LEE v NEW ZEALAND POLICE [2023] NZHC 2906

LEE v NEW ZEALAND POLICE [2023] NZHC 2906 [17 October 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI 2023-404-443[2023] NZHC 2906BETWEEN TYRESE LEEAppellantAND NEW ZEALAND POLICERespondentHearing: 16 October 2023Appearances: K Hamblin for the appellantH Bell for the respondentJudgment: 17 October 2023JUDGMENT OF CAMPBELL J[Appeal against Sentence]This judgment was delivered by me on 17 October 2023 at 3.30 pmRegistrar/Deputy Registrar[1] Mr Lee pleaded guilty to one charge of driving with excess breath alcohol.1Judge J Jelaš sentenced him to 50 hours of community work and 12 monthsof intensive supervision and disqualified from driving for seven months. The Judgealso remitted $5,000 of fines, and in lieu thereof imposed 110 hours of communitywork (to be completed concurrently with the other 50 hours).2[2] Mr Lee appeals against the sentences of 50 hours of community work and 12months of intensive supervision and against the decision to impose 110 hours ofcommunity work in lieu of $5,000 of fines.Background[3] In the early hours of 14 August 2023, Mr Lee was driving a car in centralAuckland. He was stopped by Police. Evidential breath test procedures wereadministered. Mr Lee returned a result of 589 micrograms of alcohol per litre ofbreath. The threshold for an offence under s 56 of the Land Transport Act 1998 is 400micrograms of alcohol per litre of breath.[4] Mr Lee was 20 years old at the time of the offending. He had no previousconvictions. He did have a number of demerit points and had accumulatedapproximately $9,000 in fines. He was paying those fines off at $60 per week. Hewas in employment and was supporting his partner and their infant daughter.District Court decision[5] Judge Jelaš noted that Mr Lee had an extremely poor driving history. HerHonour said that Mr Lee needed to look at why he had an inability to drive inaccordance with the road rules. However, the Judge also recorded that Mr Lee hadnever been before the court before, was working and had a family to support. It wasimportant that he keep his job.1 Land Transport Act 1998, ss 56(1) and (3), for which the maximum penalty is three months'imprisonment or a fine not exceeding $4,500. The court must also order the person to bedisqualified from holding or obtaining a driver's licence for six months or more.2 New Zealand Police v Lee [2023] NZDC 18191.[6] In addition to disqualifying Mr Lee from driving for seven months, the Judgesentenced him to community work of 50 hours, commenting that it was not a goodidea to impose another fine on him given he had such a large amount of finesoutstanding. Her Honour also imposed intensive supervision for 12 months, askingprobation to focus on a driving-related programme and any other programmes ortreatments or counselling Mr Lee needed.[7] The Judge also remitted $5,000 of Mr Lee's fines, imposing 110 hours ofcommunity work in lieu of those remitted fines.Principles governing sentence appeals[8] For a sentencing appeal to succeed the sentence generally must be shown to bemanifestly excessive or wrong in principle.3 The Court will not intervene where thesentence is within the range that can properly be justified by accepted sentencingprinciples. Whether a sentence is manifestly excessive generally depends on the endsentence imposed, rather than the process by which it is reached.4Grounds of appeal[9] Ms Hamblin, counsel for Mr Lee, submitted that there were two errors in JudgeJelaš's sentencing. First, she submitted that the Judge ought to have imposed a finefor the excess breath alcohol charge rather than imposing community work orintensive supervision. She submitted that a sentence of a fine was the least restrictivesentence that was appropriate in the circumstances. Secondly, she submitted that givenMr Lee's personal circumstances (with a dependant partner and infant daughter andwith employment obligations) the Judge ought not to have remitted the fines inexchange for 100 hours of community work.Did the Judge err in imposing sentences of community work and intensivesupervision?[10] The effect of s 13 of Sentencing Act 2002 is that, if the court is entitled toimpose a fine, it must regard the fine as the presumptively appropriate sentence. That3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27] and [31]–[35].4 At [36].presumption can be displaced only if a fine is inappropriate for one of the reasons setout in s 13, or if the court is satisfied (in terms of s 14) that the defendant does not orwill not have the means to pay a fine.[11] Judge Jelaš did not refer expressly to ss 13 and 14. There is no suggestion fromthe Judge's sentencing remarks that the Judge thought a fine was an inappropriatesentence for any of the reasons set out in s 13 (and, on the appeal, counsel for thePolice did not suggest that any such reasons applied). Section 14 is engaged only ifthe court is first satisfied that the defendant does not or will not have the means to paythe fine that would otherwise be imposed. Judge Jelaš did not make such a finding.Her Honour said that she did not think it was a good idea to impose another fine onMr Lee given that he had such a large amount outstanding. But that is not the same asfinding that Mr Lee did not or would not have the means to pay a fine. The Judge didnot refer to any evidence that would support such a finding, other than the size of theoutstanding fines. But Mr Lee is in employment and has been paying his fines off at$60 per week.[12] A fine was therefore the presumptively appropriate sentence for Mr Lee'sdriving charge. There was nothing to displace that presumption in this case. Mr Bell,counsel for the Police, acknowledged that a fine (together with disqualification) is theusual sentence imposed on both first and second drink-driving offences. This was MrLee's first such offence. Mr Bell also accepted that, given the absence of anyaggravating factors and the level of alcohol being at a relatively low level, a fine wouldhave been the appropriate sentence.[13] Further, the sentences of community work and intensive supervision wereparticularly onerous in Mr Lee's circumstances. Judge Jelaš granted Mr Lee a limitedlicence to enable him to maintain his employment and to pick up his daughter fromkindergarten. The limited licence does not provide for him to attend community workor intensive supervision. Those engagements also present a significant challenge toMr Lee keeping his full-time job.[14] I therefore conclude that the Judge erred in imposing a sentences of communitywork and intensive supervision. The appropriate sentence was a fine of $600.Did the Judge Err in imposing community work in lieu of fines?[15] A District Court Judge can substitute community work for fines only in thecircumstances set out, and after following the procedures, in ss 88AE(1)(e) and 106Eof the Summary Proceedings Act 1957. There was no indication that the proceduresset out in those sections were followed or that the criteria in those sections weresatisfied.[16] Judge Jelaš was clearly intending to assist Mr Lee by remitting a large portionof his outstanding fines in exchange for community work. But, for the reasons set outearlier, community work is a considerable imposition on Mr Lee (and his dependentfamily).Result[17] I allow Mr Lee's appeal.[18] I quash the sentences of 50 hours of community work and intensive supervisionand substitute a fine of $600 in their place. I restore the $5,000 of fines that the Judgeremitted and quash the 110 hours of community work that was imposed in substitutionfor them.______________________Campbell J