Brown v Police
[2013] NZHC 2190
•2 October 2013
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI 2013-419-35 [2013] NZHC 2190
ROA JOE KEVIN BROWN Appellant
v
NEW ZEALAND POLICE Respondent
Hearing: 20 August 2013
Counsel: J Higgins for Appellant
J Tarrant for Respondent
Judgment: 2 October 2013
JUDGMENT OF RONALD YOUNG J (Appeal against conviction and sentence)
Introduction
[1] Mr Brown is a truck driver. On 7 February 2013 he drove a truck and trailer combination from Napier to Taupo. And then the following morning he drove on to Mt Maunganui. He left the hotel early in the morning of 8 February 2013. At about
7.30 a.m. he was stopped at a weigh bridge. He was breathalysed. His breath level was 468 micrograms of alcohol per litre of breath.
[2] In the District Court Mr Brown made application for a discharge without conviction. The Judge concluded that this was serious offending and while acknowledging that Mr Brown would lose his job did not consider that the consequences of a conviction were out of all proportion to the gravity of the
offending.
BROWN v POLICE [2013] NZHC 2190 [2 October 2013]
[3] Counsel submits that the Judge made the following errors. He:
(a) failed to give adequate weight to the significance of the loss of
Mr Brown’s employment including serious financial strain;
(b)incorrectly concluded that when Mr Brown was consuming alcohol the night before the event, he knew he would be driving in the early morning;
(c) incorrectly assessed the seriousness of the offending as at the higher end of the scale;
(d) mistakenly gave weight to Mr Brown’s previous convictions;
(e) failed to take into account the rehabilitative steps Mr Brown had taken since the accident to address his consumption of alcohol.
Background facts
[4] When Mr Brown was stopped he was the driver of a heavy motor vehicle combination, a truck and trailer unit and fully laden with gravel. At the time of his apprehension, Mr Brown told the police officer that he had only had three bottles of beer with dinner and had finished about 9.00 p.m.
[5] Mr Brown said that on the evening before being apprehended he had driven the truck with gravel from Napier to Taupo. When he arrived he checked into the Spa Hotel for the night. He later ordered dinner and had four bottles of beer after dinner. He believed he would have ten hours rest and would then resume his journey the following day.
[6] Later that evening Mr Brown said he received a telephone call from his manager. The manager told him he had to get to Mt Maunganui by 7.00 a.m. the following day to deliver the gravel. He left Taupo at approximately 6.00 a.m. heading towards Tauranga and was stopped at 7.30 a.m. at the weigh bridge.
[7] The appellant’s claim that his employer advised him he had to leave Taupo many hours earlier than he had anticipated was the pivotal fact on which the application for a discharge is based. Essentially Mr Brown says that when he drank on the night before his trip to Tauranga he believed he would have at least ten hours before he needed to resume driving. This would be ample time, therefore, for any alcohol to pass through his system. What was unanticipated was that he would be rung by his employer late at night and told he had to be in Tauranga by 7.00 a.m.
[8] At the hearing of the appeal I advised counsel that in my view there was insufficient factual material before the Court to establish, what was the pivotal factual question on the application for discharge. If the appellant could establish, when he consumed the alcohol the night before, that he had anticipated he would not have to drive until at least 10 hours later when the alcohol in his system had dissipated then that would go some considerable way to reducing the seriousness of his offending.
[9] Further, if he had been told that he needed to leave Taupo early the next morning for Tauranga, after his consumption of the alcohol then that would also be of factual significance in establishing the seriousness of the offending.
[10] I allowed counsel for the appellant to file further affidavit material dealing with these pivotal questions. I allowed counsel for the appellant and respondent to file further submissions relating to this further factual material. The material before the Court, while relating to the same issues before the District Court Judge, provided a more informed factual context for assessing the seriousness of Mr Brown’s offending.
[11] Mr Brown confirmed that on 7 February he had left his home at about
5.00 a.m. and at 6.30 p.m. that night had arrived in Taupo. He stayed at the Spa Hotel. Eventually he went to the hotel bar to get some food and consumed some alcohol. He accepts that he would have consumed about five or more bottles of beer.
[12] A few hours later he went back to his room. His evidence was that when he had arrived in Taupo he was unaware that he would have to drive early the following morning. He said that he drank the beer “thinking that I would be able to relax and that there was no rush the following morning”. He said that he had no definite time in mind to leave but it would have been several hours later than his actual departure time.
