D v Police HC Auckland CRI 2009-404-54

[2009] NZHC 1817

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2009-404-54

BETWEEN  D

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         22 June 2009

Appearances: Michael Kidd for Appellant

Erin Wilson for Respondent

Judgment:      22 June 2009

JUDGMENT OF HARRISON J

SOLICITORS

Michael Kidd (Auckland) for Appellant

Meredith Connell (Auckland) for Respondent

D V POLICE HC AK CRI 2009-404-54  22 June 2009

[1]      Mr D   appeals against a sentence imposed upon him in the District Court at North Shore on 16 January 2009 following his plea of guilty to one charge of refusing to permit a blood specimen to be taken: s 60(1) Land Transport Act 1998.

[2]      Judge Wade sentenced Mr D   to – (1)  six months community detention;

(2)      perform 300 hours community service; and

(3)disqualification from holding or obtaining a driver’s licence for three years, and also indefinitely.

[3]      It should be noted immediately that this was Mr D  ’s sixth conviction for an excess breath or alcohol type of driving offence since 2000.  He is 57 years of age.     In  those  cases  where  the  police  have  been  able  to  obtain  readings, Mr D  ’s breath counts have twice exceeded 900 (double the legal limit).

[4]      Mr Michael Kidd for Mr D   has advanced careful arguments in support of the appeal.  But, by reference to the table set out by Wild J in Clotworthy v Police HC Wanganui, CRI 2003-483-13, 25 September 2003 at [17], he appreciates that Mr D  ’s sentence was  generous, to say the least.    In  these  circumstances Mr Kidd has withdrawn Mr D  ’s appeal, with one exception.

[5]      Mr Kidd submits that the sentence of three years disqualification was outside the Judge’s jurisdiction.  Ms Erin Wilson for the Crown responsibly agrees.  With respect, the Judge erred.  It is clear that once an order for indefinite disqualification is made, the Court has no jurisdiction to impose a finite sentence (ss 60 and 65 Land Transport Act).

[6]      Accordingly, Mr D  ’s appeal is allowed to the extent of quashing the sentence of three years disqualification.  Otherwise the appeal is dismissed.

[7]      Although it was not necessary to call upon her in oral argument, I appreciate

the quality of Ms Wilson’s written synopsis of submissions filed for the Crown.

Rhys Harrison J