GUDSELL v NEW ZEALAND POLICE [2021] NZHC 1684

GUDSELL v NEW ZEALAND POLICE [2021] NZHC 1684 [7 July 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI 2021-404-000221[2021] NZHC 1684BETWEEN MATTHEW THOMAS GUDSELLAppellantAND NEW ZEALAND POLICERespondentHearing: 29 June 2021Appearances: T D Clee for the Appellant H T Reid for the RespondentJudgment: 7 July 2021JUDGMENT OF VAN BOHEMEN JThis judgment was delivered by me on 07 July 2021 at 12.30pmRegistrar/Deputy RegistrarSolicitors/Counsel:Tudor Clee, Barrister, AucklandCrown Solicitor, AucklandIntroduction[1] The appellant, Matthew Gudsell, seeks to bring a second appeal against a sentence of 80 hours' community work and seven months' disqualification from driving imposed by Community Magistrate L M Nathan 1 on 23 February 2021 for the charge of driving with excess breath alcohol. 2 Mr Gudsell's appeal against the Community Magistrate's decision was dismissed by Judge A-M J Bouchier in the District Court at North Shore. 3[2] Mr Gudsell says the sentence imposed by the Community Magistrate and upheld by Judge Bouchier was manifestly excessive and that there were errors of law and procedure in the decisions of the Community Magistrate and Judge Bouchier.[3] Because this is a second appeal, Mr Gudsell requires leave in accordance with the Criminal Procedure Act 2011 (CPA).[4] The Police oppose leave being granted and oppose the appeal.Background[5] On 27 October 2020, Mr Gudsell was charged with driving with excess breath alcohol after a breath alcohol test at a routine police checkpoint recorded Mr Gudsell with 449 micrograms of alcohol per litre of breath. Mr Gudsell entered a guilty plea on 15 November 2020.[6] On 23 February 2021, Mr Gudsell was convicted and sentenced by the Community Magistrate to 80 hours of community work and ordered to pay $130 in court costs. He was also disqualified from driving for a period of seven months after his application under s 94 of the Land Transport Act 1998 (LTA) to receive a community-based sentence instead of disqualification was declined.1 Police v Gudsell DC North Shore CRI-2020-044-003445, 23 February 2021.2 Land Transport Act 1998, ss 56(1) and (3). Maximum penalty three months' imprisonment or a fine of $4,500, and a minimum mandatory disqualification of six months.3 Gudsell v Police [2021] NZDC 7941.[7] Mr Gudsell appealed the Community Magistrate's decision to the District Court. In her decision dated 27 April 2021, Judge Bouchier refused the appeal and upheld the Community Magistrate's decision. 4[8] Mr Gudsell seeks to appeal Judge Bouchier's decision.The Community Magistrate's decision[9] Community Magistrate Nathan sentenced Mr Gudsell on 23 February 2021 in an oral decision delivered after hearing submissions from Mr Clee, on behalf of Mr Gudsell, and from the Police.[10] The Community Magistrate recorded that Mr Gudsell had pleaded guilty to the current charge on 15 November 2020. She also recorded that Mr Gudsell had received a sentence of community work and a minimum period of disqualification in December 2008 after being found with 928 micrograms of alcohol per litre of breath in a breath alcohol test.[11] The Community Magistrate noted that Mr Gudsell had applied under s 94 of the LTA to receive a community-based sentence rather than a period of disqualification. The Community Magistrate recounted Mr Gudsell's personal and employment circumstances and his need to travel for work and to maintain contact with his child.[12] The Community Magistrate said she must consider aggravating and mitigating factors and the effectiveness of the earlier period of disqualification. The Community Magistrate inferred that the previous order for disqualification had been effective because Mr Gudsell had no other charges for driving while disqualified.[13] The Community Magistrate noted that Mr Gudsell said he required his licence because of the nature of his employment and because it would not be financially feasible for him to hire a driver. The Community Magistrate also noted that Mr Gudsell had said it was in the public interest not to disqualify him because it was4 Gudsell v Police, above n 3.in the public interest for people to maintain their employment, which was why he had made the s 94 application.[14] The Community Magistrate recorded that the Police opposed the application on the grounds that drinking was an aggravating feature of the offending because drinking and driving was not acceptable, and Mr Gudsell ought to have known that. The Police also considered that Mr Gudsell was eligible to apply for a limited licence and were not satisfied with the reasons and consequences Mr Gudsell had raised to avoid being disqualified.[15] The Community Magistrate said that when she looked at everything in its context, she was not satisfied that it was appropriate to grant Mr Gudsell's application under s 94. She accepted that Mr Gudsell was eligible to apply for a limited licence. She also noted that had Mr Gudsell been sentenced on 16 November 2020 (the day after his guilty plea) he would have been "quite a chunk of the way" through his disqualification period. 