Capper v Police
[2018] NZHC 889
•1 May 2018
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
I TE KŌTI MATUA O AOTEAROA TE PAPAIŌEA ROHE
CRI-2018-454-5
[2018] NZHC 889
ANDREW JAMES CAPPER v
NEW ZEALAND POLICE
Hearing via AVL: 1 May 2018 Counsel:
K Campbell for Appellant K van der Plas for Crown
Oral Judgment:
1 May 2018
ORAL JUDGMENT OF CHURCHMAN J
Introduction
[1] Mr Capper has pleaded guilty to one charge of driving a motor vehicle while the proportion of alcohol in his breath exceeded 400 micrograms.1 On 1 March 2018, in the Levin District Court, Judge Large sentenced Mr Capper to 100 hours’ community work and disqualified him from driving for a period of 12 months and one day following his conviction on this offence.2
[2] Mr Capper appeals his sentence on the grounds that the Judge erred in declining to find special reasons under s 81 of the Land Transport Act 1998 (“the
1 Land Transport Act 1998, s 56(1). As this was his third drink-driving offence, the maximum penalty was two years’ imprisonment or a fine of $6,000 and the Court had to order he be disqualified from holding a driver licence for more than one year.
2 New Zealand Police v Capper [2018] NZDC 4623 [Capper].
CAPPER v NEW ZEALAND POLICE [2018] NZHC 889 [1 May 2018]
LTA”) to relieve him from the otherwise mandatory minimum disqualification period of more than one year.
[3] During the course of his oral argument this morning, Mr Campbell for Mr Capper, refined the thrust of the appeal which focused on the extent to which the Court is permitted in assessing whether or not special reasons exist under s 81 to have regard to the prior convictions of a person such as Mr Capper. His argument was that it is not a matter which can have regard given to it at this stage of the analysis which should be solely confined to the facts of the offending.
[4]The Crown has opposed this appeal.
Facts
[5] The facts of the case are that on 22 November last year, Mr Capper was the driver of a motor vehicle on Hokio Beach Road in Levin. He had been at the house of an associate of his, Ms Arnold, when they apparently got into an argument where she threw a bottle at him and threatened to smash his car. Mr Capper left the house in his car as he did not want to leave it there in case Ms Arnold smashed it up further.
[6] Ms Arnold contacted the police to advise that Mr Capper had been drinking and that he was driving. His vehicle was located by a police car near a local takeaway food store. When Mr Capper returned to his vehicle he drove away, the police officer followed him and stopped him. He had driven a distance of 1.6km from Ms Arnold’s house prior to his apprehension by the police officer.
[7] In the roadside testing, Mr Capper returned a breath screening test of over 400. A subsequent breath test analysis gave a reading of 753 micrograms of alcohol per litre of breath.
District Court decision
[8] Although this was Mr Capper’s third drink-driving charge, Judge Large found that, as the last offence occurred on 22 June 2008, this length of time between the
offending allowed him to consider a community-based sentence rather than imprisonment.
[9] However, one of the major, if not the major, issues before Judge Large in terms of sentencing was the special reasons application. The application was based on the fact that the appellant decided he had to remove himself from an address where he had got into an argument with Ms Arnold and the need for driving arose from the fact that his car was at that address and he was fearful that if the car was to remain at the address it would likely sustain damage at the hands of Ms Arnold.
[10] There is no doubt, as Mr Campbell emphasised to the Court this morning, that there have been many cases where an apprehension of damage which has been regarded as legitimate and has provided the basis for a finding of special reasons.
[11] The difficulty in this case for Mr Capper is the length that he drove, the distance of 1.6km before he was ultimately stopped. That is relevant and was influential in Judge Large’s finding because he determined that the driving of this length was a much longer distance than necessary to remove the vehicle and Mr Capper from such harm as may have been posed by Ms Arnold.
[12] In relation to the exercise of the discretion, the Judge also stated that he was not prepared to exercise the discretion as sought by Mr Capper’s counsel as there needed to be a very clear message sent to people who drink and drive, particularly those with previous convictions, that this was not something that they could do. It was this observation that was at the heart of the appeal advanced by Mr Campbell. I will return to it subsequently.
[13] The Judge also stated that, even if special reasons had been made out, he would not have been prepared to exercise the discretion due to the distance driven. This matter was emphasised by Mr van der Plas in his submissions for the Crown.
