C v Police HC Wellington CRI 2007 485 112

[2007] NZHC 1245

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2007 485 112

C

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         13 November 2007

Counsel:         G Fairbrother for Appellant

J Murdoch for Respondent

Judgment:      13 November 2007

ORAL JUDGMENT OF MACKENZIE J

[1]      This is an appeal against the sentence imposed in respect of a number of driving offences, in particular the appeal is against the length of disqualification imposed on one of two charges which the appellant faced of driving with excess breath alcohol.   It is submitted that the period of two years disqualification is manifestly excessive.

[2]      The circumstances are that the appellant appeared in relation to two separate driving incidents.   The  first occurred on 1  February 2006  when the appellant’s vehicle was noted driving somewhat erratically in Kelburn, that the vehicle veered into the opposite lane at a pedestrian crossing which two pedestrians were using and

proceeded without giving way.   A member of the public tooted his horn and the

C V NEW ZEALAND POLICE HC WN CRI 2007 485 112 13 November 2007

appellant stopped her vehicle.  The member of the public was sufficiently concerned to remove the keys from the ignition.  A breath screening test was carried out and an evidential breath test returned a result of 1340 micrograms of alcohol per litre of breath.   On that incident the appellant faced a charge of dangerous driving and a charge of driving with excess breath alcohol.  She was fined, for the two offences, a total of $1,000 and Court costs of $260 and disqualified for nine months.   The sentencing Judge noted that the longer than minimum period of disqualification was by virtue of the high breath alcohol level and the fact that it was accompanied by a dangerous driving charge.

[3]      The second incident occurred on 10  April  2006  when  the  appellant  was driving, again in Kelburn, when she was seen to pull out of traffic to make a turn and as she did so struck a parked vehicle.   On the roadway she tried to correct the direction of the vehicle and over-corrected and hit a second vehicle which was stationary.  She then tried to correct direction again causing it to hit another vehicle, this one also parked.   She did not ascertain whether there were persons in  the vehicle she struck.   She was located at her address.   A breath screening test was conducted and subsequently an evidential breath test which returned a level of 1531 micrograms of alcohol per litre of breath.

[4]      For those events she faced a charge of careless driving for which she was disqualified for three months and ordered to pay $130 costs and on the excess breath alcohol charge disqualified for two years.  She was also fined $1,350 and ordered to pay Court costs of $130.

[5]      The appeal was lodged out of time, and leave to appeal out of time is sought. There being no opposition to that course, leave to appeal out of time is granted.

[6]      The  grounds  for  the  appeal,  as  I  have  noted,  are  that  the  two  year disqualification period is manifestly excessive.   In support  of  that  a  number  of circumstances are relied upon.  The first is that because both of these breath alcohol offences were dealt with at the same time they both fell to be dealt with under s 56 of the Land Transport Act 1998 and the second did not fall to be dealt with under s 65. Had s 65 applied an application could have been made for the licence to be returned

before the end of the disqualification.   Section 99 of the Act was also potentially available but the appellant was apparently under mistaken advice that she would have to wait until after one year of the disqualification before making application when in fact the right to apply then no longer applied because the disqualification had less than one year to run.

[7]      It is also submitted that the appellant has made a positive response to the alcohol difficulty which she was clearly experiencing at the time and there is information which indicates that she has successfully completed treatment programmes at the Bridge Programme and that she has made a strong recovery and has maintained sobriety and has clearly responded well to treatment.

[8]      The question for me is whether the two years disqualification was manifestly excessive.  That involved the exercise of a discretion by the sentencing Judge which must be shown to be wrong and he sentence out of line with the permissible range.

[9]      Reading the sentencing notes it seems clear that the Judge was regarding the disqualification as perhaps the most significant item of the penalty which he was imposing.   The fine imposed could be seen as a modest penalty for that offence having regard to the breath alcohol level involved, and if regard is had to the totality principle and to the totality of offending in both incidents that conclusion that the disqualification is perhaps the most significant element of the penalty is reinforced, and I must take that into account when considering whether the disqualification is manifestly excessive.

[10]     As to the issue of whether application could in other circumstances have been made for an earlier return of the licence I do not consider that those matters are entitled to significant weight.  It is to be borne in mind that any application for return of licence under either of those provisions is just that.  It is an ability to apply for return.   It is not a guarantee of the return of the licence, whereas if the period of disqualification were reduced that would of course have the effect of reducing the period.

[11]     The appellant’s response to the problem which has been clearly identified from this offending is to be commended.  I think it is greatly to her credit that she has made the response which she has to the problem which she clearly faced, and it is hoped that the circumstances which have occurred here will not be repeated.

[12]     However, I must assess the period of disqualification against the principles that I have outlined.   In doing so, I reach the conclusion that the penalty of disqualification, while it was at the upper end of the range, was not outside the permissible range.  I take into account particularly, as I have indicated, that the way the sentence was constructed meant that this was the most significant element of the penalty.   In the circumstances, I reach the conclusion that the two years disqualification is not manifestly excessive and that the appeal must be dismissed.

……………………………

A D MacKenzie J

Solicitors:

Crown Solicitor, Wellington, for Respondent