FAALOGO v NEW ZEALAND POLICE [2023] NZHC 1302

FAALOGO v NEW ZEALAND POLICE [2023] NZHC 1302 [29 May 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2022-404-417[2023] NZHC 1302BETWEEN MORMON FAALOGOAppellantAND NEW ZEALAND POLICERespondentHearing: 29 May 2023Appearances: J Schlebusch for AppellantJ L Gibson for RespondentJudgment: 29 May 2023JUDGMENT OF WOOLFORD JSolicitors: Meredith Connell (Office of the Crown Solicitor), AucklandCounsel: J Schlebusch, Auckland[1] On 6 October 2022, Mormon Faalogo pleaded guilty to a charge of driving amotor vehicle with excess breath alcohol. Judge R von Keisenberg disqualified himfor seven months and sentenced him to 12 months' supervision.1 The Judge did notimpose any monetary penalty.[2] Mr Faalogo now appeals against the sentence of 12 months' supervision.Factual background[3] At about 9:15 pm on Monday, 11 April 2022, the appellant was driving aHolden motor vehicle north on Aotea Quay, Wellington. He was stopped forexceeding the posted speed limit of 50 kilometres per hour by driving at 70 kilometresper hour.[4] Breath test procedures were commenced, and a subsequent evidential breathtest gave a positive reading of 545 micrograms of alcohol per litre of breath. Theappellant declined to make any statement.District Court sentence[5] After setting out the summary of facts, the Judge noted that this was theappellant's second similar offence. He had been convicted of refusing a bloodspecimen in 2017. The Judge said that she had heard from appellant's counsel that hehad been unwell, having spent some time in hospital and that he was not inemployment. The Judge did comment, however, that he had not learnt his lesson fromfive years ago.[6] The Judge proceeded to disqualify the appellant for seven months because thiswas his second such offence. The Judge noted that the appellant had been sentencedto 18 months' intensive supervision in 2019 for refusing a blood specimen. On thisoccasion, the Judge sentenced the appellant to a sentence of 12 months' supervision.As a condition of that supervision, the appellant was to attend any courses orprogrammes as recommended by the Department of Corrections, includingprogrammes specifically to address alcohol or drug issues.1 Police v Faalogo [2022] NZDC 22736.SubmissionsAppellant's submissions[7] The appellant appeals only against the sentence of 12 months' supervision. Hesubmits that the sentence is manifestly excessive and the Court should have imposeda fine together with disqualification.[8] The appellant submits that a fine is most often the appropriate sentence(together with disqualification) for a second drink drive offence.[9] The appellant refers to a number of cases – Blythe,2 Palmer,3 Fredricsen,4 andGudsell.5[10] Counsel submits that the appellant's case at 545 micrograms of alcohol per litreof breath very closely resembles Blyth at a blood alcohol level of 111 micrograms ofalcohol per 100 millilitres of blood, equivalent to a breath level of about555 micrograms, is higher than Gudsell with a level of 449 micrograms, but lowerthan Fredricsen with a level of 715 micrograms. Counsel notes the high fine of $2,000in Palmer for a second offence. Counsel, therefore, submits that a significant fine isappropriate in place of the lengthy term of supervision.Respondent's submissions[11] Counsel for the respondent submits that the sentence of supervision was notmanifestly excessive. The appellant's complaints predominantly go to the weightingthe Judge gave to the appellant's prior conviction and the fact that the Judge did notimpose a fine. The respondent submits they are not errors or grounds for a successfulappeal.2 Blyth v New Zealand Police [2012] NZHC 875.3 Palmer v New Zealand Police HC Auckland CRI-2009-404-00262, 5 February 2010.4 Fredricsen v New Zealand Police [2018] NZHC 2721.5 Gudsell v New Zealand Police [2021] NZHC 1684.[12] Counsel for the respondent also refers to a number of cases – Walsh,6McLachlan,7 and Callaghan.8 The respondent submits that, given that this was theappellant's second offence, the sentence of supervision imposed was within ajustifiable range. The Judge considered whether to fine him and concluded thatsentence was inappropriate. In those circumstances, the respondent submits the Courtshould dismiss the appeal.Discussion[13] Section 250 of the Criminal Procedure Act 2011 provides that first appeal courtmust allow an appeal if satisfied that there is, for any reason, an error in the sentenceand that a different sentence should be imposed.[14] The Sentencing Act 2002 provides guidance on the use of a fine. Section 13states that a Court must regard a fine as the appropriate sentence for a particularoffence unless satisfied that the purpose or purposes for which the sentence imposedcannot be met by imposing a fine, or the Court is satisfied that any of the principles ins 8 of the Sentencing Act make a fine inappropriate. Section 8(g) also provides that acourt must impose the least restrictive outcome that is appropriate in thecircumstances.[15] Counsel for the respondent concedes that he has been unable to identify a casein this Court where 12 months' supervision was explicitly upheld for a second offenceunder the Land Transport Act 1998. However, that is not a ground in and of itself fora successful appeal.[16] The Judge clearly considered whether a fine would be appropriate. She heardthat the appellant had been unwell, having spent some time in hospital and that he wasnot working. Although a substantial fine is often imposed for a second drink driveoffence, that does not always have to be the case. Having heard something of theappellant's circumstances, the Judge chose not to impose a monetary penalty on him.It appears denunciation and deterrence were the dominant purposes of the Judge's6 Walsh v Police [2014] NZHC 320.7 McLachlan v Police [2017] NZHC 805.8 Callaghan v Police [2021] NZHC 2060.decision. She chose not to impose a fine, but still needed to deter the appellant fromreoffending. She stated he had not learnt his lesson from last time.[17] Although counsel for the appellant says he would prefer a fine to be imposed,there is no evidence before the Court of his inability to complete a sentence ofsupervision.Result[18] No error on the part of the Judge has been shown. The appeal is dismissed.____________________________Woolford J