Capper v Police - [2018] NZHC 889

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Capper v Police

Details

AGLC: Capper v Police [2018] NZHC 889
Case: [2018] NZHC 889
Decision Date: 1 May 2018

CaseChat Overview and Summary

In this case, Mr Capper appealed against his sentence for driving while over the legal alcohol limit, arguing that the District Court Judge had erred in not finding special reasons under section 81 of the Land Transport Act 1998 to relieve him from the mandatory minimum disqualification period of more than one year. The key legal issue before the court was whether the District Court Judge had erred in his approach to determining special reasons under section 81 of the Land Transport Act 1998. Specifically, the court had to determine if the Judge had taken into account irrelevant matters or made an error of principle.

The court considered the facts of the case, which involved Mr Capper driving his car after an argument with an acquaintance, fearing that his car may be damaged. The court noted that while the circumstances were capable of constituting special reasons, on the facts of this case, they did not amount to such. The court held that Mr Capper's driving of 1.6km while under the influence of alcohol posed a greater risk to himself and the general public than the risk of damage to his car. The court concluded that the Judge's decision was not influenced by any error of principle, failure to take into account relevant matters, or that the decision was plainly wrong.

The appeal was dismissed, and the original sentence imposed by the District Court was upheld. The court held that special reasons had not been made out in this case and that the Judge's decision was correct.

Orders