Bowie v Police

[2016] NZHC 216

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2015-409-000115 [2016] NZHC 216

BETWEEN

LEVI TYSON BOWIE

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	16 February 2016
Appearances:	E Huda for the Appellant C E Martyn for the Respondent
Judgment:	18 February 2016

JUDGMENT OF NATION J

[1]      On 21 October 2015, the appellant was sentenced on a charge of driving with excess breath alcohol to a six month disqualification from holding or obtaining a driver licence.   He appeals his sentence on the basis that the District Court Judge erred when he exercised a discretion, under s 85 of the Land Transport Act 1998, to set the commencement date for that disqualification at 2 January 2016 instead of the date of sentencing.

[2]      At   the   date   of   sentencing,   the   appellant   was   already   subject   to   a disqualification period of three months for the accumulation of demerit points, which began on 2 October 2015.

[3]      The appeal is brought under s 244 of the Criminal Procedure Act 2011.

BOWIE v POLICE [2016] NZHC 216 [18 February 2016]

[4]      Under s 250 of the Criminal Procedure Act, this Court may only allow an appeal against sentence if it is satisfied there has been an error in the imposition of the sentence and, in that event, a different sentence should be imposed.1

[5]      There being no assertion that the Judge misdirected himself as to a question of fact, the appeal falls to be decided on the question of whether the Judge erred in law in imposing the sentence he did.

[6]      For the appellant, Mr Huda submitted the Judge made an error of law in not giving reasons when deciding to exercise his discretion to delay the commencement of the six month period of disqualification.   Mr Huda submitted that s 31 of the Sentencing Act 2002 imposed an obligation on the sentencing Judge to provide reasons for his decision.

[7]      For the Police, Ms Martyn accepted the Judge did not articulate reasons and, in that sense, implicitly accepted there was an error.  However, she stated the reason was clear to all and was apparent from the record.  The appellant’s licence had been suspended for three months beginning 2 October 2015 as a result of accumulating

100 or more demerit points within a two year period.  The commencement of the six months’ disqualification on the excess breath alcohol charge was suspended to give effect to that initial period of suspension and to ensure there was an additional penalty of six months’ disqualification, as required by the legislation, in respect of the appellant’s driving with excess breath alcohol on 2 October 2015.

[8]      The Judge’s omission to expressly refer to reasons is not, of itself, a sufficient ground for interfering with the sentence which was imposed on the excess breath alcohol charge by the Judge.   I can allow the appeal only if I am satisfied that a different sentence should have been imposed.   If not so satisfied, I am required to dismiss the appeal.

[9]      Mr Huda also submitted the Judge failed to apply the totality principle in imposing  the  six  months’ disqualification  on  terms  that  meant  his  licence  was suspended for both three months as a result of accumulated demerit points and six

months for the separate excess breath alcohol offence.  There was no error in this regard.  The Judge was not fixing a sentence for both offences.   The three month suspension, resulting from the accumulation of demerit points, came about through the application of legislation without the Judge being required to exercise any judgment on the matter. The only offence in respect of which the Judge was required to impose a sentence was the excess breath alcohol charge.

[10]     In the absence of special circumstances, the Land Transport Act requires the Judge to impose a minimum six month period of disqualification.   It was not suggested the Judge could or should have imposed disqualification for any lesser period.

[11]     Section   85   of   the   Land   Transport   Act   provides   that   a   period   of disqualification starts on the day the order is made, unless the Court otherwise directs.  In Edwards v Police, Venning J said of s 85(1): 2

The wording is unambiguous.  The Court has an unfettered discretion as to the date the disqualification is to run from.   The Court may “otherwise direct” the period of disqualification be backdated or commence on a future date.

[12]     The  intention  of  the  legislation  is  clear.     In  the  absence  of  special circumstances, a person convicted of an excess breath alcohol offence will be disqualified  from  driving  for  six  months  as  a  result  of  that  offence.    That  is reinforced by s 85(3) which provides that, where a person is already disqualified (albeit under an “order”), the commencement date for a further disqualification order starts when that initial period of disqualification ends.

[13]     In submissions for the appellant, Mr Huda submitted the sentencing Judge had blurred the separation of the powers between the legislature and the judiciary. He did not cite any authority to support the proposition.

[14]     I  find  that  what  the  Judge  did  was  to  give  full  effect  to  the  relevant legislation.   He ensured he gave effect to the three month suspension which the legislation imposed as a result of the accumulation of demerit points.  Separately, he

ensured the appellant suffered the penalty of a disqualification for six months, as the legislation required, given his conviction for an excess breath alcohol offence.  The reasons for which the Judge exercised his discretion and delayed the commencement of  the  disqualification  were  clear  although  not  expressed.    There  can  be  no suggestion that, in exercising his discretion, the Judge took into account an irrelevant matter or failed to consider a relevant circumstance or made any error of law.  The sentence imposed in respect of the excess breath alcohol charge was required by the legislation.  It was appropriate for the Judge to exercise his discretion in the way he did to delay the commencement of that period of disqualification so that Mr Bowie also had to comply with the three month suspension of his licence that arose because of his accumulation of demerit points.

[15]     Accordingly, there is no basis on which I can find a different sentence should have been imposed. The appeal is accordingly dismissed.

Solicitors:

Richard Maze, Barrister, Christchurch

Raymond Donnelly & Co., Christchurch.