5[16] The Community Magistrate convicted Mr Gudsell of the offence and sentenced him to 80 hours' community work. The Community Magistrate also disqualified Mr Gudsell from driving for seven months and fixed the start date of the disqualification at 20 April 2021 or earlier if Mr Gudsell's appeal, which Mr Clee had indicated would be forthcoming, was granted or otherwise dealt with.Judge Bouchier's decision[17] Judge Bouchier heard Mr Gudsell's appeal on 27 April 2021 and gave her oral judgment the same day.[18] Judge Bouchier rehearsed the Community Magistrate's decision in in some detail and the evidence and submissions that had been before the Community Magistrate. The Judge stated:[7] The submissions of the appellant at that time looked first of all at the varying cases that are involved, set out the four factors which the Court is required to consider under s 94, which are the circumstances of the case and5 Police v Gudsell, above n 1, at [7].the offender, the effectiveness or otherwise of a previous order of disqualification, the likely effect on the offender of a further order of disqualification, and the interests of the public. The submissions then went on to discuss various cases under s 94, further noting that the onus is on the defendant to satisfy the four factors in s 94.[19] Judge Bouchier referred to the Police submissions which noted that Mr Gudsell's breath alcohol level of 449 was nearly twice the legal limit of 250 micrograms of alcohol per litre of breath, that this was a second charge, that there were no mitigating factors, that the previous order of disqualification had been effective, that Mr Gudsell was not "trapped in any continuous cycle of offending," that Mr Gudsell had not provided evidence of how severely a second disqualification would affect him and that the public interest was in Mr Gudsell receiving a deterrent sentence. 6[20] Judge Bouchier said she considered the Community Magistrate had looked at the four factors in s 94 of the LTA as required. The Judge said she could not find that the Community Magistrate had made a wrong decision and the Judge would have made the same decision. Therefore, the appeal failed, and the original disqualification and community work stood.[21] Mr Gudsell appealed Judge Bouchier's decision.[22] On 24 May 2021, on Mr Gudsell's application, Judge Bouchier suspended the disqualification of Mr Gudsell's licence pending determination of the further appeal. That suspension was later confirmed by Downs J on 16 June 2021 7 after the New Zealand Transport Authority failed to reflect the suspension in its records and refused to issue a licence to Mr Gudsell. As a consequence, the suspension became effective on 17 June 2021.6 At [9].7 Gudsell v Police HC Auckland, 16 June 2021 (Downs J).Relevant lawThe CPA[23] Section 253(3) of the CPA provides that the Court must not give leave for a second appeal unless satisfied that:(a) The appeal involves a matter of general or public importance; or(b) A miscarriage of justice may have occurred or may occur unless the appeal is heard.[24] Section 256 of the CPA provides that the Court must allow an appeal against sentence if it is satisfied that there is an error in the sentence and a different sentence should be imposed. In any other case, it must dismiss the appeal.[25] The grounds for determination of a second appeal under s 256 of the CPA are the same as the grounds for a first appeal under s 250 of the CPA.[26] The Court of Appeal has confirmed that, in applying s 250 of the CPA, the Court should continue to apply the long-established approach to reviewing sentences. 8An appeal against sentence will be successful only if the appellant can point to an error, either intrinsic to the Judge's reasoning, or as a result of materials submitted on the appeal, that vitiates the lower Court's sentencing discretion. 9 Unless there is a material error in the end sentence, the Court will not intervene. 10 There will be a material error if the end sentence is manifestly excessive or wrong in principle.11 In general, the focus is on whether the end sentence is within the available range, rather than the process by which the sentence was reached. 128 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30]; and Tamihana v R [2015] NZCA 169, at [14].9 Tamihana v R [2015], above n 8, at [29] – [30]; and Tamihana v R, above n 8, at [14].10 Te Aho v R [2013] NZCA 47 at [30]; and Tamihana v R, above n 8, at [14].11 Tamihana v R, above n 8, at [14].12 Tutakangahau v R, above n 8, at [36]; and Tamihana v R, above n 8, at [14].The LTA[27] Section 56(1) of the LTA provides that a person commits an offence if they drive a motor vehicle on a road while the proportion of alcohol in their breath exceeds 400 micrograms of alcohol per litre of breath.