Rhee v Police [2016] NZHC 818 (27 April 2016)

Last Updated: 6 May 2016

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2016-419-3 [2016] NZHC 818

BETWEEN	SANGIL RHEE Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	27 April 2016
Appearances:	Appellant in person C Ure for the Respondent
Judgment:	27 April 2016

_{ORAL JUDGMENT OF WOODHOUSE J}

Parties / Solicitors: The Appellant

Ms C Ure, Almao Douch, Office of the Crown Solicitor, Hamilton

RHEE v POLICE [2016] NZHC 818 [27 April 2016]

[1] Mr Rhee pleaded guilty to a charge of driving with excess breath alcohol having two previous relevant convictions – one in 1997 and the other in 2004. He was sentenced to 200 hours community work and mandatory disqualification of 12 months and 1 day. Mr Rhee appealed against the sentence.

[2] The grounds of appeal stated in Mr Rhee’s notice of appeal were:

My submitted statements have been ignored and the sentence is more or less unfair.

[3] Mr Rhee submitted a letter to this Court which clearly was intended to be the written submissions on appeal required in terms of a timetable direction. In this letter Mr Rhee said that he and a friend had both decided in April 2015 to stop drinking because of health concerns of each of them. I interpolate here that the present offence occurred on 4 July 2015, at 12:30 am. The breath level was 611 micrograms. In relation to this Mr Rhee said in his letter by way of submission:

• It was the first time for my friend to suggest drinking alcohol for our two friendship in his home. According to my friend, the date offered by him was his birthday. In fact, as a social being, I could not help but avoid his suggestion for our friendship.

• Initially before our drinking, we fully discussed for the pursuit of the safe driving. As a result, the method resulted from driving together in order to support my driving safely. I did not have enough money to take a taxi on that night.

[4] Mr Rhee added that he drove out of loyalty to his wife. He then suggested that he might have avoided the police road block, but he chose not to for moral reasons.

[5] I agree with the written submission for the respondent that those submissions of Mr Rhee do not support an argument for a reduced sentence. I also agree that it amounts to a proposition that it was convenient for him to drink then drive when he did and that he had actually planned to do so. This is what Mr Rhee has said.

[6] The disqualification of more than one year was mandatory. The minimum was imposed.

[7] In respect of the community work sentence it is convenient to quote the full statement of Judge A S Menzies on sentencing. He said:¹

[1] Mr Rhee you have pleaded guilty to a charge of excess breath alcohol in its aggravated form because of two previous convictions which were in 1997 and 2004. As your counsel has indicated they are now somewhat distant and your counsel therefore suggests the penalty could be a fine, which would normally be the case if this were a first offence.

[2] In my view I cannot disregard entirely the fact that it is a third offence and the level at 611 is starting to climb, therefore my view is that the appropriate outcome is community work and a disqualification. I am going to require you to undertake 200 hours’ community work with the authorisation to convert to training.

[3] You are disqualified for the minimum mandatory period of 12 months and one day from today.

[8] The Judge was exercising a discretion. Although there is no information in the judgment in respect of matters that the Judge may have taken into account, it was well within range. It was not manifestly excessive and it would have to be manifestly excessive to set aside that part of the sentence. There is no basis for reducing or altering the sentence of community work.

[9] Although the matters I have so far referred to are all of the matters put before the Court by Mr Rhee in writing, Mr Rhee, appearing on his own behalf, made further submissions. I considered it important to explore the matters put before the Court by Mr Rhee as fully as reasonably possible, but I will condense these matters to what seem to be the essential points.

[10] One point made by Mr Rhee was that he did not get adequate advice from the lawyer who appeared on his behalf. In some circumstances a contention of that sort might require an adjournment, a request from the appellant to waive privilege, and then an opportunity given to the respondent to obtain affidavit evidence from defence counsel. However, following a reasonably full discussion with Mr Rhee on the matters of particular concern to him, I have concluded that this is not required in order to do justice. This is because the specific matters relating to the sentence of concern to Mr Rhee do not require evidence from defence counsel in order for them

_{to be properly dealt with.}

¹ Police v Rhee [2016] NZDC 705.

[11] Mr Rhee said that he had received advice from his doctor that the level of alcohol in the breath can increase over time and the relevant test was not taken for approximately one hour. The statutory provisions and the cases make it abundantly clear that that does not provide a defence. There is, and was, no challenge to the actual level.

[12] Another point made by Mr Rhee, and clearly a matter of particular concern to him, is that the disqualification from driving is causing real difficulties for him. That is not a matter which can result in the disqualification being set aside or reduced. As I have already recorded, disqualification for a period in excess of 12 months is mandatory. Mr Rhee might have made an application on sentencing for relief under s 81 of the Land Transport Act on the basis that special reasons relating to the offence justified not imposing disqualification. I am satisfied that, even if there was some error by defence counsel, (and I emphasise that there is no evidence of that at all), in not at least exploring s 81, it could not have succeeded. Mr Rhee’s own statements to this Court relating to the circumstances of the offence make it clear that there were, in light of the many cases on s 81, no special circumstances. The position in fact was the reverse.

[13] The remaining matter relating to sentence is the 200 hours of community work. Mr Rhee said that his health is such that he is not able to undertake heavy work. That is a matter which can be accommodated by the Corrections Department as the authority responsible for managing community work. In this regard I stood the hearing down to enable Ms Ure, for the respondent, to make enquiries of the responsible Corrections Department officer in Hamilton. Ms Ure advised me that the Department in Hamilton can make provision for light work for those sentenced to community work. In order for this to be considered a medical certificate will have to be provided and this will have to address, with sufficient specificity, the relevant aspects of incapacity to undertake different types of work. In addition, the Corrections Department has power to remit up to 10% of the sentence. Apart from this, if Mr Rhee’s health meant that he was not able to undertake any community work, an appropriate application to the Court for review of the sentence could be made. However, there was no suggestion from Mr Rhee that he is incapacitated to

that extent. Indeed, he made clear in some of his submissions that he is undertaking university studies which are reasonably onerous.

[14] I should have mentioned in relation to the disqualification that there is also the provision in the Act for Mr Rhee to apply for a limited licence.

[15] For all of these reasons I am satisfied that there was no error by the Judge and no basis for exploring any question of error by counsel. Accordingly, the appeal is dismissed, but Mr Rhee can, of course, explore the alternative possibilities that have

_{now been reasonably fully outlined to him.}

Woodhouse J