MORADI v POLICE [2020] NZHC 2276

MORADI v POLICE [2020] NZHC 2276 [2 September 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2020-404-000248[2020] NZHC 2276BETWEEN MOSTAFA MORADIAppellantAND NEW ZEALAND POLICERespondentHearing: 31 August 2020Appearances: Appellant in personR Belcher for RespondentJudgment: 2 September 2020JUDGMENT OF PAUL DAVISON JThis judgment was delivered by me on 2 September 2020 at 3:00 pmpursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors:Crown Solicitor, AucklandIntroduction[1] Mostafa Moradi (the appellant) appeals his sentence of a $450 fine for onecharge of driving with excess breath alcohol.Background[2] On 24 June 2019, at approximately 1.30 am, the appellant drove his motorvehicle a short distance on Remuera Road. He was stopped by Police who observedthat he exhibited signs of recent consumption of alcohol. Breath alcohol testingprocedures were undertaken and the results showed he had a breath alcohol level of476 micrograms of alcohol per litre of breath, being 226 micrograms over the legallimit. He was charged with committing his first offence under s 56(1) of the LandTransport Act 1998. He pleaded guilty to the charge on 25 September 2019.[3] The maximum penalty for a first offence under s 56(1) is imprisonment for aterm not exceeding three months or a fine not exceeding $4,500.1 The charge alsoengages the penalty of mandatory disqualification from holding or obtaining a driverlicense for 6 months or more.2 The Court has a discretion under s 81 of the LandTransport Act 1998 not to order disqualification where, for special reasons relating tothe offence, it thinks fit to order otherwise.3[4] On 28 May 2020, the appellant appeared before Judge N R Dawson in theDistrict Court at Manukau.4 Judge Dawson observed that Mr Moradi's matter hadbeen adjourned on four previous occasions to enable him to file an application for adischarge without conviction pursuant to s 106 of the Sentencing Act 2002, togetherwith an application pursuant to s 81 that he not be disqualified from driving, butdespite being given those opportunities, he had failed to take any steps to do so. TheJudge declined the appellant's application for yet a further adjournment to enable theapplications to be made, saying that he was not prepared to allow the matter to go onany further.1 Land Transport Act 1998, s 56(3)(a).2 Land Transport Act 1998, s 56(3)(b).3 Land Transport Act 1998, s 81.4 Police v Moradi [2020] NZDC 12440.[5] The Judge then proceeded with sentencing. He noted that the appellantaccepted the prosecution summary of facts and also noted the submission made by theappellant's counsel that the appellant had only driven a very short distance because hewas moving his vehicle from where it had been blocking a parking space. The Judgealso noted that the appellant works as a taxi driver and that his driver's licence wasvery important to him. He took into account, to the appellant's credit, that theappellant had no previous convictions, and he imposed a fine of $450, and ordered theappellant to pay court costs of $130. Judge Dawson further found that there werespecial reasons relating to the offence such that he did not disqualify the appellantfrom holding a driver licence.5Approach on appeal against sentence[6] An appeal against sentence is governed by the Criminal Procedure Act 2011.Section 250(2) provides that the Court must allow an appeal against sentence ifsatisfied that for any reason, there is an error in the sentence imposed on conviction,and a different sentence should be imposed. In any other case, the Court must dismissthe appeal.6[7] The Court of Appeal in Tutakangahau v R confirmed that s 250(2) was notintended to change the previous approach taken by the courts under the SummaryProceedings Act 1957.7 As such, the measure of error that must be shown, is that thesentence is "manifestly excessive".8 The High Court will not intervene where thesentence is within the range that can properly be justified by accepted sentencingprinciples. Whether a sentence is manifestly excessive is to be examined in terms ofthe sentence given, rather than the process by which the sentence was reached.5 At [5].6 Criminal Procedure Act 2011, s 250(3).7 Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [26] – [27].8 At [26] – [27].SubmissionsFor the appellant[8] The appellant is self-represented. He made oral submissions with theassistance of an interpreter who translated from Farsi to English.[9] In his Notice of General Appeal against sentence, the appellant states that thegrounds of his appeal are that the District Court Judge did not have the fullcircumstances before him due to counsel's failure to follow instructions. Theappellant's written submissions are set out in an email he sent to the Crown Solicitoron 8 August 2020.[10] The appellant says that on the night of 24 June 2019, he and his school-agedson attended a party at an address in Remuera Road. They were both intending to staythe night, and there were other school-aged children present. The appellant says that,as he was intending to stay the night at the address and drive no further that night, heconsumed alcohol. However, later during the evening, a dispute arose with theoccupants of a neighbouring property who had complained of the noise being made.The dispute escalated and one of the young men at the party was punched in the face,resulting in the Police being called. After the Police had departed and matters hadsettled down, the appellant says the owner of the house asked him to move his carfrom where it was blocking the driveway, in case the downstairs neighbours wantedto leave early the next morning. The appellant says that he and his son then drove hiscar out of the driveway onto Remuera Road. The appellant says that he intended todrive only a short distance beyond the bus stop directly outside the property, so as topark the car before returning to the house. He says that almost immediately after hedrove onto the road he was stopped by the Police and asked to undergo a breath alcoholtest.