C v Police HC Rotorua CRI 2009-463-25

[2009] NZHC 612

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2009-463-25

C

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         25 May 2009

Appearances: O J Brittain for Appellant

C M Macklin for Respondent

Judgment:      25 May 2009

JUDGMENT OF KEANE J

Solicitors:

Crown Solicitor, Rotorua

C V POLICE HC ROT CRI 2009-463-25  25 May 2009

[1]      On 2 April 2009 C   was fined $700 and disqualified from driving for six months. He appeals his sentence on the ground that the Judge did not sufficiently consider whether he ought to be excused being disqualified for a special reason, that he had driven to assist a friend who had appealed to him for his help. She said that she had just been attacked.

[2]      The  uncontested  basis  on  which  Mr  C    pleaded  to  this  offence  and appeared for sentence was that on Friday, 13 February 2009, at about 3.45 am, he drove into the forecourt of the Mobil Service Station, Clayton Road, Rotorua where the police were speaking to his friend. He explained that he was responding to her call for help. He admitted to having consumed alcohol before driving. He was breath tested. The result was 724 micrograms of alcohol per litre of breath.

[3]      On sentence Mr C   applied to be excused from being disqualified on the basis adverted to in the police summary. At 3 am, he said, he had received a text message from his friend. She said that she had just been attacked and wanted him to come urgently. Without thinking he responded. He drove from Owhata, where he lives, to the Mobil Service Station where she was. When he got there she was already speaking to the police.

[4]      Mr C  ’s friend has also confirmed his account. She explained that she had found herself sharing a taxi from town with a man, who had asked to be dropped at the service station. She decided to get out at the same time to walk to her home a short distance away. He attacked her. She ran away. She sent a text message to Mr C  . She asked him to meet her. She was seen by police. At the service station, when Mr C   arrived, there were two or three police cars. She said that she did not press charges. She had been frightened but not injured.

[5]      On sentence the Judge made no overt reference to the application, or this evidence. He did say that Mr C   ought not to drive ‘in any circumstances’, perhaps referring obliquely to the application in that way. He did say that this was Mr C  ’s second conviction for driving with an excess breath alcohol, the first having been in 2000 when he was a youth, and that he had to realise that he could not drive.

[6]      It is unfortunate that the Judge did not deal with the application directly. I am told by Ms Brittain that he was certainly alive to it, did consider it, and did not accept it. But he did not say why that was and so on this appeal I must consider that issue afresh.

[7]      On this appeal I have another affidavit from Mr C   that the Judge did not see, to which counsel for the police, Mr Macklin, takes no objection. Mr C   says that after the text message he telephoned Ms Couchman and, responding to the sound of her voice, believed she needed help because she was in immediate danger. She said she was being chased down the road.

Special reason exception

[8]      Mr C   seeks an exceptional form of relief. His offence against s 56(1) of the Land Transport Act 1998 carries under s 56(3)(b) a mandatory minimum term of disqualification of six months; the term the Judge imposed. However, s 81(1) states:

If  any provision  of this  Act (other  than  section 63) requires  a  court  to disqualify a person from holding or obtaining a driver licence … for a period not less than the specified minimum period, the court must order that the person be disqualified accordingly unless for special reasons relating to the offence it thinks fit to order otherwise.

[9]      This is not a new exception. In Lower Hutt City v McAlpine [1972] NZLR

168, at 171, Beattie J stated that special reasons ‘embrace only factors of a particular or exceptional character’, and, at 172, are likely to arise only rarely. In Ministry of Transport v Green (1985) 1 CRNZ 492, at 494,  Barker J  proposed a threefold inquiry: whether circumstances are capable of constituting special reasons in law; whether the facts in the case qualify; and whether the discretion should be exercised in whole or part.

Conclusions

[10]     The reason why Mr C   says he drove, that he was responding to a cry for help, could in law constitute a special reason for not disqualifying or for reducing the period of disqualification below the minimum. But for that to be so the response

would have to be objectively reasonable: it would have had to be clear to the one appealed to, and for good reason, that the one appealing was in imminent danger and without any other help; that by driving he or she could help and help rapidly. That is not this case.

[11]     Owhata is a considerable distance from the Mobil Service Station. Mr C   had to drive right across Rotorua at the centre of which is the police station. It should have been plain to him that they were far better placed to assist than he was, as indeed they were. That Mr C   did not appreciate this immediately, or that he was unfit to drive, may be explained by the amount he had consumed earlier. Had he thought  about  it,  he  would  have  realised  that  he  was  about  to  take  a  quite unjustifiable risk.

[12]     There has also to be a question about the risk that Ms Couchman was then under. That she could send a text suggests she may not have been in imminent danger. Even if he did telephone her and she said she was being chased, a fact she has not corroborated, that raises more questions than it answers. How then was Mr C   to find her?  Yet he went to the Mobil Service Station and that is where she was. Was she already there when she sent him the text?

[13]   In the result I am unable to conclude that Mr C   has established, objectively, that he had good reason to suppose that Ms Couchman was at a risk that only he could answer by driving as he did; he has not made out a special reason for being excused the mandatory term imposed.

[14]     That apart, the penalty was proper for a first such offence of this relative order of seriousness. Deliberately, I suspect, the Judge did not take account of what had to be an aggravating factor, that this was a second offence, and so the sentence cannot be thought of in any other way as manifestly excessive. The appeal must be

dismissed.

P.J. Keane  J