[28] Section 56(2) provides that a person commits an offence if they drive a motor vehicle on a road while the proportion of alcohol in their blood exceeds 80 micrograms of alcohol per 100 millilitres of blood.[29] Section 56(3) provides that if a person is convicted of a first or second offence under s 56(1) or (2), the maximum penalty is a term of imprisonment not exceeding three months or a fine not exceeding $4,500 and the court must order the person to be disqualified from holding or obtaining a driver licence for 6 months or more.[30] Section 94 provides that, despite any provision of the Act that requires the Court to order disqualification, the Court may, when sentencing a person who has previously been disqualified from holding a licence, instead impose a community- based sentence if it considers that it would be inappropriate to order disqualification having regard:(a) the circumstances of the case and of the offender;(b) the effectiveness or otherwise of a previous order of disqualification;(c) the likely effect on the offender of a further order of disqualification; and(d) the interests of the public.[31] Section 94 also requires that the Court be satisfied that it would be appropriate to sentence the offender to a community-based sentence in accordance with pt 2 of the Sentencing Act 2002. The section also requires that, in determining the appropriate sentence, the court must take into account the gravity of the offence andthe fact that the offender would otherwise have been liable to disqualification from holding or obtaining a driver licence.[32] Section 103 provides that, other than persons excluded under s 103(2), a person who is disqualified from holding a licence may apply for an order authorising a limited licence. Excluded persons include a person who was disqualified for the same offence within the previous five years.[33] Section 104 provides that a person who was disqualified for conviction for an offence under s 56 may not apply for an order for a limited licence for 28 days after the order for disqualification takes effect.[34] Section 105(1) and (2) provide that the Court may make an order authorising an applicant to obtain a limited licence if satisfied that disqualification will result in extreme hardship to the applicant, whether in relation to employment or otherwise, or undue hardship to any other person.The Sentencing Act[35] Under s 7 of the Sentencing Act, the purposes of sentencing include holding the offender accountable for harm done to the community, promoting a sense of responsibility for that harm, denouncing the conduct of the offender and deterring the offender and others from committing the same or similar offence.[36] Section 8 requires that, when sentencing an offender, the Court must, among other things:(a) Take into account the general desirability of consistency with sentencing levels in respect of similar offenders committing similar offences in similar circumstances (s 8(e)); and(b) Impose the least restrictive outcome appropriate in the circumstances, having regard to the hierarchy of sentences in s 10A (s 8(g)).[37] Under s 10A, sentences of a fine come below community work in the hierarchy of sentences.[38] Section 13 provides that if the Court is lawfully entitled under the Sentencing Act or any other Act to impose a fine in addition to or instead of any other sentence, the Court must regard a fine as the appropriate sentence for the particular offence unless, among other things, the Court is satisfied that the purpose for which the sentence is being imposed cannot be achieved by imposing a fine.Mr Gudsell's submissions on appeal[39] Mr Clee, counsel for Mr Gudsell, submits that leave should be granted for Mr Gudsell to appeal because a miscarriage of justice would otherwise occur and that the appeal should be allowed. The grounds advanced in support of both submissions are essentially the same:(a) The sentence imposed was manifestly excessive and failed to have regard to relevant authorities, in particular the decision of Woodhouse J in Beeston v Police; 13(b) The Community Magistrate had regard to an irrelevant consideration when declining Mr Gudsell's appeal; namely, Mr Gudsell's eligibility for a limited licence;(c) The Community Magistrate failed to take into consideration Mr Gudsell's parenting commitments and failed to assess the public interest in Mr Gudsell retaining his employment; and(d) The Community Magistrate wrongly considered the elements of the offence – drinking while driving – to be an aggravating factor.