TAUPAU v POLICE [2019] NZHC 2237

TAUPAU v POLICE [2019] NZHC 2237 [6 September 2019]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI-2019-419-000054[2019] NZHC 2237BETWEEN MIKA TAUPAUAppellantAND NEW ZEALAND POLICERespondentHearing: 6 September 2019Counsel: GD Prentice for AppellantSF Gilbert for RespondentJudgment: 6 September 2019JUDGMENT OF DOWNS JThis judgment was delivered by me on Friday, 6 September 2019 at 3 pm.Registrar/Deputy RegistrarSolicitors/Counsel:GD Prentice, Hamilton.Crown Solicitor, Hamilton.[1] On 25 June 2019, Judge A S Menzies sentenced Mr Mika Taupau for drivingwhile disqualified, driving with excess breath alcohol, and intentional damage.1 TheJudge imprisoned Mr Taupau for 15 months and disqualified him from driving forthree years. Mr Taupau appeals the disqualification period; he does not appeal theprison sentence.[2] The Judge did not provide reasons in relation to the disqualification period,most likely because there was significant argument as to whether Mr Taupau shouldgo to jail. So, the Judge focussed on that aspect.[3] Section 31 of the Sentencing Act 2002 requires a Judge to give reasons for theimposition of a sentence or any other means of dealing with the defendant. It followssome justification for the length of the disqualification period ought to have beengiven, however brief, in a busy list court. For this reason, I approach the task afresh.[4] Mr Taupau committed the offences in the early hours of 18 October 2018. Acheckpoint revealed breath alcohol of 790 micrograms. Mr Taupau was subject torelease conditions and an 18-month disqualification period for driving with excessbreath alcohol in 2017. The offences represent Mr Taupau's ninth conviction fordriving with excess breath alcohol and eighth for driving while disqualified.[5] Mr Taupau contends his history reveals some progress because he did not drivewith excess breath alcohol between 2013 and August 2017. I disagree. Mr Taupauspent at least some of this time in prison (through a series of short prison sentences).[6] Mr Taupau submits the offending was unremarkable; there was no bad driving.I accept this submission but note the presence of another aggravating factor. Asobserved, Mr Taupau was subject to release conditions for like offending.[7] Mr Taupau also submits the pre-sentence report has positive aspects. Forexample, Mr Taupau's employer "spoke highly of him". His partner describedMr Taupau as "wonderful". The latter does not have the purchase it might otherwise1 Police v Taupau [2019] NZDC 12235.attract. Mr Taupau has a history of domestic violence. The former has generalrelevance.[8] Both parties invite attention to a host of cases, including R v Stone2 andRussell v Police.3 Mr Stone drove with a breath alcohol level of 723 micrograms.There was no bad driving, but the car was "overloaded" with young people. Theexcess breath alcohol conviction was Mr Stone's eighth. Mr Stone received homedetention. Mr Russell drove with a breath alcohol level of 930 micrograms. Therewas no bad driving in his case either. The excess breath alcohol conviction wasMr Russell's fourteenth. Mr Russell received a 22-month prison sentence. Both menreceived three-year disqualification periods.[9] Mr Taupau contends a three-year disqualification period is generally reservedfor offenders with a history of bad driving in addition to drink driving. It is not clearthe cases bear this out, but even if they do, Mr Taupau has convictions for recklesslyoperating a car, dangerous driving and failing to stop. True, all of these are a littledated, but in conjunction with Mr Taupau's history of drink driving and driving whiledisqualified, they augment the obvious: Mr Taupau has a bad record of offendingcontrary to the Land Transport Act 1998.[10] Given everything, I reach the same conclusion as Judge Menzies. Mr Taupau'sbreath alcohol level was high. Mr Taupau was on release conditions for like offending.His record is unsatisfactory. And, Stone and Russell are broadly like Mr Taupau'scircumstances. A three-year period is stern, but that is what is now required.[11] The appeal is dismissed...Downs J2 R v Stone [2009] NZCA 539.3 Russell v Police HC Whangarei CRI-2009-488-46, 15 December 2009.