[11] The appellant says that he had several different lawyers over the course of theproceedings and that although he had told them the circumstances in which he hadcome to be driving, they had not provided his explanation to the Court. In his writtenand oral submissions, the appellant says that, prior to being sentenced on 28 May 2020,he had been to Court numerous times for the matter and this had resulted in his sonmissing school on those days. He says that he has been living in New Zealand for 18years and he does not want to be placed on a "black list" as a result of this driving,because he does not consider himself to have done anything wrong.For the respondent[12] Mr Belcher, for the respondent, submits that there was no error in JudgeDawson's decision, and the sentence he imposed is not manifestly excessive.[13] Mr Belcher submits that there is no guideline judgment pertaining to first-timeexcess breath alcohol offenders.9 He cites Murphy v Police and Bool v Police as twoexamples of sentences imposed in cases of broadly similar offending.10(a) In Murphy v Police, Justice Faire considered that a sentence of a $1,000fine and six-month disqualification on an excess breath alcohol chargewould have been appropriate for Mr Murphy's offending.11 MrMurphy was not a first-time offender, although his previous bloodalcohol offending had occurred some ten years earlier. A member ofthe public had reported his erratic driving to Police. Police found MrMurphy sitting in the backseat of his car with a passenger in a publiccarpark. His breath alcohol content was found to be over the limit, andMr Murphy admitted to driving to the carpark two hours earlier.(b) In Bool v Police, Justice Collins sentenced Mr Bool to a fine of $800on his first offence against s 56(1) of the Land Transport Act 1998. MrBool had driven with excess breath alcohol under the belief that heneeded medical attention following an assault. His breath alcoholcontent was 638 micrograms of alcohol per litre of breath.[14] Mr Belcher accepts that the gravity of the appellant's offending was low.However, he submits that driving on a road with excess breath alcohol nonetheless9 Clotworthy v Police (2003) 20 CRNZ 439 applies to third or subsequent offences.10 Murphy v Police [2014] NZHC 2835; Bool v Police [2013] NZHC 2548.11 Justice Faire noted that he would have imposed a sentence of $1,000 in place of the sentence ofcommunity work however, the sentence of community work had been part served. Accordingly,the Judge quashed the sentence of community work and did not impose a fine.presents a risk to the health and safety of road users. He submits that a risk was presentin this case notwithstanding the short distance the appellant travelled on the road whilemoving his car towards a parking place. He submits that it was appropriate to imposea fine to denounce and deter such conduct,12 and further that, having regard to thesentences imposed for similar offending, the level of fine was appropriate.Analysis[15] For the reasons outlined by Mr Belcher, I am not satisfied that there was anyerror in the sentence imposed in the District Court. The $450 fine imposed by theJudge is well below the amount of the fines imposed in the cases of Murphy and Boolwhere the driving was more extensive and consequently presented a much greater riskto other road users.[16] Here, the risk to other road users was comparatively low, but any driving by analcohol impaired driver involves risk to other road users. The amount of the fineimposed is clearly within the range for sentences for offending of this kind and gravityand is in accordance with the sentencing objective of consistency with sentencesimposed for similar offending.13 Moreover, the Judge accepted the appellant'sexplanation that he was relocating his car from the private driveway to park it on theroadside so as not to block the driveway, and found there were special reasons why hewould not disqualify the appellant from driving. The Judge's finding of specialreasons recognised that the circumstances involved in the driving were such as did notwarrant the imposition of a period of disqualification.[17] The appellant's submission that he had done nothing wrong and that hislawyers had failed to inform the Court of his explanation of why he was driving arenot matters that are relevant to his appeal against sentence. The appellant pleadedguilty to the charge of driving with excess breath alcohol when he appeared before theDistrict Court on 25 September 2019, and, at the sentencing hearing on 28 May 2020,his counsel advised the Judge that he accepted the prosecution summary of facts. Inthese circumstances, the appellant's appeal against the sentence imposed can only12 Sentencing Act 2002, ss 7 and 8.13 Sentencing Act 2002, s 8(a) and (e).succeed if he can show that the sentence imposed on him by Judge Dawson wasmanifestly excessive. As he has failed to establish that it is manifestly excessive, hisappeal must fail.Result[18] The appeal is dismissed._____________Paul Davison J