 2023. He delayed that disqualification by one day since Mr Tovi had treatedthe matter "with such distain" that he drove a car to Court. The Judge said that theinterlock disqualification would run for a period of 12 months followed by a zeroalcohol licence, and warned again that a third offence would have a "much moredrastic result".Approach on appeal[7] To succeed on an appeal against sentence, the appellant must satisfy this Courtthat there has been an error in the imposition of the sentence and that a differentsentence should be imposed.4 The Court will only intervene and substitute its ownview if the final sentence is manifestly excessive or wrong in principle.5 The Courtwill not, ordinarily, intervene when the sentence is within the range that is properlyjustified by accepted sentencing principles. The focus is on the final sentenceimposed, not its component parts or how that sentence was reached.6Analysis[8] Mr Tovi was convicted of an offence under s 57AA(4) of the Land TransportAct 1998 (LTA), carrying a maximum penalty of two years' imprisonment or a finenot 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 andcontrary 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 vPolice,7 both successful appeals against sentences of community work for seconddrink-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 themeans to pay a fine, had made rehabilitative efforts, was moving his car in order toavoid it being towed – not intending to drive on the open road for any distance – andhad a business which would be significantly hampered by the disqualification.8In Palmer, Courtney J considered it appropriate to substitute a fine given difficultydischarging the appellant's employment commitments and serving a communitysentence at the same time, and that despite the second offence, a fine was notinappropriate.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 theenactment of s 57AA in 2012.10 In both cases, the maximum penalty for the offenceunder 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 recentcases of Ashworth v Police11 and Bright v Police,12 both of which involved drivingwith excess breath alcohol on zero alcohol licences. In Ashworth, a sentence of ninemonths' supervision, 150 hours of community work and disqualification for a year andday was imposed.13 In Bright, a sentence of two weeks' community detention wasimposed on successful appeal from a sentence of two months' imprisonment, takinginto account that the appellant had served two weeks of the sentence imposed by theJudge.14 At the relevant time, the maximum penalty faced by the appellant in Brightwas three months' imprisonment or a fine not exceeding $2,250.[12] As Mr Galler submitted, both these cases involved defendants with more thanone prior offence of driving with excess breath alcohol. Ms Al-Janabi acknowledged8 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 amendmentswere enacted in 2014, including reducing the threshold for triggering the provision from 400mgto 250 mg for the purposes of s 57AA. This had the effect of aligning the maximum penalty todriving with excess breath alcohol (third or subsequent). This penalty structure indicates theseriousness 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 theHigh 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 foroffending such as this under s 57AA.[13] Further, I do not consider Paterson or Palmer would assist Mr Tovi in anyevent. In both of those cases, the Court considered factors such as prospects ofrehabilitation, the nature of the offending and impacts to business and employment asrelevant reasons as to why a fine should have been imposed. No such information hasbeen provided by Mr Tovi. Indeed, the available information, indicating that Mr Tovitried to minimise his offending and drove to Court on the day of his sentencing, wouldnot help any submission about rehabilitation.[14] As Ms Al-Janabi submitted, the Judge was correct to conclude that a fine inthis 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 beforethe Court again having disregarded part of his sentence. While the Judge did notexplicitly refer to s 13 of the Sentencing Act 2002, which amounts to a prima faciepresumption in favour of imposing a fine, the Judge reached a decision consistent withit, referring to Mr Tovi's "extremely high breath alcohol level" and the need to makeMr Tovi "aware of his responsibilities to the community". As s 13(a) of the SentencingAct provides, a Court is not required to regard a fine as the appropriate sentence wheresatisfied that the purposes of sentencing cannot be achieved by imposing a fine. Giventhe purposes of accountability, sense of responsibility, denunciation and deterrence,and the absence of information indicating rehabilitation, the Judge did not err inconcluding that a fine was inappropriate in this case.[15] Accordingly, the appeal is dismissed.________________________________Gault J