D v Police HC Auckland CRI 2009-404-316

[2009] NZHC 2461

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2009-404-000316

D

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         17 November 2009

Appearances: C Reid and Z Dalbeth for the Appellant

A Longdill for the Respondent

Judgment:      9 December 2009 at 11:00am

JUDGMENT OF WYLIE J [Appeal against conviction]

This judgment was delivered by Justice Wylie on 9 December 2009 at 11:00am

pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors:

C Reid and Z Dalbeth, 1 Ruskin Street, Parnell, Auckland 1052

Crown Solicitor, P O Box 2213, Auckland 1140

D V NEW ZEALAND POLICE HC AK CRI 2009-404-000316  9 December 2009

[1]      Mr  D    appeals  against  a  conviction  for  driving  with  excess  breath alcohol  under  s 56(1)  of  the  Land  Transport  Act  1988.    Following  a  defended hearing at the Manukau District Court on 2 June 2009, he was convicted and sentenced by Judge A S Epati on 28 August 2009.  Mr D   was fined $650 and ordered to pay Court costs of $150.  He was disqualified from driving for 1 year and

1 day.

[2]      Mr D   filed a notice of appeal on the same day – 28 August 2009.  The notice of appeal was against conviction only.  It asserted that Judge Epati erred in fact and in law.

[3]      Mr Reid appearing on Mr D  ’s behalf made oral application for leave to appeal against sentence as well, and he sought an extension of time in that regard.

Evidence in the District Court

[4]      The evidence in the District Court established the following:

a)       At 11:44pm on Saturday 9 August 2008 a Constable Masani pulled over the appellant’s vehicle, which was being driven by the appellant on Hill Road, Manurewa, without its headlights on.  Constable Masani detected alcohol on the breath of the appellant, and asked him to undergo a passive breath test at 11:45pm.   The appellant failed this test.    Constable  Masani  then  required  the  appellant  to  undergo  a breath screening test at 11:46pm.   The appellant failed that test. Constable Masani then required the appellant to accompany him to the Manurewa Police Station for an evidential breath test, a blood test, or both.  The constable gave the appropriate caution under the New Zealand Bill of Rights Act 1990 to the appellant and drove him to the Manurewa Police Station.

b)At  12:03am,  Constable Masani  once  again  gave  the  appellant  his rights under  the  New  Zealand  Bill  of  Rights  Act.    Inter  alia  the statement  of  rights  read  to  the  appellant  recorded  that  the  rights

continued throughout the breath/blood alcohol procedures.   The appellant signed a form confirming that he had been advised of his rights  and  acknowledging  that  he  did  not  wish  to  consult  with  a lawyer.

c)       At 12:05am, Constable Masani required the appellant to undergo an evidential breath test.  The evidential breath test gave a result of 907 micograms of alchol per litre of breath.

d)At 12:10am, Constable Masani advised the appellant of the results of the evidential breath test.   He read the standard Advice of Positive Evidential Breath Test Form used by the Police to the appellant.  The appellant was informed that if he did not, within 10 minutes, request a blood test, the evidential breath test that he just undergone could of itself be conclusive evidence to lead to his conviction for an offence against the Land Transport Act.   He was told that if he wished to undergo a blood test, he had to request a test within 10 minutes.  He was also told that if he did undergo a blood test, the result of the evidential  breath  test  could  not  be  used  in  Court  proceedings  to support a charge of driving with excess breath alcohol, but that the result of the blood tests could be used to support a charge based on an analysis of his blood alcohol concentration.  This advice was given at

12:14am, and the 10 minute period for the appellant to elect to take a blood test then commenced.

e)       By 12:26am, the appellant had not elected to take a blood test, and he was issued with a traffic offence notice and subsequently with a summons.

[5]      The appellant was not given a further caution when the Advice of Positive Evidential Breath Test Form was read to him and he was told of his right to elect to take a blood test.

[6]      Constable Masani was cross-examined as to why the appellant was not given a further caution after the evidential breath test result was obtained.  The following exchange occurred:

Q.        Now in the usual way of things, in these breath and drink/driving blood alcohol cases, there’s a second Bill of Rights form, which is usually given after the evidential breath test result is obtained.  But you haven’t produced a second Bill of Rights form.  I want to know why please?

A.        I did not produce a second Bill of Rights form because I did not go through the second form with the defendant.

