Deighton v Police

[2025] NZHC 1598

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2025-488-36

[2025] NZHC 1598

BETWEEN

ROBERT DEIGHTON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	9 June 2025
Appearances:	T K Donald for the Appellant P Hamber for the Respondent
Judgment:	16 June 2025

JUDGMENT OF ROBINSON J

This judgment was delivered by me on 16 June 2025 at 2:30 pm

Registrar/ Deputy Registrar

Solicitors/Counsel:

TK Donald, Whangārei MWIS, Whangārei

DEIGHTON v NEW ZEALAND POLICE [2025] NZHC 1598 [10 June 2025]

Introduction

[1]    Mr Robert Deighton pleaded guilty and has been convicted of one charge of driving  with  excess  blood  alcohol  on  a  third  or  subsequent  occasion.1    On     20 February 2025 he was sentenced in the District Court at Whangārei to five months’ home detention and ordered to pay $215.34 in reparations to the Police. He was also disqualified from driving for five years, with any subsequent license to be a zero-alcohol license.2

[2]    Mr Deighton appeals on the basis that the disqualification period is manifestly excessive. He does not appeal the sentence of home detention or the reparation order.

The offending

[3]    Mr Deighton is 78 years old. He has eight previous convictions for driving with excess blood alcohol content and two for refusing an officer’s request for blood specimen. There are convictions for other historic minor offences dating back to the 1960s.

[4]Mr Deighton’s most recent drink-driving convictions were on:

(a)20 May 2020: when he drove  with  459  mg  /  100  mL  of  blood. Mr Deighton was sentenced to five months’ community service. He was not disqualified from driving because special conditions applied.

(b)5 September 2009: when he drove with 594 mg / 100 mL of blood (at a time when he was disqualified from driving). Mr Deighton was sentenced to four months’ imprisonment and disqualified from driving for one year and one month.

(c)1 January 2009: when he drove with  481  mg /  100  mL of  blood. Mr Deighton was sentenced to three months’ community detention, 80

1      Land Transport Act 1998, ss 56(2) and 56(4). Maximum penalty of two years’ imprisonment. One year minimum period of disqualification.

2      Police v Deighton [2025] NZDC 3534.

hours community work and was disqualified from driving for one year and one month.

[5]    On 3 August 2024, Mr Deighton was involved in a single vehicle traffic crash in Maungatapere. Blood alcohol procedures were carried out and Mr Deighton’s sample contained 131 mg / 100 mL of blood.

District Court decision

[6]In sentencing Mr Deighton Judge Davis explained:3

This is, for me, all about public safety. You have driven with a very high reading. You have been involved in a single-vehicle accident. I am assuming that to mean you have run off the road in essence, but this is somebody getting killed waiting to happen. It is not good enough to come along to court and say: “I’ve got all these medical ailments.” Tell that to a grieving family whose child, whose husband, whose wife, whose daughter has been killed by a drink- driver. […] The Court hears all too often, “he’s got rid of the car, he hasn’t replaced it”. Ten minutes later the fella is driving off down the road.

When I look at your history Mr Deighton, I see plenty of instances where you have been convicted of driving whilst disqualified in the past. This is purely about public safety. Every single person in the back of the court here looks to the Court in this case to send you and everyone else a very clear message that drinking and driving is not going to be tolerated by the Court. In many respects, your personal circumstances are secondary to the needs to protect the public.

[7]Regarding the imposition of a driving suspension, the Judge stated:4

Section 65AC of the Land Transport Act 1998 applies. I am required to impose an alcohol interlock disqualification. I am told by Ms Donald from the bar that you do not have a vehicle, it was written off and you do not intend to replace it. There is no statutory declaration to that effect, but I am going to be pragmatic about it, I am not going to impose the s 65AC disqualification, but I am going to disqualify you from holding or obtaining a driver’s license for five years. That is beginning today, 20 February 2025. If you do get a license after that, it needs to be a zero-alcohol license. I am also directing you to pay $215.34 reparation to the police.

[8]The Judge concluded:5

I am told by Ms Donald that any sentence that is imposed is going to have some difficulty for you given medical appointments that you are likely to be

3      At [4] – [5].

4 At [9].

5 At [10].

required to attend, including some urgently. I invite the Probation Service to keep that in mind and to assist Mr Deighton as much as they are able to in ensuring he can attend appointments, including emergency appointments, when required.

