FINDLEY v POLICE [2023] NZHC 2960

FINDLEY v POLICE [2023] NZHC 2960 [24 October 2023]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGĀREI-TERENGA-PARĀOA ROHECRI-2023-488-69[2023] NZHC 2960BETWEEN PAUL FINDLEYAppellantAND NEW ZEALAND POLICERespondentJudgment: 24 October 2023JUDGMENT OF BREWER JThis judgment was delivered by me on 24 October 2023 at 10.30 amRegistrar/Deputy RegistrarSolicitors:Marsden Woods Inskip Smith (Whangārei) for RespondentCopy to Appellant in personIntroduction[1] Mr Findley appeals the sentence imposed on him by Judge T Bayley on26 September 2023.1[2] Mr Findley represents himself. In his notice of appeal he ticked the "No" boxin answer to the question: "Do you request an oral hearing?" Mr Findley did notappear on 13 October 2023 when the case was first called. I adjourned the call of thecase to 20 October 2023 and said that if Mr Findley did not appear I would take it thathe has filed all the material he wants the Court to take into account. The appeal wouldthen be decided on the papers.[3] Mr Findley did not appear on 20 October 2023. I was advised by the registrythat Mr Findley had been spoken to by telephone and been told the date and time ofthe call of his case.[4] I will decide the appeal on the papers.Background[5] Mr Findley was charged with failing to permit a blood specimen to be takenafter having failed to satisfactorily complete a compulsory impairment test and havingtwice previously been convicted of similar offending.2 He pleaded guilty.[6] The summary of facts to which Mr Findley pleaded guilty records:On 13 June 2023, the Defendant was the driver of a Ford Focus motor vehicle,registration ERA255, on Hatea Drive, Whangārei.The Defendant drove into a traffic scene controlled by Police following avehicle accident. He has ignored Police instruction regarding his movementin the area.When spoken to, the Defendant appeared erratic in his mannerisms andbehaviour.1 Police v Findley [2023] NZDC 22289.2 Land Transport Act 1998, s 60(1)(a) and 60(3). The maximum penalty is two years' imprisonmentor a fine not exceeding $6,000. The Judge is required to order a disqualification period fromholding or obtaining a driver licence of more than one year.He was taken through a Compulsory Impairment Test which he has failed tocomplete to a satisfactory manner and when required to provide a bloodsample for analysis has refused to do so.[7] Judge Bayley noted that the most recent of Mr Findley's previous convictionswas in 2018.3 On both occasions Mr Findley was fined. The Judge said:[3] Given it is a third conviction for offending of this type, I think weextend some help to you by way of a sentence of supervision, so that is nota financial penalty; a sentence of supervision with conditions that you areto attend any counselling, treatment or programmes as directed byProbation.[4] I am also persuaded by Mr Day to backdate your disqualificationperiod. The supervision sentence is going to be seeing you attend probationand they will help you with any counselling or treatment. They might beable to help you with some skills so you can get yourself back intoemployment, all right, so it is not a fine today. Supervision, you will havean order to sign before you go. I must disqualify you for a period of oneyear and one day but I backdate it, pursuant to s 85 of the Act, to being on13 June. So that effectively takes off six months of what would have beenquite a lengthy disqualification period. You will be disqualified thereforethrough to 14 June 2024.[8] In his notice of appeal, Mr Findley said:The judge thought I might be helpfull (sic) for me to report every week for9 months. I do not drink or use any drugs so this 'extra sentence' is nothelpfull to me at all rather an extreme inconvenience for me. Plus there is arisk of breach which will result in further punishment.[9] Judge Bayley had before her a letter from Mr Findley which the Judgeacknowledged as providing some context as to what happened. In it, Mr Findleyexplained that he has mental health issues. In his notice of appeal he attributed hisbehaviour to the effects of prescribed medicines.[10] Crown counsel submits that the Judge did not err in her assessment of thefeatures relevant to the offending and to the appellant.Discussion[11] This is Mr Findley's third conviction for this type of offending. Previously hewas fined. A sentence of supervision was not outside the Judge's sentencing3 The first qualifying conviction was in 2009.discretion, and the Judge intended the sentence to be rehabilitative given Mr Findley'spersonal circumstances. The period of nine months is not excessive given themaximum penalty.[12] The principal reason for Mr Findley's appeal, it seems, is that he believes thatthe Judge sentenced him to report every week during the term of supervision. Crowncounsel has helpfully provided me with a copy of the Judge's order for the sentence ofsupervision. It does not require weekly reporting. The order requires Mr Findley toreport to a probation officer in his residential area as soon as practicable, but not laterthan 72 hours, after the start date of the sentence. The Court imposed specialconditions requiring Mr Findley to undertake such counselling and/or substance abusetreatment as his probation officer directs.[13] The standard conditions include that Mr Findley must report to his probationofficer when required.[14] Mr Findley's assertion that he does not drink or take drugs is inconsistent withhis criminal history.Decision[15] An appeal against sentence proceeds by way of rehearing. I have consideredthe material which was before Judge Bayley and I have taken into accountMr Findley's notice of appeal and the Crown's submissions. I see no error in JudgeBayley's decision. The end sentence of nine months' supervision is well within therange of sentence available to the Judge and it is intended to be rehabilitative.Mr Findley will have to report to his probation officer only for purposes associatedwith his sentence. It is not a manifestly excessive sentence.[16] The appeal is dismissed.________________________________Brewer J