Q.        Can you tell us why you didn’t go through the second form, because

– because what?

A.        I cannot remember why I did not go through the second Bill of

Rights form.

[7]      The information laid against the appellant alleged that he had committed an offence against s 56(1) of the Land Transport Act, in that he:

Did  drive  a  motor  vehicle  on  a  road  namely  Station  Road  while  the proportion of alcohol in [his] breath exceeded 400 micrograms of alcohol per litre of breath in that it was 907 micrograms of alcohol per litre of breath [he] having been convicted at least twice previously of an offence against any of ss 56(1) or 56(2) or 58(1) or 60(1) of the Land Transport Act 1988 or the corresponding provisions of the Transport Act 1962.

[8]      The appellant has two previous convictions for driving with excess blood alcohol – the first offence was committed in September 1984 and the second in March 2006.

District Court Judge’s decision

[9]      Judge Epati recorded   that the Police’s failure to give the appellant a third Bill of Rights caution was in issue.   He referred to the decision of the Court of Appeal in Rae v Police [2000] 3 NZLR 452. He held that there was no absolute right to a re-statement of the Bill of Rights caution before a suspect motorist is given an election of whether or not to provide a blood specimen. He noted that the appellant was given the appropriate caution at the road side and again before the evidential breath test. The Judge expressed the opinion the Police can re-state rights thereafter

but that it is not necessary they do so.   He held that each case depends on the circumstances.

[10]     His Honour did not address the form of the information which had been laid against the appellant.  While he did not expressly refer to the conviction as being the appellant’s third conviction for driving with excess blood alcohol, it is apparent that he treated it on that basis, because he noted that the minimum disqualification was

12 months and one day.   That is the minimum sentence appropriate for a third or subsequent offence.

Points on appeal

[11]     Mr Reid appearing for the appellant submitted:

a)       That the information was defective, and that the appellant could only be sentenced as a person facing a first or second charge under the drink driving provisions of the Land Transport Act, and not as a third time offender.

b)That the evidential breath test result confirming the appellant’s breath alcohol level of 907 micrograms of alcohol per litre of breath should have been ruled inadmissible because the appellant’s right to counsel pursuant to s 23(1)(b) of the New Zealand Bill of Rights Act was breached.

c)       That the appellant should have been sentenced as a first time offender, and not as a third or subsequent offender, and that the sentence which was imposed was excessive.

[12]     Ms Longdill for the Crown submitted:

a)       That the body of the charge in the information specifically mentioned the two previous convictions.

b)That there was no breach of s 23(1)(b) of the New Zealand Bill of Rights Act, and that if there was, any breach was inconsequential and had no casual connection to the evidential breath test result.  Even if there was a breach, s 30 of the Evidence Act 2006 applied, and that the breath test results should be held to be admissible.

c)       That the appeal against sentence should be dismissed, because the sentence imposed could not be characterised as manifestly excessive.

Analysis

[13]     I deal first with the information, then with the failure to give a third Bill of

Rights caution, and finally with the sentence imposed.

Information

[14] The information laid against the appellant is set out above at [7].

[15]     Relevantly s 17A of the Summary Proceedings Act provides as follows:

(1)       If  a  defendant  is  charged  with  an  offence  to  which  this  section applies, the information must disclose the range of penalties available on conviction for that offence.

(2)      This section applies to offences that carry— (a)     ...

(b)       A higher maximum penalty on conviction for that offence if the defendant has a specified number of previous convictions for that or any other specified offence.

(3)       ...

(4)       If an information that is required by subsection (1) to disclose the range of penalties available on conviction for that offence does not do so,—

(a)       The  information  may  be  amended  before  or  during  the hearing, in accordance with this Act; and

(b)      If the information is not amended, and the defendant is convicted, then the maximum penalty for which the defendant is liable is the penalty to which he or she would be liable if he or she

did not have previous convictions for the same or any other specified offence.

(5)       ...

[16]     Here the appellant was charged with driving with excess breath alcohol under ss 56(1) or (2) of the Land Transport Act.  The information did not refer to s 56(4) of the Land Transport Act.  It provides as follows:

If a person commits a third or subsequent offence against subsection (1) or subsection (2) or [any of sections 58(1), 60(1), or 61(1) or (2)] (whether or not that offence is of the same kind as the person's first or second offence against any of those provisions), the person commits an indictable offence and on conviction—

(a)       The maximum penalty is imprisonment for a term not exceeding 2 years or a fine not exceeding $6,000; and

(b)       The court must order the person to be disqualified from holding or obtaining a driver licence for [more than 1 year].