Approach to appeal
[14] This appeal is brought under s 250 of the Criminal Procedure Act 2011. An appeal against sentence is an appeal against a discretion and must be allowed if the
Court is satisfied that, for any reason, there is an intrinsic error in the sentence imposed and a different sentence should be imposed.3 The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.4
[15] For appeals against the refusal to impose a lesser disqualification period, pursuant to s 81 of the Act, Collins J held:5
A decision not to waive an otherwise mandatory period of disqualification from driving can involve both:
(1)an assessment of fact and application of law in determining whether “special reasons” exist; and
(2)the exercise of judicial discretion in making an order other than the mandatory disqualification.
[16] In that case Collins J went on to state that such an appeal is subject to the standards of appeal articulated by the Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar,6 being that the appellate court must reach its own view on the merits of the appeal, bearing in mind that the appellant bears an onus of satisfying the court that it should differ from the decision under appeal.7
[17] However, Collins J noted that where an appeal focuses on the way in which a discretion has been exercised:8
[T]he appellant must show that the decision maker:
(1)made an error of principle; or
(2)failed to consider all relevant matters or took into account irrelevant matters; or
(3)reached a decision that was plainly wrong.
3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.
4 Ripia v R [2011] NZCA 101 at [5].
5 Morgan v Police [2013] NZHC 3431 [Morgan] at [13].
6 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103 at [4].
7 Morgan, above n 5, at [14].
8 At [15]. The approach articulated by Collins J at [13]-[15] was reaffirmed by Wylie J in Anderson v Police [2016] NZHC 942 [Anderson] at [12].
[18] Here the argument of Mr Campbell is that the Judge took into account an irrelevant matter.
Section 81 of the LTA
[19]I will now address s 81 of the Land Transport Act (“LTA”).
[20] Section 56(4) of the LTA requires the Court to disqualify a defendant from holding or obtaining a driver licence for more than one year upon conviction for driving with excess alcohol, if it is a third or subsequent offence.
[21] The imposition of a mandatory disqualification is, however, subject to s 81 of the LTA, under which the Court is required to make the order for mandatory disqualification unless “for special reasons relating to the offence it thinks fit to order otherwise”. Those words “relating to the offence” are important.
[22]A special reason is defined in the Act as:9
A mitigating or extenuating circumstance, not amounting in law to a defence to the charge, yet directly connected with the commission of the offence, and one which the Court ought properly to take into account when imposing punishment.
[23] In oral argument Mr Campbell advanced the proposition that, based on his recent experiences, District Court Judges in the area in which he practises had adopted something tantamount to a policy that the Court could not find special reasons in any situation where it was a third or subsequent offence. As I explained to him this Court is only able to address matters directly arising in the appeal before it. He accepted that Judge Large, in this case, had not articulated such a policy and I must confine myself to saying if there is any such policy being adopted, then it is clearly not in accordance with the statute.
[24] In the case of Anderson, Wylie J summarised the relevant case law elaborating on the meaning of special reasons, holding:10
9 R v Crossen [1939] NI 106 at 112; aff’d Anderson, above n 8, at [14].
10 Anderson, above n 8.
[15] Special reasons “embrace only factors of particular or exceptional character”. The reasons must arise from the circumstances in which the offence was committed or the manner of its commission as a whole. Personal circumstances are not relevant, except to the extent that they influence the events leading up to the commission of the offence, or a part and parcel of the offending itself. The special reason must be of a sufficiently compelling nature to justify a departure from the usual consequences. The special reason must not conflict with the essential purpose of the statutory provision.
[16] A Court will not lightly find that there are special reasons in the alcohol impairment context. Whether reasonable or possible available alternatives to drink driving have or could have been explored, will often be a factor of considerable significance. When a sudden onset of illness or some other emergency may require an intoxicated person to drive, the decision to do so must nevertheless be objectively reasonable. Where all reasonable or possible alternatives are not explored, it is unlikely that special reasons will be found.
[25] Barker J in the case of Ministry of Transport v Green, set out how an approach to special reasons under s 81 should proceed:11
(a)Whether in law the particular circumstances are capable of constituting special reasons;
(b)Whether on the facts this is to be regarded as so;
(c)Whether the Court should exercise its discretion in whole or in part.
