FLAVELL v POLICE [2019] NZHC 254

FLAVELL v POLICE [2019] NZHC 254 [25 February 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2018-404-432[2019] NZHC 254BETWEEN RUSIATE FLAVELLAppellantAND NEW ZEALAND POLICERespondentHearing: 25 February 2019Appearances: S Mutch for the AppellantE Mok for the RespondentJudgment: 25 February 2019ORAL JUDGMENT OF GAULT JSolicitors / Counsel:Mr S Mutch, Barrister, Auckland, on instructions from Mr B Meyer, Barrister, AucklandMs E Mok, Meredith Connell, Office of the Crown Solicitor, Auckland[1] Mr Flavell pleaded guilty in the District Court to one charge of driving withexcess breath alcohol. On 19 December 2018 Judge S J Maude sentenced Mr Flavellto 60 hours community work and disqualified him from driving for 13 months.Mr Flavell appeals on the ground that sentence is manifestly excessive.[2] The summary of facts records that at 8:21 pm on 6 December 2018 policeobserved a vehicle evade a compulsory breath checkpoint. Police gave chase andfound Mr Flavell's vehicle parked. Mr Flavell was approximately 50 metres awayfrom the vehicle. Mr Flavell was breath tested and his breath was found to contain597 micrograms of alcohol per litre of breath, in excess of the legal limit of 400micrograms per litre. Mr Flavell admitted the facts as outlined and explained he washeading home after a few drinks after work.[3] The Judge's sentencing notes are unavailable due to a transcriptionmalfunction. In a busy list, it may be that there were very limited sentencing remarks.The argument on appeal[4] Mr Mutch, for the appellant, submitted that the imposition of 60 hourscommunity work is manifestly excessive and inconsistent with s 8(g) of theSentencing Act 2002 (the Act). He submitted a financial penalty by way of a finewould have been more appropriate, especially having regard to the appellant's abilityto pay such a fine immediately. Mr Mutch also submitted the disqualification for 13months is manifestly excessive. He submitted a disqualification of up to 10 monthswould have been more appropriate. Mr Mutch cited three similar cases,1 which I haveconsidered for consistency.2[5] Ms Mok, for the respondent, submitted that the sentence of 60 hourscommunity work was not manifestly excessive. The respondent accepts there is someforce in the appellant's submission that the period of disqualification was outside ofthe range typically imposed in similar cases, albeit by a relatively small margin.1 Burke v Police HC Christchurch CRI-2007-409-165, 20 September 2007; Palmer v Police HCAuckland CRI-2009-404-262, 5 February 2010; and Blyth v Police [2012] NZHC 875.2 Section 8(e) of the Sentencing Act 2002.Ms Mok acknowledged that a period of disqualification in the vicinity of nine or10 months would have been more appropriate in the circumstances.Decision[6] In the absence of the Judge's sentencing notes, I do not know whether the Judgespecifically formed a view as to whether the purpose or purposes for which sentencewas being imposed could be achieved by imposing a fine. As a result, I approach thematter afresh.[7] The respondent acknowledges the cases cited by the appellant, which indicatethat, typically, a fine together with disqualification is the usual sentence imposed forsecond drink driving offences. The respondent also acknowledges s 13 of the Actwhich provides:13 Sentence of fine(1) If a court is lawfully entitled under this or any other enactment toimpose a fine in addition to, or instead of, any other sentence, the courtmust regard a fine as the appropriate sentence for the particularoffence unless—(a) the court is satisfied that the purpose or purposes for whichsentence is being imposed cannot be achieved by imposing afine; or(b) the court is satisfied that the application of any of theprinciples in section 8 to the particular case make a fineinappropriate; or(c) any provision applicable to the particular offence in this orany other enactment provides a presumption in favour ofimposing any other sentence or requires the court to imposeany other sentence; or(d) the court is satisfied that a fine, on its own or in addition to asentence of reparation, would otherwise be clearly inadequatein the circumstances.[8] However, the respondent submits that, although a fine is the usual type ofsentence imposed, it does not automatically follow that the sentence of communitywork imposed in this case was manifestly excessive.[9] The respondent submitted that the offending was moderately serious given thealcohol reading of 597 micrograms and the appellant's attempt to evade. I particularlyagree the attempt to evade should be regarded as an aggravating factor.3[10] Mr Flavell has four previous driving related convictions, including one ofrefusing a request for a blood specimen in January 2013 for which he was ordered topay a fine of $1,000 and court costs, as well as being disqualified from driving for sixmonths.[11] In these circumstances, the Judge may well have considered, in terms of s 13,that a fine would not meet the principles and purposes of sentencing. However, asindicated, in the absence of the Judge's sentencing notes, I consider this questionafresh.[12] I consider that the Judge's sentence is not manifestly excessive or wrong inprinciple. While another Judge may have imposed a fine, I consider that in thecircumstances s 13 did not require a fine to be imposed. The aggravating feature ofthe attempt to evade combined with the previous convictions, the most relevant ofwhich also involved refusing to co-operate with a police request and for which a finewas imposed, although almost six years prior, satisfy me that a fine in this case wouldnot achieve the purposes of s 7, in particular holding Mr Flavell accountable,promoting a sense of responsibility, denouncing the conduct and deterrence. Eventhough Mr Flavell works six days a week, community work is the least restrictivesentence appropriate in the circumstances.4[13] The amount of community work – 60 hours – was relatively modest comparedwith the cases cited.5[14] In relation to the period of disqualification, the respondent accepted that thecases cited indicate that on a second conviction for driving with excess breath or bloodalcohol, generally a period of disqualification in the range of six to 12 months will be3 Kohu v Police [2013] NZHC 2758.4 Section 8(g) of the Sentencing Act 2002.5 120 hours in Burke v Police, above n 1, and Palmer v Police, above n 1, and 80 hours in Blyth vPolice, above n 1.appropriate. I accept that the period of 13 months' disqualification imposed by theJudge was outside this range, albeit by a small margin having regard to previousperiods of disqualification of six and seven months. In the circumstances, I considerthat a shorter period of disqualification in the vicinity of 10 months would have beenmore appropriate.Result[15] The appeal is allowed to the extent that the sentence of 13 months'disqualification is quashed, and a sentence of 10 months' disqualification is imposed.In all other respects the sentence stands.________________________________Gault J