[17]     The  offence  with  which  the  appellant  was  charged  does  carry  a  higher maximum penalty if the defendant has two or more previous convictions.   It falls within the terms of s 17(2)(b).  The information should therefore have disclosed the range of penalties available on conviction for the offence charged.

[18]      It could have been amended before or during the course of the hearing before Judge Epati under s 17A(4)(a).  It is clear from the notes of evidence that the issue was raised at the hearing.   Indeed Mr Barnes, appearing for the Police, sought an amendment.  Judge Epati asked him to put the request in writing, and indicated that he would then decide the issue.  This occurred, but unfortunately, the Judge seems to have overlooked the matter and the information was not amended.

[19]     I agree with the judgment of Barragwanth J in Bowcock v Police HC AK CRI

2006-404-4041 2 August 2006 at [14] and [15].   Section 17A(4)(b) applies.   The maximum sentence available to the Police is that to which the appellant would have been liable if he did not have two previous convictions for driving with excess blood alcohol.

[20]     I deal below with whether or not the sentence here imposed is excessive.

Section 23(1)(b) of the New Zealand Bill of Rights Act 1990

[21]     Section 23(1)(b) of the New Zealand Bill of Rights Act provides as follows:

(1)Everyone who is arrested or who is detained under any enactment— (a)     ...

(b)       Shall have the right to consult and instruct a lawyer without delay and to be informed of that right; and

...

[22]     Mr Reid also referred to the practice note on Police questioning issued by the Chief Justice under s 30(6) of the Evidence Act 2006.   The relevant parts of the practice note read as follows:

1.        ...

2.        Whenever a member of the police has sufficient evidence to charge a person with an offence or whenever a member of the police seeks to question a person in custody, the person must be cautioned before being invited to make a statement or answer questions. The caution to be given is:

(a)       that the person has the right to refrain from making any statement and to remain silent

(b)       that the person has the right to consult and instruct a lawyer without delay and in private before deciding whether to answer questions and that such right may be exercised without charge under the Police Detention Legal Assistance Scheme.

(c)       that anything said by the person will be recorded and may be given in evidence.

3.        ...

[23]     Mr Reid submitted that the Police only had sufficient evidence to charge the appellant with an offence once the evidential blood test had been completed, and that thereafter the appellant ought to have been cautioned before he was given the right of election to have a blood test.

[24]     The practice note was issued pursuant to s 30(6) of the Evidence Act.  The relevant parts of s 30 read as follows:

[5]       For the purposes of this section, evidence is improperly obtained if it is obtained—

(a)       in consequence of a breach of any enactment or rule of law by a person to whom section 3 of the New Zealand Bill of Rights Act 1990 applies; or

(b)       ...

(c)       unfairly.

(6)       Without limiting subsection (5)(c), in deciding whether a statement obtained  by a  member  of the  police  has  been  obtained  unfairly for  the purposes of that provision, the Judge must take into account guidelines set out in practice notes on that subject issued by the Chief Justice.

[25]     While the practice note in its terms is confined to statements obtained by the Police  and  to  Police  questioning,  the  guidelines  it  discusses  extend  to  the breath/blood alcohol testing procedures created by the Land Transport Act.   The practice note reinforces the rights detailed in s 23(1)(b).  Under s 30(6), a Judge must take the practice note into account in deciding if evidence has been gathered unfairly. If the Police do not accord a person who is arrested or detained the rights conferred by  s  23(1)(b)  and  give  the  appropriate  caution  discussed  in  the  practice  note, evidence may be excluded as being improperly obtained.

[26]     Here the appellant had been detained by the Police when s 69 of the Land Transport Act was invoked, and he was required to accompany the Police officer to the Manurewa Police Station to undergo an evidential breath test or a blood test, or both.     That  detention  continued  throughout  the  breath  and/or  blood  testing procedures, and did not come to an end until the expiry of the 10 minute election period – see Rae.  It follows that the provisions of s 23(1)(b) were engaged, and that the appellant was entitled to the right to consult and instruct a lawyer without delay and to be informed of that right.  The appellant was informed of his rights at the road side.  He was informed of his rights again at the police station at 12.03 a.m., before he underwent the evidential breath test.   Were the Police required to inform the appellant of his rights for a third time, when he was given the right of election to take an blood test?