[40] Mr Clee seeks orders quashing the sentences of 80 hours' community work and seven months' disqualification and asks that a new sentence of 40 hours' community13 Beeston v Police [2012] NZHC 1064.work be imposed in lieu of further disqualification. Mr Clee says the new sentence should take into account the 23.5 hours of community work already served by Mr Gudsell. In oral submissions, Mr Clee submitted that if I uphold the disqualification, I should reduce the period to six months and replace the community work sentence with a fine.The Police submissions on appeal[41] Ms Reid, counsel for the Police, submits that:(a) No miscarriage of justice has occurred or will occur if Mr Gudsell is not granted leave to appeal and there is no obligation on Judges to refer to, apply or distinguish every authority mentioned in counsel's written submissions, and the circumstances in Beeston can be distinguished from those of Mr Gudsell;(b) The possibility of Mr Gudsell applying for a limited licence was a relevant factor and appropriately considered on that basis;(c) The Community Magistrate considered Mr Gudsell's parenting obligations; and(d) The Community Magistrate's reference to drinking and driving being aggravating factors was a summary of the Police's submissions on the aggravating features, rather than an identification of the aggravating features herself.[42] More generally, Ms Reid submits that there was no error or irregularity in Judge Bouchier's decision which gives rise to a real risk that the outcome of the District Court's decision was affected.[43] On the substance of Mr Gudsell's appeal, Ms Reid submits that the sentence was not manifestly excessive, that the Community Magistrate properly had regard to all of the factors under that section and made no error in declining Mr Gudsell's application. Ms Reid also submits that, in the event the Court should allow the appeal,the sentence of 40 hours' community work proposed by Mr Clee or the proposed alternative of a fine are not appropriate and do not reflect the seriousness of Mr Gudsell's offending.Discussion[44] Because the submissions of counsel on whether leave should be granted and on the merits of Mr Gudsell's appeal address the same questions, in practical terms, an inquiry into a miscarriage of justice for the purposes of leave to appeal under s 253 of the CPA involves substantively the same analysis as to whether an appeal should be granted under s 256 of that Act. For that reason, the following analysis is relevant to whether leave should be granted and whether the appeal allowed.[45] For convenience, I consider first whether the sentence was wrong in principle for the reasons raised by Mr Clee and then whether the sentence was manifestly excessive.Was the sentence wrong in principle?Did the Community Magistrate make an error of law?[46] Mr Clee says the Community Magistrate wrongly considered the elements of the offence as an aggravating feature of Mr Gudsell's offending and should have rejected the Police submission that drinking while driving was itself an aggravating feature and that Mr Gudsell's behaviour was unacceptable. He also says the Community Magistrate failed to recognise that s 94 was intended to allow persons convicted with drink driving offences to apply for community sentences in lieu of disqualification, as confirmed in Beeston. 14[47] If the Police did submit that drinking while driving was an aggravating feature, that was wrong as a matter of law. If the Community Magistrate had based her decision on that proposition, her decision would also have been wrong. However, the Community Magistrate did not say she accepted the Police submission or that she had based her decision on it. The Community Magistrate said she was not satisfied that14 At [11] – [25].Mr Gudsell's application should be granted when she looked at "everything in in its context." 15 That included all of the matters the Community Magistrate had discussed in her decision, in particular the four factors identified in s 94. I consider those matters provided ample basis for the Community Magistrate's decision. I do not accept that the decision was based on the incorrect premise that drinking while driving was an aggravating feature.[48] I also do not accept the related but more general submission that the Community Magistrate failed to understand the purpose of s 94 as discussed in Beeston v Police.[49] In Beeston, the District Court Judge declined an application under s 94 of the LTA on the basis that the section was intended to prevent people who were on an endless cycle of disqualification from being disqualified, whereas the defendant in that case had no current disqualification.16 Woodhouse J held that the District Court Judge had made an error of principle in proceeding on the basis that, unless there was a cycle of disqualification, s 94 did not apply.17 Woodhouse J confirmed that s 94 is available to any person who has at least one previous disqualification unless excluded from applying by s 94(4). 