Cooke v Police - [2021] NZHC 1364

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2021-419-22

[2021] NZHC 1364

BETWEEN
CRANE CHARLES COOKE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 2 June 2021

Counsel:

G D Prentice for Appellant B B Harris for Respondent

Judgment:

10 June 2021

JUDGMENT OF BREWER J

This judgment was delivered by me on 10 June 2021 at 11:30 am

Registrar/Deputy Registrar

Solicitors/Counsel:
G D Prentice (Hamilton) for Appellant Hamilton Legal (Hamilton) for Respondent

COOKE v POLICE [2021] NZHC 1364 [10 June 2021]

Introduction

[1] On 23 July 2020, Judge ND Cocurullo sentenced Mr Cooke1 on admitted charges of:

(a)Driving contrary to an alcohol interlock licence (second or subsequent offence).2 This offence occurred on 22 January 2020. Mr Cooke was in a traffic accident and the car he was driving did not have an alcohol interlock device fitted. His explanation was that he had recently acquired the car and had not had time to get the device fitted. There is no allegation that he had been drinking.

(b)Careless driving.3 The date of the offence was 18 January 2020.

(c)Driving with excess blood alcohol (196 milligrams of alcohol per 100 millilitres of blood) (second or subsequent offence).4 This offence also occurred on 18 January 2020.

[2] The Judge sentenced Mr Cooke to 10 months’ home detention. In respect of the careless driving, he also imposed a driver licence disqualification period of six months commencing from the date of sentence. In respect of the charges of driving in breach of his alcohol interlock licence and driving with excess blood alcohol, the Judge disqualified Mr Cooke from holding or obtaining a driver licence for three years from the date of sentencing.

[3] Mr Cooke seeks leave to appeal against the disqualification period of three years. He says that in respect of the charge of driving with excess blood alcohol, the Judge had no jurisdiction to impose a finite period of disqualification. In respect of the charge of driving in breach of his alcohol interlock licence, he contends the three years disqualification period is manifestly excessive.

1      Police v Cooke [2020] NZDC 14420.
2      Land Transport Act 1998, ss 32(1)(b) and 32(4).
3      Land Transport Act 1998, s 37(1).
4      Land Transport Act 1998, s 56(2) and 56(4). The adult legal limit is 80 milligrams of alcohol per 100 millilitres of blood.

[4] I grant Mr Cooke leave to appeal out of time. The Crown concedes the jurisdiction point and so the interests of justice require Mr Cooke’s appeal to be heard.

[5] My task is to consider whether, in relation to imposing the three years disqualification period on the two charges concerned, the Judge made an error such that a different sentence should be imposed.

The first ground of appeal

[6] I consider first the disqualification period in relation to the charge of driving with excess blood alcohol. This requires me to navigate a statutory maze.

[7] Section 65AB of the Land Transport Act 1998 (the…

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 Cooke v Police

Details

AGLC: Cooke v Police [2021] NZHC 1364
Case: [2021] NZHC 1364
Decision Date: 10 June 2021

CaseChat Overview and Summary

In Cooke v Police, Mr Cooke appealed against the sentence imposed on him by Judge Cocurullo. Mr Cooke was convicted of driving with excess blood alcohol, driving contrary to his alcohol interlock licence, and careless driving. The sentence imposed included a three-year disqualification period from holding or obtaining a driver’s licence in relation to the first two charges, and a six-month disqualification period in relation to the careless driving charge. Mr Cooke appealed against the three-year disqualification period. The Court considered two grounds of appeal. First, whether the Judge erred in imposing a finite period of disqualification from driving in relation to the charge of driving with excess blood alcohol. The Court held that the Judge had no jurisdiction to impose a finite period of disqualification in relation to this charge. Second, whether the period of three years’ disqualification should stand with respect to the charge of driving in breach of the alcohol interlock licence and the careless driving charge. The Court held that this period should be quashed and replaced with a two-year disqualification period. The Court held that the period of disqualification should be calculated having regard only to the breach of the alcohol interlock licence and careless driving charges. The disqualification period of six months imposed on the careless driving charge would run concurrently with the two years disqualification period. The appeal was allowed.

Orders