[27]     The issue was discussed in Rae.   Mrs Rae had been stopped by the Police while  driving  a  vehicle.    She  was  given  a  breath  screening  test  which  proved

positive.  She was taken to the police station for an evidential breath test. After being advised of her right to do so, she consulted a lawyer before undergoing an evidential breath test.  The evidential breath test showed a positive result.  She was advised of the result, and of her right to request a blood test within 10 minutes.  She was again advised of her right to consult a lawyer.  She said that she wanted to speak to her lawyer again but she was not able to make contact with him.  A list of lawyers on the wall of the room was not pointed out to her and the Constable dealing with the matter was unsure whether she had spoken to a lawyer or not.  Ten minutes passed. She did not elect to have a blood test.  She was given a traffic offence notice and a summons.   In the Court of Appeal Blanchard J delivered judgment for himself, Richardson P and Thomas and Keith JJ.  Their Honours held that the right to consult a  lawyer  under  s  23(1)(b)  of  the  New  Zealand  Bill  of  Rights  Act  continued throughout the entire process, as did the obligation of the enforcement officer to facilitate the exercise of that right.  They held that Ms Rae had to be provided the right in a real and practicable way once she indicated that she wished to speak to her lawyer.  The Court observed as follows:

[57]      ... The obligation matches the circumstances. What is required at any particular point during the procedures will depend upon the circumstances at that time, including of course the requirements of the Act. It is not to be overlooked that it may only be when the evidential breath test result is ascertained that the motorist appreciates that an offence may have been committed.  What  has  to  be  provided  in  that  circumstance  is  a  fair opportunity for the detained person to consider and decide whether or not to exercise the right ... . It is a question of whether the motorist has been afforded the facility “to exercise the right in a real and practicable way once there has been an indication that he or she wishes to do so”, as Neazor J put it in Steel v Police (1994) 11 CRNZ 383 at p 391.

[58]      Prior to the taking of an evidential breath test a full advice of rights and active facilitation of contact with a lawyer, where the motorist evinces a wish to do so, is necessary. As a  matter of now standard practice, this includes supplying a telephone in circumstances of reasonable privacy and making  available  and  calling  attention  to  a  telephone  book  or  a  list  of lawyers willing to give advice to detained motorists.

[59]      It appears from material made available to the Court that, at least in some parts of the country, the police have also wisely adopted the general practice of repeating full Bill of Rights advice at the beginning of the ten- minute period regardless of whether the motorist has already exercised the s

23(1)(b) right and spoken to a lawyer. This was done in the present case. The extent of the facilitation which may be necessary at this time will depend

upon the circumstances in each case, including what has already occurred by

way of exercise of the right and whether the motorist indicates a wish to take legal advice again before making an election in relation to a blood test. The

police would at this stage of the process be justified in simply reacting appropriately to what appears to be the wish of the motorist in regard to the s

23(1)(b) right without actively telling the motorist what he or she can be assumed already to understand, such as the existence of the list of lawyers

where that has previously been pointed out.

Tipping J issued a separate decision agreeing with majority but for different reasons. He did not expressly refer to the desirability or otherwise of a further caution at the beginning of the 10 minute period.

[28]     The observations of the Court of Appeal in the first sentence at [59] are obiter.   Nevertheless the majority was clearly of the view that the Police acted “wisely” when they adopted the practice of repeating the full Bill of Rights advice at the beginning of the 10 minute period regardless of the fact that the motorist had already been given a previous statement of her rights.   The observation is obviously highly persuasive.

[29]     The  issue  has  also  been  considered  in  the  High  Court  on  a  number  of occasions.  Some of the cases pre date Rae.  Others post date it.