18 However, as Woodhouse J's analysis of the history of s 94 also makes clear, one of the purposes of the section was to include within its scope disqualified drivers who were caught in a cycle of disqualified driving but had no other recent convictions for serious road safety. The same points were made by Mallon J inPolice v Body. 19[50] In the present case, while Judge Bouchier observed that Mr Gudsell was not in a continuous cycle of offending, that was in the context of the Judge noting the Police submissions. Neither the Community Magistrate nor Judge Bouchier approached their decisions on the basis that s 94 did not apply. They each considered the application of the section to Mr Gudsell's circumstances. Nothing turned on the observation drawn15 Police v Gudsell, above n 1, at [7].16 Police v Beeston DC North Shore CRI-2011-090-008337, 17 February 2012 at [11].17 Beeston v Police, above n 13, at [11].18 At [24].19 Police v Body [2013] NZHC 1586 at [5].from the Police submissions which, in any event, was not inappropriate given the history of the section.[51] For these reasons, I am satisfied there was no error in principle on the approach taken towards s 94 equivalent to that found in Beeston.Irrelevant consideration[52] Mr Clee says the Community Magistrate had regard to an irrelevant consideration, namely whether Mr Gudsell was eligible for a limited licence, when deciding whether to grant Mr Gudsell's application under s 94 of the LTA. He says there is no relationship between s 94 and ss 103 to 105, which provide for the grant of limited licences. He also says that because orders for community licences can only be made by a Judge, the Community Magistrate had no business considering community licences.[53] Those submissions do not take into account the interrelated nature of the provisions of the LTA, as confirmed by the direct reference in s 104 to s 56, which establishes the offence that gives rise to Mr Gudsell's application under s 94.[54] When considering an application under s 94, the Community Magistrate must consider the circumstances of the offender and the likely effect of disqualification on the offender. If a person is eligible for a community licence, as Mr Gudsell appears to have been, that is relevant to both of those considerations. The Community Magistrate was entitled to have regard to that eligibility even if a limited licence would be difficult to obtain and of limited utility in Mr Gudsell's circumstances, as Mr Clee asserts. The fact that a Community Magistrate cannot make an order for a limited licence is of no relevance. The relevant question is whether Mr Gudsell can apply for a limited licence, not who makes the order authorising one.Failure to have regard to relevant considerations[55] Mr Clee says that neither the Community Magistrate nor Judge Bouchier addressed the submissions he had made that failure to grant Mr Gudsell's applicationwould cause hardship to Mr Gudsell's daughter. He also says they failed to assess the public interest in Mr Gudsell retaining his employment.[56] I do not agree. In paragraph [3] of her decision, the Community Magistrate referred to Mr Gudsell's affidavit and a map showing travel distances involved in his visiting his daughter who lives in Murchison. In paragraph [5], the Community Magistrate recorded the submissions made on Mr Gudsell's behalf concerning the public interest.[57] It is clear, therefore, that the Community Magistrate was aware of the importance Mr Gudsell attached to maintaining contact with his daughter and of the public interest submissions made on his behalf. While the Community Magistrate did not state explicitly what credence or weight she gave to those matters, I am satisfied they were part of the Community Magistrate's overall assessment of "everything in in its context," bearing in mind the observations of the Supreme Court in Sena v Policethat imperfection of expression is practically unavoidable, particularly in oral judgments, and that the adequacy of reasons must be assessed in the light of the type of case and the issues involved. 20[58] I am satisfied that the Community Magistrate's decision not to grant Mr Gudsell's application, after setting out the arguments that had been made in support of the application and considering "everything in in its context," sufficiently conveyed the Community Magistrate's assessment that it was not inappropriate to order disqualification, having had regard to the factors set out n s 94.[59] It is also relevant to note that, although Mr Clee submitted to Judge Bouchier that Mr Gudsell's daughter would suffer hardship if Mr Gudsell was disqualified, Mr Gudsell's evidence does not go that far. In his affidavit sworn in January 2021, Mr Gudsell said it was important to him to be a part of the life of his daughter who he sees about once every fortnight. While I accept that it is also important to the daughter to have her father in her life, there is no evidence to suggest that she would suffer hardship if she were unable to see Mr Gudsell as regularly for a period of seven months.20 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [37].[60] For these reasons, I do not consider that the decision made by the Community Magistrate and confirmed by Judge Bouchier was wrong in principle in any of the respects advanced by Mr Gudsell.Was the sentence manifestly excessive?