Barker v Police

[2014] NZHC 3123

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-344 [2014] NZHC 3123

BETWEEN

SUSAN BARKER

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	8 December 2014
Appearances:	M J-M Porner for Appellant R J Gibson and A Pollett for Respondent
Judgment:	8 December 2014

(ORAL) JUDGMENT OF LANG J [on appeal against sentence]

BARKER v NEW ZEALAND POLICE [2014] NZHC 3123 [8 December 2014]

[1]      Ms Barker pleaded guilty in the District Court to a charge of driving with excess blood alcohol.  On 27 August 2014, Judge Fraser fined Ms Barker $1,300 and sentenced  her to  12 months supervision.   He also  disqualified Ms  Barker from holding a driver’s licence for 13 months from the date of sentence.1     Ms Barker appeals  against  sentence  on  the  basis  that  the  period  of  disqualification  was manifestly excessive.

The facts

[2]      The charge that Ms Barker faced arose out of an incident that occurred at approximately 6 pm on 8 May 2014.   On that date she was the driver of a motor vehicle on St Heliers Bay Road.  A member of the public became concerned at the manner in which she was driving, and called the police.  The police eventually found Ms Barker sitting in the driver’s seat of her vehicle at the corner of St Heliers Bay Road  and  Grampian  Road.    The  keys  were  in  the  ignition  when  the  police approached the vehicle.

[3]      Roadside testing procedures proved positive, and Ms Barker elected to give a sample of her blood.  Upon analysis, this was found to contained 260 milligrams of alcohol per 100 millilitres of blood.

Grounds of appeal

[4]      Counsel for Ms Barker submits that the period of disqualification should have been significantly less.  Although Ms Barker has a previous conviction for driving with excess breath alcohol, this was entered more than 30 years ago.  On that basis she submits it could realistically be regarded as historic.

[5]      Counsel have provided me with a copy of the judgment of Collins J in Smith v New Zealand Police.2   In that case the Judge observed that a person convicted of a

second  offence  of  driving  with  excess  breath  or  blood  alcohol  could  ordinarily

1      New Zealand Police v Barker DC Auckland CRI-2014-004-5075, 27 August 2014.

2      Smith v New Zealand Police [2014] NZHC 2101.

expect a period of disqualification of between nine and 12 months imprisonment.3

Ms Porner therefore urges me to quash the period of disqualification that the Judge imposed, and substitute a lesser period of disqualification.   She submits that an appropriate period would be around nine months disqualification.

[6]      Counsel for the respondent concedes that the period of disqualification was too long.  Relying on Smith, the respondent submits that a period of disqualification of between nine and 12 months should have been imposed.

Decision

[7]      I agree that the period of disqualification is too great. Although the existence of a previous conviction remains relevant, the fact that it was entered more than 30 years ago means that its significance is greatly lessened.  The principal aggravating factor in the present case is the very high level of blood alcohol.  On my calculations this would equate to driving with 1300 micrograms of alcohol per litre of breath. That is more than three times the statutory limit.  The manner in which Ms Barker was driving was obviously also such that other road users were placed at risk.

[8]      In Smith the appellant had a previous conviction entered some seven years earlier.  The reading in that case was 899 micrograms of alcohol per litre of breath. This prompted Collins J to reduce a period of disqualification of one year and one day to 11 months.

[9]      In the present case the aggravating factors to which I have referred mean that the case is above the bottom end of the range identified in Smith.  I consider that an appropriate period of disqualification to reflect the aggravating factors and to take into account the historic conviction is a period of disqualification for ten months.

Result

[10]     The appeal is accordingly allowed.  The order disqualifying Ms Barker from driving for 13 months is quashed.  In its place, I make an order that Ms Barker is to

3      Sherley v Police [2012] NZHC 1499; Blanco v Police HC Auckland CRI-2008-404-72, 6 May

2008.

be disqualified from holding or obtaining a motor driver’s licence for a period of ten

months from the date on which she was sentenced.

Lang J

Solicitors:

Crown Solicitor, Auckland

Counsel:
P Winkler, Auckland