[30]     In Litten v Police (1996) 13 CRNZ 604 the Police arrested a motorist who had failed a breath screening test.   The police officer advised the motorist of his rights under the New Zealand Bill of Rights Act at the time of arrest.  He then took him back to the police station.  The police station did not have an evidential breath test device, and the officer asked the motorist to provide a blood specimen.  He did not re-advise the motorist of his right to consult a lawyer.  The motorist refused to provide the specimen of blood, and he was then arrested and charged in relation to that refusal.   Elias J, as she then was, referred to the obligation on the police to advise motorists of the opportunities provided to them by s 23.  She noted that the opportunity and the concomitant responsibility of the Police to inform and delay further testing or questioning are tempered by what is realistic, and that whether reasonable opportunity has been given depends on what is reasonable in all the circumstances.   She noted that the opportunity intended by Parliament pursuant to s 23 is not to be reduced to an empty ritual by being recited in circumstances in which there is realistically little prospect of a driver understanding the offer that is being made if there is a reasonable opportunity for it to be given or repeated in

circumstances where it has a better chance of being appreciated.   She went on to comment that there will be circumstances in which the s 23 information will have to be repeated – for example where the nature of an investigation changes significantly. Beyond that, she commented that the need to repeat the information turns very much on all the facts, applying the policy of s 23.  On the facts before her, she concluded that the motorist’s state was such, that there was a real possibility that the caution he was given at the roadside at the time of arrest may not have been heard or understood by him.  She noted that his refusal to provide a blood test was a distinct offence, not certain at the time of the initial arrest, and upon which he could have obtained benefit from discussions with a lawyer.   She therefore concluded that the caution should have been repeated at the police station, and without it, the appellant did not have reasonable opportunity to obtain the legal assistance to which, pursuant to s 23, he was entitled.   She refused to admit the evidence as to refusal, and quashed the conviction.

[31]     In Lewis v Police HC AK AP13/96 15 July 1996 Salmon J, the motorist had waived  his  right  to  counsel  after  being required  to  accompany.    He refused  to undertake  an  evidential  breath  test.    He  was  then  required  to  submit  a  blood specimen,  and  again  he  refused.    When  confronted  with  the  consequences  of refusing, the motorist changed his mind and permitted a blood specimen to be taken. The Police did not caution the motorist after he was asked to provide a specimen of blood.   On appeal it was argued that the police failed to comply with s 23(1)(b). Reliance was placed on  Litten.   Salmon J  dismissed the appeal, commenting as follows:

In the circumstances of the present case I conclude that there was no obligation to repeat the recital of rights.  The appellant was in fact advised of his rights on two occasions.   The first was at the time he was asked to accompany the constable to the police station.  The second was after he had been taken to the alcohol suite at the Auckland Central Police Station.  The evidence  does  not  disclose  the  time  when  the  appellant  and  the  officer arrived  at  the  station,  but  it  was  5.51  a.m.  when  he  was  required  to accompany the officer to the station.  He was required to undergo a blood test at 6.12 a.m.  The time between being first advised of his rights and being asked to undergo the blood test was about 21 minutes.  The time between the second recital of rights and being asked to undergo the blood test was obviously a shorter time than that.  There is no suggestion that the appellant did not understand his rights.  Indeed, from the evidence it is quite clear that he did.  That being the case I hold that there was no breach of s.23(1)(b) and the fourth ground of appeal fails.

[32]     In Nye v Police HC WN AP 106/01 30 May 2001 Ellis J, the motorist had been given his rights at the road side, and upon arrival at the police station.   He failed to co-operate when asked to take an evidential breath test.  The Police officer then required him to provide a specimen of blood.  He refused to consent, and he was arrested for that offence.  It was argued that it was incumbent upon the Police to re- advise the motorist of his rights prior to requiring the blood specimen.   Ellis J dismissed the appeal against conviction, commenting as follows:

... I consider the fact that the constable had given the required warning and advice twice before the evidential breath test was administered, the second at the police station immediately before, the fact that the appellant clearly understood  his  rights,  and  the  fact  that  the  constable  explained  the requirement for a specimen of blood and the consequences of refusal, all clearly establish that the appellant was properly and adequately warned and advised, and so in this case no further warning or advice was required.

[33]     The issue arose again in Harvey v Police HC WN AP 104/01 23 August

2001, Goddard J.  Again the Police officer advised the motorist of his rights at the start of the procedure, but not after the positive evidential breath test. Goddard J commented as follows:

[23]      ... there was no substantial change in circumstances or in the nature of  the investigation  against  the  appellant  between the  time  he  was  first advised of his rights and the over-limit evidential breath test result was obtained, and the time at which he was given the option of considering whether to elect to undergo a blood test. What is clear from the conversation between the appellant and the constable is that he was fully alive to his situation and conscious of the choices with which he was presented. He had, only a short period of time prior, unequivocally declined his right to consult counsel. He also had some previous experience of the system, although this is not a factor that should count against him nor excuse any denial of his rights. However, I do not regard the appellant’s situation as one involving denial of rights: rather it was a situation where his rights had been clearly given only a short time prior and where no substantial change in the nature of the investigation or any time lapse had occurred.