[61] Mr Clee submits that the sentence of 80 hours' community work and seven months' disqualification was manifestly excessive having regard to Beeston, where the defendant had three previous convictions for driving with excess blood alcohol and was, therefore, a more serious offender than Mr Gudsell and was facing the higher penalty required under s 56(4) of the LTA. 21[62] In Beeston, Woodhouse J upheld an appeal against a sentence of 120 hours of community work and disqualification for a year and a day. Woodhouse J quashed both sentences and replaced them both with a sentence of 80 hours' community work.22Mr Clee also refers to the decision of the District Court in Lambarth v Police where Judge J Jelas quashed a sentence of 100 hours' community imposed by a Community Magistrate for one charge of driving while disqualified and imposed a sentence of 40 hours' community work in lieu.23[63] I am satisfied that Woodhouse J's decision to quash the sentence in Beestonand substitute a lesser sentence turned on the facts of that case which, in a number of significant respects, were quite different from Mr Gudsell's situation. In particular:(a) Ms Beeston's offending took place after a significant upheaval in her personal life and she showed genuine remorse for her offending; 24(b) Ms Beeston was the sole parent for four children who lived with her and depended on her for transportation; 2521 Beeston v Police, above n 13.22 At [36].23 Lambarth v Police [2019] NZDC 1397.24 Beeston v Police, above n 13, at [29].25 At [31].(c) Ms Beeston had already been disqualified from driving for eight months by the time of the High Court hearing; 26 and(d) Ms Beeston did not appeal the sentence of nine months supervision with special conditions, which, as Woodhouse J observed, was a sentence in itself. 27[64] According to Mr Gudsell's affidavit, his offending took place after he had stayed behind at work to console a colleague who was going through a traumatic relationship breakdown. The trauma, therefore, was that of his colleague, not of Mr Gudsell, and provides no equivalent basis for extending leniency as Woodhouse J considered was appropriate in Beeston. There is no evidence to suggest that Mr Gudsell's daughter depends on Mr Gudsell for everyday living, as was the case for the children in Beeston. Mr Gudsell has served a small proportion of his disqualification because of the delayed start date requested by his counsel and the subsequent suspension of the disqualification pending appeal. Significantly, apart from court costs, Mr Gudsell's sentence has no component other than the period of disqualification and the 80 hours of community work.[65] For these reasons, I do not consider Beeston to be of relevance or significant assistance, or that the Community Magistrate and Judge Bouchier were in error in not applying Beeston. It would have been appropriate for the Community Magistrate and Judge Bouchier to have referred explicitly in their decisions to a decision on which Mr Clee placed considerable reliance. It does not follow, however, that a failure to mention the decision is itself a ground of appeal if the decision itself is not applicable or persuasive.[66] In Lambarth, Judge Jelas accepted that a sentence of 100 hours' community work was excessive for an offender who drove while disqualified but where there were no other aggravating factors. Alcohol was not an issue in that offending or in the example of Ms Komene, which Judge Jelas drew from Police v Body, where the26 At [35].27 At [35].duration of the sentence was also not in issue. 28 Accordingly, I do not consider thatLambarth is apposite to Mr Gudsell's circumstances or that the Community Magistrate and Judge Bouchier were in error in not referring to that decision.[67] At the hearing on 29 June 2021, I asked counsel whether there was other authoritative guidance as to what constitutes an appropriate sentence and an appropriate period of disqualification, for someone in Mr Gudsell's circumstances. Mr Clee and Ms Reid agreed that there are few authorities because such decisions are seldom appealed. Both based their principal submissions on whether Beeston was relevant and persuasive.Further submissions[68] After the hearing, and with my agreement, Ms Reid filed supplementary submissions in which she referred me to Flavell v Police where Gault J upheld in part an appeal against a sentence of 60 hours' community work and 13 months disqualification for a driving offence which involved the defendant being chased and caught by the Police after he had attempted to evade a Police checkpoint and was found to have 597 micrograms of alcohol per litre of breath when tested. 29 Gault J quashed the sentence of 13 months' disqualification and imposed a sentence of 10 months' disqualification, but otherwise left the original sentence in place. 