FREDRICSEN v NEW ZEALAND POLICE [2018] NZHC 2721

FREDRICSEN v NEW ZEALAND POLICE [2018] NZHC 2721 [19 October 2018]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGĀREI-TERENGA-PARĀOA ROHECRI-2018-488-000035[2018] NZHC 2721BETWEEN MOANA TAI ERIC FREDRICSENAppellantAND NEW ZEALAND POLICERespondentHearing: 15 October 2018Counsel: P H Tomlinson for appellantT Needham for respondentJudgment: 19 October 2018JUDGMENT OF KATZ JThis judgment was delivered by me on 19 October 2018 at 4.00 pmPursuant to Rule 11.5 High Court RulesRegistrar/Deputy RegistrarSolicitors: Marsden Woods Inskip Smith, Office of the Crown Solicitor, WhangareiCounsel: P H Tomlinson, Barrister, AucklandIntroduction[1] Moana Tai Fredricsen was convicted of driving with excess breath alcohol. Hisbreath alcohol level was 715 micrograms of alcohol per litre of breath. On 15 August2018, he was sentenced in the Kaikohe District Court to a fine of $1300 anddisqualified from driving for a year and a day.[2] Mr Fredricsen appeals his sentence. Mr Tomlinson submitted, on his behalf,that the appropriate sentence is a fine of $700–$900 and disqualification for a periodof six to seven months.Approach to appeal[3] Section 250 of the Criminal Procedure Act 2011 provides that a first appealcourt must allow an appeal against sentence if satisfied that, for any reason, there isan error in the sentence imposed on conviction, and a different sentence should beimposed. In every other case, the court should dismiss the appeal.[4] The approach under s 250 of the CPA is to determine whether there was anerror "intrinsically or as a result of additional material".1 If there is an error, then theHigh Court is to form its own view as to the appropriate sentence.2 A sentence maybe set aside where it was manifestly excessive. Whether that is the case will dependon the end sentence, rather than the process by which the sentence was reached. Asentence within range will not be altered, but if the sentence is manifestly excessivethen the Court will form its own view of the appropriate sentence.3[5] No formal sentencing notes are available, so I do not have any informationbefore me as to the reasoning of the sentencing Judge. I will therefore approach thesentencing exercise de novo.41 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].2 At [30].3 At [30]–[36].4 See Morris-Stewart v Police [2016] NZHC 1030 at [7]; Goundan v Police HC Wellington (1999)AP97/99, 28 May 1999.[6] The notice of appeal was filed four days late. The delay has been adequatelyexplained and I am satisfied that an extension of time should be granted for the filingof the appeal.Factual background[7] On 3 August 2018, Mr Fredricsen was driving a motor vehicle on FairwayDrive, Kerikeri. He was stopped at a police check point and admitted to drinking priorto driving. He said he wished to speak to a lawyer, and was transported to the Kerikeripolice station. Upon arrival, he changed his mind and underwent breath alcoholprocedures, returning a result of 715 micrograms per litre of breath.Should a different sentence have been imposed?[8] The maximum penalty for Mr Fredricsen's offending is three months'imprisonment or a fine not exceeding $4,500.5 The Court must also order that theoffender be disqualified from holding or obtaining a driver's licence for six months ormore.6[9] Mr Fredricsen has one previous conviction for drink driving, dating back to2005. Given the time gap, Mr Tomlinson submitted that a lesser fine and minimumperiod of disqualification was appropriate. The Crown, on the other hand, submittedthat the fine imposed is unremarkable and the disqualification period, while at thehigher end, is still within the available range.[10] Mr Fredricsen's previous conviction involved drink driving with a level of535 micrograms of alcohol per litre of breath. The offending occurred in 2005 buta conviction was not entered until 2013. Mr Fredricsen has sworn an affidavitexplaining the reasons for this. In short, Mr Fredricsen is a fishing captain. Prior toappearing in Court for the 2005 offending he was severely assaulted, which resultedin his hospitalisation for several months. The men who assaulted him were sentencedto seven years' imprisonment. Mr Fredricsen's family notified the Court of hissituation, but the relevant records could not be located by the court staff.5 Land Transport Act 1998, s 56(1) and (3).6 Land Transport Act 1998, s 56(3).Mr Fredricsen (who spent considerable periods working overseas) did not hearanything further about the 2005 charge until 2012, when he became aware of anoutstanding warrant for his arrest. In January 2013, he appeared in the AucklandDistrict Court and pleaded guilty to the 2005 charge. He was fined $535 anddisqualified from driving for six months.[11] Mr Fredricsen has no other previous convictions.Period of disqualification[12] If a drink driving offence is a third or subsequent offence, the disqualificationperiod must be for more than one year.7 The significance of this requirement is thata person who is disqualified for more than one year must re-apply for a driver's licenceonce the period of disqualification has come to an end.8[13] There is no requirement, however, that a second-time offender be disqualifiedfor more than one year. Indeed, Mr Tomlinson submitted that it is relatively unusualfor such a sentence to be imposed.