B v Police HC Auckland CRI 2009-404-16

[2009] NZHC 36

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2009-404-0016

CRI 2009-404-0017

BETWEEN  B

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         3 February 2009

Appearances: Karen Harding for Appellant

James Carruthers for Respondent

Judgment:      3 February 2009

JUDGMENT OF HARRISON J

SOLICITORS

Warren McFie (Auckland) for Appellant
Meredith Connell (Auckland) for Respondent

COUNSEL Karen Harding

B V POLICE HC AK CRI 2009-404-0016  3 February 2009

[1]      Mr  B    has  filed  two  appeals  in  this  Court.    The  first  of  a substantive nature is against a decision by Judge Roy Wade in the District Court at Manukau on 9 January 2009 refusing an application for an order granting a limited licence for employment purposes following Mr B  ’ third conviction on a charge of driving with excess breath alcohol.   The second and consequential appeal is against  a  later  decision  of  the  same  Judge  on  22 January  refusing  Mr B  ’ application for deferment of the original sentence of disqualification for one year and one day pending determination of the first appeal.

[2]      The registry, with commendable efficiency, has arranged an urgent fixture for the substantive appeal today.   That step has overtaken or subsumed the second appeal, which is dismissed.  As a consequence I am only concerned with the Judge’s refusal to grant a limited licence.

[3]      The circumstances of Mr B  ’ conviction are unexceptional.  He had been drinking with a friend one evening.  He must have consumed a considerable amount of alcohol because his count was 911 milligrams of alcohol per 100 millilitres of blood (more than double the legal limit).   He was apprehended when unwisely he chose to drive home.

[4]      Mr B  ’ counsel, Ms Karen Harding, has filed a comprehensive synopsis of written submissions together with copies of relevant authorities in support of the appeal.   However, it was unnecessary for me to hear oral argument.   The police, represented by Mr James Carruthers, do not oppose Mr B  ’ application for a grant of a limited licence.  Accordingly, I do not need to address the merits of the appeal.

[5]      But, in deference to Judge Wade, I note that his decision to refuse the licence was made on the ground that he was not satisfied that an order granting a limited licence would not be contrary to the interests of public safety: s 105(2)(b) Land Transport Act 1998.  A transcript of the Judge’s exchange with Mr B  ’ previous counsel discloses that he was principally influenced by the facts that, first, this was Mr B  ’ third conviction for driving with excess breath alcohol and, second, his counts in all three cases were high.  The Judge’s brief rationale was to the effect that

Mr B   had not learned his lesson even though he acknowledged the existence of a

21-year gap between Mr B  ’ second and third convictions.   Otherwise there is little to indicate the basis of the Judge’s reasoning.

[6]      Judge Wade was correctly concerned about issues of road safety.   He was conscious of his overriding discretion to refuse Mr B  ’ application for a limited licence.  However, with respect, the Judge failed to ask himself the correct question. The inquiry is not of a general nature into whether or not Mr B   may present a danger to other road users because of his drink driving record.  Instead the inquiry must be focused to whether or not public safety would be endangered if Mr B   drove within the restricted hours of a limited licence; that is, there must be a relationship between the relevant offending and the permitted activity.

[7]      In my judgment the answer to that question must be in the negative.  There is nothing in Mr B  ’ driving record, including his current conviction, which might evidence a pattern of drinking during the daytime or in particular while driving on company business.   I note that on Ms Harding’s responsible advice Mr B   has taken the affirmative step of seeking expert advice from Care NZ about his alcohol problem.   It is comforting to learn from a report provided by Care on 2 February, which was not of course available to Judge Wade, that Mr B   does not have an alcohol dependence.  However, against that is Care’s satisfaction on a readiness to change self-reporting alcohol screening test that Mr B   has experienced a risky pattern of drinking over the past year.  I accept the sincerity of his commitment to dealing with this issue.

[8]      In this respect it is relevant that Mr B   is 48 years of age.  He is employed in a position of responsibility as a sales manager with a plywood timber company. He is required to travel frequently during his working hours.  A licence is essential for his employment.  Evidence produced in the District Court that Mr B   would lose his employment if denied a licence was not challenged by the police.  I am in no doubt that if an order was refused Mr B   would suffer extreme hardship and that his dependants, namely his wife,  child and his own  father,  would  suffer  undue hardship.   The threshold jurisdictional ground for granting a limited licence was plainly made out: s 105(2)(a).

