B v Police HC Wellington CRI-2008-485-156

[2009] NZHC 662

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2008-485-156

B

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         2 June 2009

Appearances: I Hard for the appellant

I Murray for the respondent

Judgment:      3 June 2009

JUDGMENT OF CLIFFORD J

Introduction

[1]      On 19 November 2008 Mr B   was sentenced by Judge Radford in the District Court at Wellington on convictions of driving with excess blood alcohol (his third such conviction) and driving while disqualified, under ss 56 and 32 of the Land Transport Act 1998.  On the lead offence of driving with excess blood alcohol, he was sentenced to 300 hours’ community work and two years’ disqualification from driving.   He was sentenced on the second offence to 100 hours’ community work

and six months’ disqualification (concurrently).

B V POLICE HC WN CRI-2008-485-156  3 June 2009

Background

[2]      The convictions arose out of events occurring on 23 March 2008.   Two officers saw a car make two u-turns and drive back into Amber Grove in Upper Hutt. The officers followed it and Mr B   was seen to get out of the driver’s door. He was both breath tested and blood tested, returning a result of 106 milligrams of alcohol per millilitre of blood. Mr B   was disqualified from driving at the time under an eight month disqualification period imposed on 30 October 2007.

[3]      Mr B   defended the charges.  He was found guilty by Judge Harrop on 28

September 2008.

[4]      Mr B   now appeals against the period of disqualification on the grounds that it is manifestly excessive.  He does not challenge the sentences of community work.

Discussion

[5]      For  Mr  B  ,  Mr  Hard  submitted  that  although  there  is  authority  for upholding the two year disqualification in this case, a disqualification of 18 months would be more consistent with previous decisions.  He also submitted that, in terms of local practice in the Wellington region, a disqualification of 15 months would be appropriate.    He stated  that  in  his  experience,  the  usual  practice  in  Wellington (except for serious repeat offenders) is to take the statutory minimum of disqualification for the lead offence, which is one year and one day.  Mr Hard did not, however, refer me to any decisions reflecting that experience.

[6]      It is well-established that national consistency in sentencing is important: Ministry of Transport v Graham [1990] 3 NZLR 249. A full bench of the High Court in McEachen v Police [1995] 2 NZLR 251 stated at 255-256:

Certainly we are satisfied that there should not be local tariffs unless some reason  can  be  expressed  for  adopting  them.  There  is  legitimate  public concern about persons affected by alcohol driving when their faculties are impaired and about the danger that constitutes to other  members  of the public. That is a concern which exists throughout the country. It will not

often  be amenable to  variation  according to  local views. There  may  be variations arising out of the locality or place of residence of particular defendants in the degree of inconvenience resulting from disqualification, but those matters are capable of accommodation through the operation of the limited licence provisions.

[7]      As such, Mr Hard’s stated experience as a lawyer in the Wellington region is of limited, if any, relevance.

[8]      Section 56(4) of the Land Transport Act provides that a person who commits a third or subsequent offence under s 56(1) or (2) must be disqualified from holding or obtaining a driver licence for more than one year.

[9]      In Clotworthy v Police (2003) 20 CRNZ 439 Justice Wild identified (at [20]) a non-exclusive list of 10 factors relevant to sentencing recidivist drink drivers.  It is not necessary to list those factors here.

[10]     Clotworthy  was  endorsed  by  the  Court  of  Appeal  in  R  v  McQuillan CA129/04 12 August 2004, subject to the caution (at [22]) that sentencing involves consideration of widely varying circumstances and the list of factors in Clotworthy does  not  dispense  with  the  need  for  the  normal  exercise  of  judgment  by  the sentencing Judge in deciding on the appropriate sentence in the circumstances of the case.  In particular, the Court noted that:

the choice of a sentence for offending of this type must reflect the circumstances  of  each  individual  offender  and  the  nature  of  his  or  her present and past offending rather than a mechanical increase in the length of a sentence solely dependent upon the number of times a person has been convicted of a particular type of offence. It cannot be right, as a matter of principle, for a sentence close to the maximum to be available only when a certain number of offences have been committed.

[11]     I have also had reference to cases dealing with similar offending, including R

v Wilson CA433/05 3 July 2006, Jenkins v Police HC CHCH CRI-2008-409-50 14

May 2008, Anderson v Police HC NWP AP26/02 9 July 2002, Edwards v Police HC NWP AP31/02 13 August 2002 and Fairbrother v Police HC MAS MA16/02 5

December 2002.   I note, in particular, that in Fairbrother the appellant was disqualified for two years after pleading guilty to a charge of driving with excess breath alcohol (having a level of 558 micrograms per litre of breath), it being his

third such offence.  His previous offences were within five years of the offending at issue.   Ellen France J held that counsel was in error in stating that two years disqualification was out of line for offending of this nature, stating at [22]:

Given that for a second drink-drive conviction a period of disqualification of up to 18 months can be legitimately imposed, it does not appear manifestly excessive to inflate the period of disqualification where there is a third or subsequent conviction. Indeed, this escalation of sentence is statutorily prescribed.

[12]     Ellen France J also noted that it was not necessarily helpful to look at the disqualification aspect of the sentence in isolation from the sentence as a whole. Thus as “imprisonment would appear to be the usual though not inevitable consequence for recidivist drink driving offences… it seems that a comparatively longer period of disqualification can be countenanced where the offender is subject to a monetary penalty rather than a custodial sentence” (at [3]).

[13]     Here, Mr B  ’s blood alcohol level was well over the limit although it was at the lower end of offending in comparison with the above cases.  His two previous drink driving convictions occurred within the last five years such that, whilst not in close succession, they indicate a lack of response to previous sentences.   He was disqualified for 6 months in May 2004 and 8 months in October 2007 (plus 65 hours and 250 hours’ community work respectively) as a result of these convictions.

[14]     Whilst the manner of Mr B  ’s driving appears to have been relatively innocuous, he was disqualified from driving at the time as a result of an earlier drink driving conviction.  That is, in my view, a significant aggravating factor.

[15]     Mr B   did not plead guilty and was therefore not entitled to any leniency or reduction on that ground.  There were no personal mitigating features.  The Judge also considered, in my view appropriately, that Mr B  ’s failure to attend the Probation Service for the purpose of preparing a pre-sentence report, and his outstanding community work, indicated that he was not taking these matters particularly seriously.

[16]     In light of these considerations, and particularly that this was Mr B  ’s third drink driving offence within five years and occurred at a time when he was still

disqualified as a result of the latest drink driving conviction, it is my view that a two year disqualification is clearly within range and cannot be said to be manifestly excessive.

[17]     For these reasons, Mr B  ’s appeal is dismissed.

“Clifford J”

Solicitors:   I Hard, Upper Hutt for the appellant ([email protected])

The Crown Solicitor, Wellington for the respondent ([email protected])