A v Police HC Auckland CRI 2010-404-145

[2010] NZHC 1364

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2010-404-145

A

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         21June 2010

Appearances: M E Read for the Appellant

K V Mills for the Respondent

Judgment:      22 June 2010 at 2:00 pm

RESERVED JUDGMENT OF COURTNEY J

This judgment was delivered by me on 22 June 2010

at 2:00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date……………………….

Solicitors:           Crown Solicitors, PO Box 2213, Auckland 1140

Counsel:             M E Read, Level 8, Hobson Chambers, 28 Hobson Street, Auckland 1140

A V POLICE HC AK CRI 2010-404-145  22 June 2010

[1]      Mr  A    was  disqualified  from  driving  for  one  year  and  one  day following conviction in the District Court at Manukau on his third charge of driving with  excess  blood  alcohol  under  s  56(2)  Land  Transport  Act  1998  (LTA). Judge Clapham refused his application under s 94 LTA for the disqualification to be substituted with a community based sentence.  Mr A   appeals that decision.

[2]      As is apparent from the Judge’s memorandum 28 April 2010, Mr A  ’s application was dealt with on a very busy list day in the District Court which gave little time for reflection by the sentencing Judge.  The Judge’s essential reasons are captured at [9] of his decision:

[9]       In my view the overriding interests here are those of the public.  It is inappropriate for a third offender in my view to have the advantage of this section when the level is so high that at 600, where there is no urgency or other requirement relating to the circumstances of the driving, that a straight forward requirement, as it is on all members of the public, not to drink and drive and particularly not to drive in excess of the permitted limits.

[3]      Mr Read submitted that there were two errors of fact made by the sentencing Judge.   The first was that he described the appellant as having acknowledged consuming “three bottles of beer”.   In the appellant’s affidavit, however, his concession was to having consumed no more than “four pints”.  This error does not, however,  appear to have had any material effect on any aspect of the decision because whatever amount Mr A   consumed is reflected in the breath alcohol level.

[4]      The second error of fact the Judge is said to have made was to have described the breath alcohol reading of 612 micrograms of alcohol per litre of breath as being “so high”.   Mr Read submitted that when the level was considered alongside the level required for confiscation under s 95 (650) and the breath alcohol limit under s 56 (400) a reading of 612, whilst not low, was not high either.  I do not consider that the description used constituted an error by the Judge.  A reading of 612 against the permitted level of 400 is high.

[5]      I do, however, accept Mr Read’s submission that there were errors of law made. The first was not taking proper account of the evidence as to the effect of

disqualification on Mr A  . The major plank of Mr A  ’s application under s 94 was the likely risk to his employment if an order for disqualification was made because driving formed an important part of his work.  Mr A   submitted an affidavit by him and one by his employer in support of this ground.  However, at [4] the Judge referred only to the “affidavit”.  Although the Judge did not identify which affidavit he was referring to, the lack of any reference at all to the evidence about Mr A  ’s employment strongly suggests that the employer’s affidavit was overlooked.

[6]      Secondly, although the Judge referred to the decision in Clotworthy v Police[1] and Mr Read also relied on that decision in his written submissions, it is apparent that  Clotworthy  has  no  direct  relevance  to  an  application  under  s  94;  it  was concerned with the relevant factors in sentencing for multiple excess breath alcohol offences.   The factors to be considered for s 94 application are those identified at s 94(1)(b).   Although there is, as might be expected, some overlap between the factors identified in Clotworthy and those identified in s 94(1)(b), to the extent that the Judge relied on Clotworthy as opposed to referring specifically to the factors identified in s 94(1)(b), he was in error.

[1] Clotworthy v Police HC Wanganui CRI-2003-483-13, 25 September 2003, Wild J.

[7]      Because of these errors, I turn to consider the merits of the application afresh. Section 94 permits substitution of a commonly based sentence of disqualification where the prerequisites sets out in s 94(1) are satisfied:

(1)    This section applies if—

(a)   The offender has previously been ordered on conviction for an offence to  be  disqualified from holding or  obtaining a  driver licence; and

(b)   The court, having regard to—

(i)   The circumstances of the case and of the offender; and

(ii)  The  effectiveness  or  otherwise  of  a  previous  order  of disqualification made in respect of the offender; and

(iii) The  likely  effect  on  the  offender  of  a  further  order  of disqualification; and

(iv) The interests of the public,—

considers that it would be inappropriate to order that the offender be disqualified from holding or obtaining a driver licence; and

(c)   court  considers  that  it  would  be  appropriate  to  sentence  the offender to a community-based sentence in accordance with Part

2 of the Sentencing Act 2002

[8]      Section 94(1)(a) was, of course, satisfied. But the Judge had to be satisfied under s 94(1)(b) that disqualification would be inappropriate. Only if satisfied on that score would it be possible to go on to consider whether a community based sentence would have been appropriate.

[9]      Mr A   relied on s 94(1)(b)(ii), namely that disqualification would have a   disproportionately   harsh   effect   on   him   because   it   would   jeopardise   his employment. Mr A   and his employer, Mr Mortensen, both swore affidavits in which they state that as a part of Mr A  ’s employment he is required to attend to the regular pick-up and delivery of products and also deliver samples and materials to the company’s trade shows and exhibitions.   There is, apparently, no capacity within the company for someone else to assume these responsibilities and if Mr A   were unable to attend to  them, then the  company would need  to employ another person.   That would be regarded with disfavour because of the present economic environment.

[10]     However,  Mr  Mortensen  stops  short  of  giving  any  firm  indication  that Mr A  ’s job would be jeopardised by disqualification.  He describes having to employ  another  person  to  attend  to  the  duties  as  “an  unwelcome  cost”  on  the business, but does not go further to suggest that there might be consequences for Mr A   himself. I do note that in a similar case Tipping J perceived that there might be a reason connected with potential exposure for the employer were such an outcome to be signalled.  However, notwithstanding that possible reason in this case, the evidence falls short of satisfying me that the likely effect of an order for disqualification would be to jeopardise Mr A  ’s present employment. This is all the more so because, as Ms Mills submitted, Mr A   is able to apply for a limited licence which should be able to be couched in terms that accommodate his current work commitments.

[11]    There are no other grounds on which it could be said that a period of disqualification   would   be   inappropriate   in   this   case.   In   the   District   Court Mr A    did  raise  as  a  secondary issue  the  effect  on  his  partner  who  had recently had surgery. However that was nearly a year ago. There was no updating medical evidence and Mr Read did not rely on this aspect on the appeal.

[12]   I do not consider that disqualification was inappropriate. Therefore the prerequisite in s 94(1)(b) was not satisfied and the question whether a community

based sentence would have been appropriate does not arise. The appeal is dismissed.

P Courtney J