[9]      Thus Mr B  ’ appeal against the District Court’s refusal to grant a limited licence is allowed on conditions as follows:

Purpose

1.Mr B   is authorised to drive for the purposes of his employment as sales representative for Plywood City Ltd (the company) located at 126 Portage Road, Otahuhu, Auckland.  The company is a retailer of plywood and concrete product to the merchant and trade base throughout New Zealand.

2.        Mr B   is authorised to drive between his residence located at

11 Wayne Drive, Mangere East, Auckland, the company’s premises, client’s premises and the premises of suppliers in order to undertake

all the requirements of his employment.

3.Mr B   is not authorised to drive if there is a fully licensed sober driver in the vehicle capable of driving who is authorised to drive the vehicle and is not a client.

4.Mr B   is authorised to drive to and from accommodation and to get  food  within  a  reasonable  distance  when  travelling  out  of Auckland environs for business purposes.

5.Mr  B    is  not  to  enter  licensed  premises  whilst  on  a  limited licence, Monday to Saturday during the authorised hours of the limited licence.

6.Mr B   is not to consume alcohol 12 hours before driving on a limited licence and is not to consume alcohol during the authorised hours of the limited licence.

7.Mr B   is not to be in possession of alcohol during the authorised hours of the limited licence.

Hours

8.In  the  Auckland  environs  Mr  B    is  authorised  to  drive  on Monday to Wednesday between the hours of 7:00 am and 5:30 pm with a maximum period of actual driving time of up to five hours per day.

9.Outside the Auckland environs Mr B   is authorised to drive on Monday to Thursday between the hours of 7:00 am and 6:00 pm with a maximum period of actual driving time of up to seven hours per day.

Area

10.In the Auckland environs Mr B   is authorised to drive as far north as Signtalk Ltd located at 7 George Lowe Place, Orewa and as far south as Thompson Signs Ltd located at Onewhero Road, RD2, Tuakau.

11.Outside the Auckland environs Mr B   is authorised to drive as far north as Carters Building Supplies Ltd located at Dunn Street, Kaitaia and as far south as Wellington Airport located in Wellington.

12.      All such travel is to be by the most direct and practicable routes.

Motor Vehicles

13.      Mr B   is authorised to drive the following vehicles:

•    company,  2004,  Nissan  Maxima,  blue,  registration  number

CDM792;

•    all other authorised vehicles owned or leased by the company;

and

•    authorised rental vehicles.

Log Book Requirements

14.Mr B   is to carry with him at all times when driving a logbook in which it shall be recorded clearly in English the following matters:

(a)      date;

(b)      time of departure and start mileage; (c)     registration number of vehicle;

(d)      intended destination and name of liaison person; (e)         specific reasons for the journey;

(f)       arrival time and end mileage.

Sub-paragraphs (a) through to (e) to be filled out prior to journey commencing and (f) forthwith on arrival at destination.

15.Mr   B     when   stopped   by   an   enforcement   officer   shall immediately identify himself as a disqualified driver and shall produce  the  sealed  copy  of  the  order,  logbook,  any  previous logbook, and the Land Transport Safety Authority issued limited licence.

Other

16.Mr B   is authorised to drive to attend alcohol counselling at Care NZ located at 32 Station Road, Otahuhu, Auckland and is to attend the  ‘One  for  the  Road’  group  counselling  programme  at  the Manukau Baha’i centre on Saturday 7 February 2009 and 9 February

2009  and  return  home  directly  afterwards.    Mr  B    is  also authorised to attend one-on-one counselling sessions with his Care

NZ counsellor on the dates and times as directed by Care NZ.

[10]     Mr B   is scheduled to attend further counselling sessions with Care.  For that reason additional conditions have been imposed to assist him in that regard.  He will be aware that he will not be granted another indulgence of this nature by a Court of law if he is convicted again of driving with excess breath or blood alcohol.

[11]     I wish to thank both Ms Harding and Mr Carruthers for their assistance this morning in resolving this appeal.

Rhys Harrison J