[13] When he got back to his room there was a message on his phone from his manager. That said that he had to be at Mt Maunganui at 7.00 a.m. the following morning. He, therefore, set the alarm for 5.30 a.m.
[14] In addition to the appellant’s affidavit there was an affidavit from Mr Charlie Talfa who was the North Island bulk manager for Freightlines Group, the company that employed Mr Brown and in addition an affidavit from Mr Gregory Pope who was the dispatcher for Freightlines Group at the relevant time.
[15] Both men confirmed that late in the evening of the 7th of February, they left a message for the appellant to let him know that, contrary to his previous instructions, he would now need to be at Mt Maunganui by 7.00 a.m. the next morning. Until that time, they said that Mr Brown would have thought he could be at Mt Maunganui at his leisure with no tight time schedule.
[16] Mr Brown estimated that he left the hotel at about 6.00 a.m. At 7.30 a.m. he was stopped by police at the weigh bridge, State Highway 30, Rotorua, near Rotorua itself. Alcohol testing was then carried out and he returned a breath alcohol reading of 468 micrograms of alcohol per litre of breath. This is the evidence relevant to an assessment of the seriousness of the offending.
[17] I am prepared to accept given the additional evidence now provided that the seriousness of the offending here was at the low level. I accept that Mr Brown did not intend to drive on 8 February within a period where he would have had an excess breath alcohol level. I accept what he said that he had not intended to drive for several hours after his actual departure time at 6.00 a.m. By that time given his
breath alcohol level was only slightly above the maximum it is unlikely he would have been over the limit several hours later.
[18] I accept Mr Brown’s evidence and the evidence of other employees of Freightlines it was reasonable for Mr Brown to assume he would not have to drive until late in the morning. I accept that it was only as a result of an urgent situation that unpredictably arose that Mr Brown drove at 6.00 a.m. in the morning and by
7.30 still had an excess breath alcohol level. Of course Mr Brown should have told his employer that he had been drinking the previous night and that he could not drive for several more hours. If he had done that and refused to drive of course he would not have committed the offence.
[19] Finally, the breath alcohol level while over the maximum allowable limit, is only just on 15 per cent over that limit. I, therefore, assess the seriousness of the offending in the low category.
[20] As to consequences of a conviction, the primary consequence arises from the fact that the appellant will be disqualified from driving. It seems clear that he will lose his employment. Mr Brown is 65 years of age. He says that he has worked in the transport service industry for 40 years. He has no qualifications, training or experience in any other industry. I accept his evidence that it would be virtually impossible for him to begin working in another industry and impossible until his disqualification ended for him to be a truck driver. At 65 he may also have considerable difficulty in obtaining further employment in transport services.
[21] There are other aspects to Mr Brown’s circumstances which are relevant. He is the father of six mature children and a grandfather of 18 children. His daughter resides with him in Te Kauwhata along with her four children. The property he lives in has a mortgage. Without his income it seems unlikely that he would be able to keep that house and the family would then have to find some form of rental accommodation.
[22] Mr Brown’s evidence is that a disqualification and subsequent loss of employment would have a catastrophic affect on his immediate circumstances and on his prospects for a retirement.
[23] There is no doubt, therefore, that there will be severe consequences for Mr Brown if he is convicted. He will lose his job. At 65 and only trained in the transport services industry, the chance of getting another job without a licence is slim to nonexistent.
[24] Mr Brown and some of his family are reliant on Mr Brown’s income for their housing and other needs. And so it is no exaggeration to say that a loss of his job at this stage, even for the last few years of his working life, will have very serious consequences for Mr Brown.
[25] Having identified the gravity of the offence and the direct and indirect consequences of a conviction, I need to decide whether those consequences would be out of all proportion to the gravity of the offending. I am satisfied that they would be. I have assessed the gravity of the offending in the particular circumstances here as relatively low. I have assessed the consequences of the offending for Mr Brown in the particular circumstances as relatively high. I am satisfied, therefore, that a conviction would be out of all proportion to the consequences of a conviction.
[26] I, therefore, allow the appeal, quash the conviction and discharge Mr Brown without conviction. Although I have the power to do so I impose no disqualification.
Ronald Young J
Solicitors:
Norris Ward McKinnon, Hamilton
Crown Solicitor, Hamilton
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