30[69] Ms Reid accepts that Mr Flavell's attempt to evade the Police checkpoint was an aggravating feature but submits that the judgment contains helpful comments on the perimeters of an appropriate sentence for second convictions for driving with excess breath alcohol.[70] Mr Clee, in a memorandum in response, says the prior offending and the sentences imposed for that offending, as well as the offending by Mr Flavell for which he was being sentenced, were more serious than Mr Gudsell's one prior conviction and disqualification for driving with excess breath alcohol. Mr Clee also referred me to Blyth v Police where Collins J quashed a sentence of 80 hours' community work28 Lambarth v Police, above n 23, at [4]; and Police v Body, above n 19.29 Flavell v Police [2019] NZHC 254.30 At [14].and 11 months' disqualification for a second drink driving offence and imposed a fine of $1,500 and nine months' disqualification.31 The second offence in that case involved having a blood alcohol level of 111 milligrams of alcohol per 100 millilitres of blood.[71] I thank counsel for their further submissions and the additional authorities, which I have found helpful.Relevant authorities[72] In Blythe, which preceded Flavell, Collins J referred to Palmer v Police, in which Courtney J quashed a sentence of 120 hours of community work and imposed a fine of $2,000 instead. 32 A sentence of 12 months' disqualification, which was not appealed, was left undisturbed.[73] In her decision, Courtney J said: 33A review of recent cases indicates that a fine together with disqualification is the usual sentence imposed on second drink-driving offences.The cases to which Courtney J referred were: Wright v Police, 34 Burke v Police,35Jones v Police36 and Martin v Police. 37[74] In the light of these decisions, as well as having regard to ss 8(e) and (g) and 13 of the Sentencing Act, Collins J concluded in Blythe that "a sentence" of community work was clearly excessive. His reasons were that the defendant's offending involved excess blood alcohol at the lower range of offending, the sentence of community work was out of line with sentences normally imposed on those convicted of a second breath/blood alcohol offence, and the District Court Judge did not appear to have given sufficient weight to ss 8(g) and 13 of the Sentencing Act. 3831 Blyth v Police [2012] NZHC 875.32 Palmer v Police HC Auckland CRI-2009-404-000262, 5 February 2010.33 At [5].34 Wright v Police HC Christchurch A104/02, 4 October 2005.35 Burke v Police HC Christchurch CRI-2007-409-165, 20 September 2007.36 Jones v Police HC Auckland CRI-2007-404-352, 21 February 2008.37 Martin v Police HC Auckland CRI-2008-404-44, 6 May 2008.38 Blyth v Police, above n 31, at [11].[75] In Flavell, Gault J referred to the decisions in Burke v Police39 and Palmer v Police40 to which Collins J had referred, and to Blythe itself and said he had considered those decisions for consistency.41 Gault J also had regard to ss 8(e) and 13 of the Sentencing Act.[76] Because Gault J did not have the District Court Judge's sentencing notes, he considered afresh whether the purpose for which the sentence was being imposed could be met by a fine. Having regard to the "moderately serious" level of the offending as established by the breath alcohol level of 597 micrograms, the aggravating feature of the defendant's attempt to evade the Police and the defendant's four previous driving related convictions, one of which was for refusing to cooperate with the Police for which the defendant had been fined, Gault J did not consider that the District Court Judge's sentence was manifestly excessive or wrong in principle. 42[77] Gault J said that while another Judge may have imposed a fine, the aggravating feature of the attempt to evade the Police combined with the previous convictions, satisfied him that a fine would not achieve the purposes of s 7 of the Sentencing Act, in particular, holding Mr Flavell accountable, promoting a sense of responsibility, denouncing the conduct and deterrence. Gault J considered that community work was the least restrictive outcome in the circumstances. 43[78] Gault J also considered that the amount of community work – 60 hours – was "relatively modest compared with the cases cited."44 Those cases were Burke v Police, 45 Palmer v Police46 and Blythe v Police, 47 where sentences of community work of 120 hours, 120 hours and 80 hours respectively had been imposed – but were then quashed on appeal.39 Burke v Police, above n 35.40 Palmer v Police, above n 32.41 Flavell v Police, above n 29, at [4].42 At [9] – [12].43 At [12].44 At [13].45 Burke v Police, above n 35.46 Palmer v Police, above n 32.47 Blyth v Police, above n 31.[79] Having considered the decisions in Blythe and Flavell, and the cases referred to in those decisions, I am satisfied that the preponderance of High Court authority is that the appropriate sentence in the case of a second breath / blood alcohol offence that is of low to moderate seriousness, that does not have aggravating features and where there is no other information to suggest that a fine will not serve the purposes of sentencing, is a fine rather than a sentence of community work, accompanied by a period of disqualification of between 6 and 12 months.