[14] I have reviewed the various cases referred to by counsel.9 They involvedperiods of disqualification ranging from eight months to over a year for second excessblood/breath alcohol convictions. As Collins J observed in Blyth v Police, however,"in the general range of cases where no exceptional circumstances are present, a periodof disqualification of six to 12 months is considered appropriate".10[15] Martin v Police involved a reading of 667 micrograms of alcohol per litre ofbreath. On appeal, Mr Martin's period of disqualification was reduced to eight monthsfrom 12 months. In Sharma v Police, referred to by the Crown, the defendant's bloodalcohol level was 86 mg of alcohol per 100 ml of blood, which was just over the legallimit. The defendant was sentenced to a $500 fine and disqualified from driving for7 Land Transport Act 1998, s 56(4)(b).8 Land Transport Act 1998, s 839 Sharma v Police [2018] NZHC 2471; Blyth v Police [2012] NZHC 875; Palmer v PoliceHC Auckland CRI-2009-404-262, 5 February 2010; Lee v Police HC ChristchurchCRI-2008-409-217, 12 February 2009; Doughty v Police [2015] NZHC 430; Martin v PoliceHC Auckland CRI-2008-404-44, 6 May 2008.10 See Blyth v Police [2012] NZHC 875 at [15].eight months. His previous conviction, from four years earlier, involved a breathalcohol reading of 943 micrograms of alcohol per litre of breath. Mr Fredricsen'soffending is more serious than that in Sharma, given that his level of breath alcoholwas significantly above the legal limit.[16] Counsel also referred to Palmer v Police, where the defendant was sentencedto 12 months' disqualification for a blood alcohol level of 100 milligrams of alcoholper 100 millilitres of blood11 and Lee v Police, which involved 562 micrograms ofalcohol per litre of breath, and an eight-month period of disqualification (on appeal).12Both cases support the view that the present sentence is too high.[17] I have also located two further cases which are of assistance. In Barkerv Police, the defendant returned a reading of 260 milligrams of alcohol per100 millilitres of blood.13 Justice Lang stated that this equated to driving with1300 micrograms of alcohol per litre of breath (a very high reading). The defendanthad a previous conviction for driving with excess blood alcohol, but it was from morethan 30 years ago. While the defendant was driving in an erratic manner during heroffending, the appeal was allowed and the disqualification order of 13 months wasquashed and reduced to ten months. The fine of $1,300 was undisturbed on appeal.Ms Barker's offending was more serious than that of Mr Fredricsen.[18] I also consider that Collins J's decision in Smith v Police is of assistance.14Mr Smith had been sentenced to 250 hours' community work, and was disqualifiedfrom driving for a year and a day for driving with 919 micrograms of alcohol per litreof breath. Mr Smith successfully appealed the period of disqualification, which wasreduced on appeal to a period of 11 months'. He had one previous conviction fordriving with excess breath alcohol (with a breath alcohol level of 889 micrograms ofalcohol per litre of breath) from around seven years prior. Justice Collins consideredthat the period of disqualification imposed was more typical for someone convicted oftheir third offence. It was above the normal range of between nine to 12 months'11 Palmer v Police, above n 9.12 Lee v Police, above n 9.13 Barker v Police [2014] NZHC 3123.14 Smith v Police [2014] NZHC 2101.disqualification imposed on someone convicted of a first or second offence. Theperiod of disqualification was reduced to 11 months.[19] Although Mr Fredricsen's previous conviction was only entered in 2013, itshould be treated as a historical conviction, for the reasons I have outlined above.There is accordingly a 13-year gap between his two offences. With reference to thevarious cases I have referred to, I am satisfied that the period of one year and one daydisqualification imposed (with the associated consequence that Mr Fredricsen mustre-apply for a driver's licence) is excessive. I consider that a period of disqualificationof ten months is appropriate in all the circumstances.Fine[20] In my view, the fine imposed is within the available range, albeit probablytowards the higher end of that range. The fine was less than the $2,000 imposed inDoughty, which involved much more serious levels of alcohol.15 The sum of $2000was also imposed in Palmer which, as I noted above, involved the defendant havingbeen found driving with excess blood alcohol, measured as being 100 milligrams ofalcohol per 100 millilitres of blood. Sharma, where the offending was borderline,involved a fine of $500 but which would have been $750 if not for personal mitigatingfactors.16 In the circumstances, which involved a moderate to high level of breathalcohol, I do not consider the fine of $1,300 was manifestly excessive.Result[21] The appeal is allowed to the extent that the sentence of one year and one day'sdisqualification is quashed and a sentence of ten months' disqualification issubstituted.__________________________Katz J15 Doughty v Police, above n 9.16 Sharma v Police, above n 9.