[24]     The decision in Rae does not go as far as to impose an absolute obligation to readvise the right to counsel prior to commencement of the 10 minute period, although the decision does highlight the fact that it may not be until an evidential breath test result is ascertained that a suspect fully appreciates that an offence may have been committed. However, what the Court of Appeal emphasised in Rae was the provision of fair opportunity for a detained person to consider and decide whether or not to exercise their right to counsel.

[25]      In the present case I am satisfied the appellant was under no illusions about his rights and his ability to exercise them and nor was he prejudiced by any failure to readvise those rights.

[34]     In Brown v Police HC AK CRI 419-87-04 22 October 2004 a full Court comprising Priestley and Winkelmann JJ referred to Rae. Their Honours observed at [66] that circumstances can arise that require repetition of the recital of rights to properly facilitate the exercise of a suspect’s rights under s 23. On the facts before them they concluded that there was nothing which required repetition.

[35]     In Hunter v Police [2005] DCR 936, Laurenson J, the motorist had been advised of his rights after being asked to accompany the Police.   He wanted to contact a lawyer.  Attempts were made to contact a lawyer unsuccessfully for some

40 to 50 minutes.  Thereafter the Police officer requested the driver to undergo an evidential breath test.  This was refused.  The Police officer then requested a blood sample.  The driver agreed, and a blood sample was taken.  On appeal it was argued that there had been a breach of s 23(1)(b).  Laurenson J held that where the motorist wishes to exercise s 23(1)(b), and prior attempts to do so have been unsuccessful, there is a further obligation to re-advise and facilitate before the taking of the blood sample.   Given that that had not occurred, he held that there was a breach of s

23(1)(b).    He  then  went  on  to  consider  whether  or  not  evidence  of  the  blood specimen should be excluded.  He noted that if the right had not been breached, there would almost certainly have been no effect on the final outcome.  He concluded that it was difficult to see any advice that would have provided a legal basis for objection to the blood test.   Balancing the various factors, including the centrality of the evidence to the prosecution, and the type of offence  (in an  area of  real public concern),   His Honour held that the District Court had been entitled to admit the evidence of the blood test.

[36]     In Brosnahan v Police [2009] 2 NZLR 777, there was a breath screening test after a motorist was stopped by the Police while driving. He agreed to accompany the Police and he was given a caution. Before undergoing an evidential breath test, he was cautioned again and he exercised his right to seek legal advice. He subsequently asked to speak with his lawyer again, but he did not explain why. The Police refused to facilitate the second request. The motorist then refused to supply a

breath sample.  He was required to provide a blood sample.  At this point, he was given another caution and told of his right to contact his lawyer again.  The motorist did not seek to speak to his lawyer again.  A blood sample was provided, and he was subsequently convicted on the basis of this sample.  He argued that the sample had been illegally obtained, because his right to a lawyer had been breached.  Cooper J concluded that there had been no breach of the motorist’s rights and he dismissed the appeal.  He noted at [35] that where a suspect has been given and exercised the right to seek legal advice, unless there has been some material change in circumstances or some event which plainly presents as a basis for seeking further advice, the Police will not err if they do not offer an opportunity to take further legal advice.

[37]     To return to the present case, here the appellant was advised of his rights under s 23 on two occasions – the first at 11.46 p.m. or shortly thereafter, at the roadside, and the second at 12.03 a.m. at the police station.  There is nothing in the evidence to suggest that the appellant was agitated, or that he was so intoxicated as to be unable to comprehend the advice which was given to him.  Indeed, at the police station he signed a form acknowledging that he had been advised of his rights, and recording that he did not wish to consult with a lawyer.  That form also recorded that the rights continued throughout the breath/blood alcohol procedures.   Only seven minutes later the appellant was told of the results of the evidential breath screening test.  In the circumstances of this case, I do not consider that it can be said that the appellant’s s 23 rights were infringed.   It is clear that the appellant understood his rights, and that he was properly advised of the same.  Once the evidential breath test results were known, the police had an evidential foundation for the charge.   The appellant knew the jeopardy he was in.   There was no substantial change in his circumstances, or in the nature of the investigation between 12.03 a.m. when he was cautioned in the police station, and 12.10 a.m. when he was given the option of considering whether to undergo a blood test.