[80] That conclusion is consistent with the purpose and principles of sentencing as set out in ss 7 and 8 of the Sentencing Act, in particular the principles in ss 8(e) and (g), with the hierarchy of sentences in s 10A of the Sentencing Act and with the requirement in s 13 of the Sentencing Act to regard a fine as the appropriate sentence unless the purpose of the sentence cannot be achieved by a fine. It is also consistent with s 56(3) of the LTA which requires that a period of disqualification of at least six months be imposed unless the Court is satisfied, upon an application under s 94 of the LTA, that a community sentence should be imposed instead of a period of disqualification.[81] In the present case, the seriousness of Mr Gudsell's offending is broadly comparable to that in Blythe – which Collins J considered to be at the lower range of offending. There are no aggravating features to Mr Gudsell's offending. There is nothing to suggest that a fine would not achieve the purposes of holding Mr Gudsell accountable, promoting a sense of responsibility, denouncing his conduct and deterrence. Having regard to the fines imposed in comparable cases and the seriousness of Mr Gudsell's offending, I consider a fine of $1,600 would have been appropriate if imposed upon Mr Gudsell's conviction.[82] There is nothing in the decisions of the Community Magistrate or Judge Bouchier to show that, when sentencing Mr Gudsell, they considered the purposes and principles of sentencing, the hierarchy of sentences or the requirements of s 13 of the Sentencing Act. To be fair to both decision-makers, there is nothing to show that such matters were raised with them by counsel for Mr Gudsell or the Police. However, whether or not these matters were raised, the requirements of ss 7, 8, 10A and 13 of the Sentencing Act applied and should have been taken into consideration.[83] For these reasons, I am satisfied that in not having regard to ss 7, 8, 10A and 13 of the Sentencing Act, the Community Magistrate and Judge Bouchier imposed on Mr Gudsell a sentence of 80 hours' community work that was both wrong in principle and manifestly excessive.[84] I am also satisfied that there would be a miscarriage of justice if Mr Gudsell was not able to pursue his appeal and that leave should be granted.[85] These conclusions do not apply to the seven months' disqualification which is entirely within the range and appropriate to the level of Mr Gudsell's offending.Conclusions and result[86] For all these reasons:(a) I grant leave to Mr Gudsell under s 253 of the Criminal Procedure Act to appeal the decisions of the Community Magistrate and the District Court Judge to sentence him to 80 hours' community work and to disqualify him from holding a driver's licence for seven months; and(b) I find that:(i) The Community Magistrate and the District Court Judge made no error of principle in declining Mr Gudsell's application under s 94 of the Land Transport Act for a community-based sentence instead of a period of disqualification;(ii) The sentence of 80 hours' community work was wrong in principle and was manifestly excessive having regard to:1. The purposes and principles of sentencing in ss 7 and 8 of the Sentencing Act, the hierarchy of sentences in s 10A of the Sentencing Act and the requirement of s 13 of the Sentencing Act to regard a fine as the appropriate sentenceunless satisfied that the purpose of the sentence cannot be achieved by a fine; and2. Sentences imposed in comparable cases where fines rather than sentences of community work have been held to be appropriate for a second breath / blood alcohol offence that is of low to moderate seriousness, that does not have aggravating features and where there is no information to suggest that a fine will not serve the purposes of sentencing.(iii) The disqualification of seven months was within the appropriate range and was not manifestly excessive.[87] Accordingly, I allow Mr Gudsell's appeal in part and quash the sentence of 80 hours' community work. I impose instead a fine of $1,100, having regard to the fact that Mr Gudsell has already served over 23 hours or just over a quarter of his community work sentence.48[88] The sentence of seven months' disqualification from driving stands. Accordingly, I lift the suspension ordered by Judge Bouchier and confirmed by Downs J. Mr Gudsell must serve the balance of the sentence, which commenced on 20 April 2021 and was suspended on 17 June 2021.49 As a consequence, Mr Gudsell has five months and three days of his disqualification to serve.______________________G J van Bohemen48 Having determined at [80] that a fine of $1,600 would have been appropriate if imposed upon conviction.49 See discussion at [22] above.