Analysis
[26] For the appellant in this case, Mr Campbell has submitted that the two affidavits filed in relation to the s 81 application satisfied the criteria required for a finding of special reasons under s 81(1) of the Act and, as a matter of law, and said there were special reasons under (i) and (ii) of the test set out by Barker J that I have just referred to. He argued that Mr Capper had proved special reasons on the facts and that Judge Large was wrong, as a matter of law, to find that the facts did not amount to special reasons. He submitted that finding then wrongly coloured (or influenced) his view of whether he should exercise his discretion under part (iii) of the test set out by Barker J in Green. He contended that Judge Large also wrongly allowed his thinking to be clouded by the fact that the appellant had previous convictions for drink driving.12 Mr Campbell therefore submitted that the Court ought to exercise its
11 Ministry of Transport v Green (1985) 1 CRNZ 492 at 494.
12 See Capper, above n 2, at [11].
discretion under s 81 and impose no disqualification or, alternatively, reduce the disqualification to a period of only six months.
[27] Mr van der Plas, for the Crown, submitted the appellant had not indicated any error of principle, failure to take account of a relevant matter, or that the decision was plainly wrong, and he said the appeal should, accordingly, be dismissed. He argued that the two possible special reasons on the facts, being that the appellant drove due to there being a risk of damage to the property and that he was set up by Ms Arnold, were expressly referred to by Judge Large in his sentencing notes, indicating that they were considered.13 He noted that Judge Large held that the circumstances did not amount to special reasons, primarily due to the distance that Mr Capper had driven14 and that while Judge Large appeared to accept that a risk of damage to property is capable in law of constituting a special reason, he found that the distance the car was driven was further than required to eliminate that risk.
[28] In response to questions from the Bench about the argument raised by Mr Campbell that the Judge had confused or mis-applied the relevance of the prior convictions to the finding of special reasons, Mr van der Plas acknowledged that some comments in [11] of the decision were somewhat confusing but said that in terms of the approach set out by Collins J that I have referred to, in Morgan v Police, the assessment or whether or not there had been special reasons was not clouded by any consideration of prior convictions, and that it was at the second stage of the test namely the issue of the exercise of judicial discretion to the extent that Judge Large had regard to prior convictions so that appears to have influenced his decision.
[29] Mr van der Plas referred to the case of Blake v Police which, it is submitted, contains a similar fact pattern.15 Again it involved an appellant who had been at the address of a female acquaintance, in that case his ex-partner. There was an argument. There was an altercation involving some violence causing injuries, and a threat to damage vehicle which was driven a short distance as a result. Again, the ex-partner
13 At [5]-[9].
14 At [11]-[12].
15 Blake v Police HC Nelson T8/02, 31 May 2002.
informed police with the result that Mr Blake was charged. Neazor J found, on the particular facts of that case, special reasons.
[30] Mr van der Plas submitted that this case was distinguishable. He noted that there was, in that case, a legitimate and likely risk to property, unlike the present case where there was no physical assault or any prior dealing with the car by Ms Arnold.
[31] On the facts, I accept Mr van der Plas’ submission that the two cases are distinguishable. Although in this case, Ms Arnold had thrown a bottle at Mr Capper, it did not cause any actual harm, either to Mr Capper or his car. And although there had been a threat to damage the vehicle, it is my view, as indeed it appears to have been the view of Judge Large, that this did not necessitate the driving of the vehicle 1.6km.
[32] I find applying Barker J’s approach in Ministry of Transport v Green, that while in law the factual circumstances that Mr Capper found himself in were capable of constituting special reasons, on the facts of this case they do not amount to such. The risk he faced of damage to his car was outweighed by the risk he posed to himself and the general public in deciding to drive a distance of 1.6km while under the influence of alcohol. There were alternatives available to him such as calling a friend or indeed calling the police to resolve the dispute, or at the very least simply driving his car around the corner.
[33] While it would have been preferable for Judge Large not to have created the impression that his decision as to whether or not special reasons were established was something that had included, or was influenced by the fact that Mr Capper had two prior convictions, I am satisfied that that was not the fundamental reason for the decision. As Judge Large noted in [12] even if he had found special reasons had been made out, he would not have exercised the discretion. Again, the critical factor as far as the Judge was concerned was the distance that was driven.
Conclusion
[34] Therefore, I decline to allow the appeal. I am, as was Judge Large, of the view that in these circumstances, special reasons have not been made out, and the appeal is dismissed.
Churchman J
Solicitors:
Cooper Campbell Law, Palmerston North for Appellant BVA Law, Palmerston North for Crown
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