B v Police HC Tauranga CRI 2009-470-30

[2009] NZHC 2003

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI 2009-470-30

B

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         27 October 2009 (Heard at Rotorua)

Appearances: Appellant in person

R Ronayne for the Respondent

Judgment:      27 October 2009

ORAL JUDGMENT OF WOODHOUSE J

Solicitors:

Mr K P B 

Mr R Ronayne, Ronayne Hollister-Jones Lellman, Office of the Crown Solicitor, Tauranga

B V NEW ZEALAND POLICE HC TAU CRI 2009-470-30  27 October 2009

[1]      On 28 October 2008 Mr B   was fined $600 and costs and, as recorded in the Judge’s words, he was “disqualified for 15 months”.  This was on a charge under s 58(1) of the Land Transport Act 1998 of driving a vehicle under the influence of a drug to such an extent as to be incapable of having proper control of that vehicle.  Mr B   was also convicted and discharged on a charge of careless use.

[2]      On 4 September 2009 Mr B   lodged an appeal against the disqualification. That was approximately 9 months late in terms of the period within which the appeal should have been lodged.   There is no formal application by Mr B   to extend time, but I will treat his oral submissions to me in this regard as being an application to extend time.   There was some explanation in terms of Mr B  ’ financial circumstances for his failure to lodge an appeal within the requisite period.  For other reasons of a legal nature that I will come to, I consider it is appropriate to grant leave for the appeal to be brought out of time.

[3]      The essence of Mr B  ’ contention on appeal in relation to the sentence is that the 15 months “disqualification” was excessive and for him it has had and will have a financial burden greater than for others.  That arises from the fact that he is a truck driver with a heavy truck driver licence and other specialised licences.  If he is disqualified from holding or obtaining a driver licence in excess of 12 months he is bound to re-sit  the  licence  tests.    For  some  of these  there  can  be  considerable expense.

Facts

[4]      On 14 January 2008 Mr B   was driving a heavy truck on a street in Tauranga within a 50 kph restricted area.  On going around a moderate bend he hit two parked cars.  Both cars sustained extensive damage.  A medical examination of Mr B   followed.  He was found to be under the influence of a prescription drug. This had been legitimately prescribed to him.   However, the label on the bottle recorded that the effects of the medicine “may make you sleepy and make it dangerous to drive or operate machinery”.  In addition to this warning on the label,

Mr B   had earlier in the day, while driving his truck, knocked a parked car when he was backing out of a driveway.

[5]      Matters that the Judge took into account in imposing the sentence included, in summary: the warning on the bottle; the earlier incident when Mr B   was backing his truck which should have alerted him; the special responsibilities of somebody driving a heavy truck; the related careless use offence; and previous driving convictions.   There was a conviction in December 2002 for driving under the influence of alcohol, with an associated conviction for failing to stop or ascertain injury following a non-injury crash.   Mr B   on that occasion was disqualified from holding or  obtaining  a  driver  licence  for  6  months.    There  was  a  further disqualification for 2 months in March 1989 for driving in a dangerous manner.

[6]      The Judge noted that Mr B   had pleaded guilty, although not at the earliest possible opportunity.  The Judge said that he took this into account.

[7]      It appears from the Judge’s sentencing notes that he proceeded on the basis that he was bound to impose a minimum period of disqualification from holding or obtaining a driver licence of more than 12 months for driving under the influence.  I infer that from the final paragraph of his sentencing notes, which is as follows:

You are disqualified for 15 months, that is a little bit more than the minimum mandatory period, but that reflects the combination of charges and your history. That will commence immediately.

This is reinforced by the caption sheet prepared by the respondent.   This records, following reference to s 63 of the Land Transport Act 1998, that the penalty included “more than 1 year’s disqualification but not more than 10 – as Court Thinks Fit [sic]”.

[8]      Section 63(1) of the Land Transport Act states, in essence, that a person convicted for certain offences, including the one Mr B   was convicted for, must be disqualified “from driving a vehicle being used in a transport service … for such period exceeding 1 year but not more than 10 years as the court thinks fit”.

[9]      It will be noted that this provision refers to disqualification from driving.  It is not directed to disqualification from holding or obtaining a driver licence.   In Mr B  ’ case the minimum period of disqualification from holding or obtaining a driver licence was 6 months.

[10]     Had the Land Transport Act prescribed a minimum period of more than 12 months disqualification from holding or obtaining a driver licence, I would not have considered  that  a  15  month  disqualification  came  close  to  being  manifestly excessive.  However, as the Judge appears, with respect, to have proceeded under a misapprehension,  I  am  bound  to  reconsider  the  period  of  disqualification  from holding or obtaining a driver licence.  I must say that the misapprehension is entirely understandable.   It does appear to be one resulting from the Judge, in a busy list court, being positively misled by the caption sheet.

[11]     It is because of this legal point in relation to minimum disqualification that I

consider it appropriate to grant leave to appeal out of time.

[12]     The Judge clearly intended to impose disqualification, as he put it, “a little bit more than the minimum”.  Arithmetically he intended to impose a disqualification from holding or obtaining a driver licence 25% in excess of the assumed minimum –

15 months as opposed to 12.

[13]     Had the caption sheet stated the correct statutory minimum of 6 months, on an arithmetical approach the period of disqualification would have been around 7 ½ months.  However, I need to reassess this giving due weight to the Judge’s approach. In those circumstances I consider that the period of disqualification from holding or obtaining a driver licence should be at least 9 months, which is, of course, 50% more than the minimum.

[14]     There are, however, circumstances which I consider make it necessary to bring home to Mr B   how fundamentally important it is that he avoid any further offending of this nature on the highway, whether he is driving a car or a truck or any other vehicle.   For that reason I consider that, on the application of the correct

statutory minimum, the period of disqualification for Mr B   from holding or obtaining a driver licence should be 10 months.

[15]     In addition, I am bound by s 63(1), as was the Judge, to impose a minimum period of disqualification from driving a vehicle being used in a transport service.  I can see no reason to interfere with the 15 months referred to by the Judge, while making it clear that this is 15 months from driving a vehicle being used in the transport service, not 15 months disqualification from holding or obtaining a driver licence.

[16]     In coming to these conclusions I have not overlooked the need to have regard to the end sentence imposed in any case.  The end sentence may be assessed not to be manifestly excessive even if the route by which it has been reached is unorthodox. I do not consider that that principle is applicable.  This is an appeal concerned with a statutory provision which inadvertently was misapplied.

Result

[17]     The result is that the appeal is allowed.

[18]     The disqualification from holding or obtaining a driver licence for a period of

15 months is quashed.   There will be substituted a period of 10 months disqualification from holding or obtaining a driver licence.

[19]     In addition, Mr B   is disqualified from driving a vehicle being used in a transport service for 15 months.

[20]     The commencement date of both disqualifications is the date of sentence in the District Court of 28 October 2008.

Peter Woodhouse J