[38]     Further,  in  the  present  case  the  appellant  was  convicted  of  driving  with excess  breath  alcohol,  in  reliance  upon  the  evidential  breath  screening  tests conducted at the police station.   The appellant was appropriately cautioned before those tests were carried out.

[39]     Even if I am wrong in concluding that the evidence was not improperly obtained, I record that in any event, I would have exercised my discretion under s 30 of the Evidence Act, and held that Judge Epati was entitled to admit the evidence of the evidential breath test result.  Section 30(5) of the Act provides that evidence is improperly obtained if it is obtained in consequence of a breach of any enactment, or unfairly.  Here the evidential breath test result was not obtained unfairly, and there is no causal link between such breach as occurred and the challenged evidence. Further, application of the balancing test required under s 30(2)(b) in my judgment compels the conclusion that exclusion of the breath test result would be wholly disproportionate to any breach found.  The rights afforded by s 23(1)(b) are highly important, but in the circumstances of this case, there was no serious intrusion on those rights.  Two cautions were given.  The Police’s failure to give a third caution cannot be said to have been deliberate, reckless, or done in bad faith.  The evidential breath test result is very good evidence, and its integrity is not in dispute.   The offence of driving with excess breath alcohol is serious.   In the present case, the appellant was well over the legal limit.  Driving in that condition placed the safety of other road users at risk.  In my view, exclusion of the breath test results would be a disproportionate response.

Sentence

[40]     Given my findings in regard to the information recorded above, the appellant is granted leave to appeal against sentence out of time.

[41]     As I have noted above, because of the terms in which the information was framed, the maximum sentence available to the police  is that to which the appellant would have been liable if he did not have previous convictions for driving with excess blood alcohol.  Pursuant to the provisions of s 56(3) of the Land Transport Act, the maximum penalty which could have been imposed on the appellant for driving with excess breath alcohol was imprisonment for a term not exceeding three months or a fine not exceeding $4,500 and the Court was required to order that the appellant be disqualified from holding or obtaining a driver’s licence for six months or more.

[42]     It follows that the sentence imposed by Judge Epati was open to him.  The question becomes whether it is manifestly excessive.

[43]     Pursuant to s 17A(5) of the Summary Proceedings Act, the defect in the information did not affect the right of the Court, when sentencing the appellant, to take his previous convictions into account.

[44]     In McEachen v Police [1995] 2 NZLR 251 the High Court was considering four appeals involving drink driving. Each of the appellants had no previous convictions, had been stopped at a roadblock, had co-operated fully with the police, and had pleaded guilty at the first possible opportunity. The periods of disqualification were imposed by the District Court as follows –

a)        Ambrose (807mcg), fined $1,100, disqualified for 12 months

b)        McEachen (875 mcg), fined $1,100, disqualified for 12 months c)     Monk (185 mg), fined $1,000, disqualified for 12 months

d)       Scott (1,047 mcg), fined $1,250, disqualified for 14 months.

The  Court  considered  statistics  drawn  from  527  sentencing  decisions  of  first offenders referred to by counsel.   Fines for those with blood alcohol readings in excess of 201 mcg ranged from $500 to $3,000, with an average of $1,058, and the disqualification  period  ranged  from  six  to  18  months,  with  an  average  of  9.35 months.  A full Bench – Thorp and Morris JJ - held that the disqualification period imposed on Mr Scott was not manifestly excessive and his appeal was dismissed.  In relation to the other three offenders, the disqualification periods were reduced to nine months.

[45]     There are distinguishing factors in the present case.   First, the appellant’s breath alcohol level was 907 mcg.  Secondly, each of the motorists involved in the McEachen case pleaded guilty at the first possible opportunity.  The appellant in this case did not do so.  Normally the penalty imposed in the case of a guilty plea will be

approximately one-third lower than that imposed where there is no such plea, and the matter proceeds to a defended hearing.

[46]     In the circumstances, in my view it cannot be said that the sentence imposed by Judge Epati was manifestly excessive.   Indeed, given the maximum sentence available to the Judge for a first offender, and given that the Judge was entitled to take into account the appellant’s two previous convictions, it might be regarded as a relatively light sentence.

[47]     The appeal is dismissed.

Wylie J