Approach to appeal

[9]    This Court must allow the appeal if it is satisfied that there has been an error in the sentence imposed and that a different sentence should be imposed.6 Otherwise, the appeal must be dismissed.7 In determining whether there has been an error, and the significance of any error, it is useful to consider whether the sentence is manifestly excessive (or inadequate).8 Whether a sentence is manifestly excessive is to be assessed in terms of the final sentence given rather than the process by which it was reached.9

Submissions

[10]   Mr Deighton submits that the disqualification period of five years is manifestly excessive. He accepts that his previous history and his alcohol level are aggravating factors, as well as the fact that he crashed and wrote off his vehicle. But Ms Donald on his behalf submits that disqualification for 15-18 months, with a zero alcohol licence after that, would sufficiently protect the public. Counsel suggest that a five year disqualification is generally reserved only for cases involving injury or death.

[11]   The Crown submits that disqualification is a discretionary matter for a sentencing Judge.10 When an offender has previous convictions of this kind, a longer period of disqualification may be appropriate for public protection.11

[12]   Counsel for the Crown refer me to R v Tindle in which Duffy J noted that periods of disqualification of around five years are usually reserved for cases where the excess consumption of alcohol has affected driving which has resulted in death or serious injury; or a combination of very high levels of alcohol and extensive previous

6      Criminal Procedure Act 2011, s 250(2).

7      Section 250(3).

8      Tutakangahau v R [2014] NZCA 279.

9 At [15].

10     McKee v Police [2016] NZHC 2514 at [22].

11     Cashman v Police HC Christchurch CRI-2006-409-121, 15 September 2006 at [46].

convictions.12 Counsel also refers to the sentencing framework for excess breath/blood alcohol offending set out in Clotworthy v Police,13 and this Court’s judgment in Wilson v Police in which Heath J upheld a five-year disqualification period.14

[13]   The Crown accept that Mr Deighton’s early guilty plea and his on-going medical condition are mitigating factors, but counsel submits that in all the circumstances the five-year disqualification was appropriate.

Decision

[14]   Because this was Mr Deighton’s second conviction under s 56(1) of the Land Transport Act 1998 (Act) in less than five years, he was liable to receive an alcohol interlock sentence under s 65AC of the Act.15 However, the Judge appears to have accepted, pragmatically but with some general cynicism, that Mr Deighton would not have possession of a vehicle to the extent of being able to have it fitted with an alcohol interlock device.16 The Judge was therefore required to order disqualification for an “appropriate period” and to authorise Mr Deighton to apply for a zero alcohol licence at the end of that period.17

[15]   I agree with the Judge that in setting the appropriate period of disqualification the primary sentencing objective is public safety. Mr Deighton has a long history of drink-driving offences. His previous sentences, including a period of imprisonment in 2009, have not deterred him. The appropriate disqualification period is well in excess of the one year minimum that ordinarily applies on a third or subsequent conviction under s 56(1) of the Act when there is no alcohol interlock sentence.18 The 15-18 month disqualification period suggested by Ms Donald is, with respect, plainly inadequate.

12     Tindle v Police [2016] NZHC 2093 at [8].

13     Clotworthy v Police (2003) 20 CRNZ 439 (HC).

14     Wilson v Police [2006] DCR 655 (HC).

15     Land Transport Act, s 65AB(1).

16     Section 65AB(2)(e)(i).

17     Section 65AI(a) and (c).

18     Section 56(4)(b) and (4A)(b).

[16]   Duffy J’s observation in Tindle v R that very high levels of alcohol and extensive previous convictions could combine to justify a five-year disqualification period was with reference to previous cases as follows:19

In Fairbrother v Police, the appellant had an excess breath alcohol level of 558mg/L. He had two previous convictions for excess breath/blood alcohol offending (194mg/100mL of blood and 625mg/L of breath respectively), as well as other driving offences. The High Court upheld a period of two years' disqualification but found that the fine and disqualification were at the “top end of the range.” In R v Stone, the appellant had an excess breath alcohol level of 723mg/L of breath and had previously committed seven such offences. The Court of Appeal upheld a disqualification of three years. In Russell v Police, the appellant was sentenced on a charge of driving with excess breath alcohol where the appellant had 14 previous convictions for driving with excess breath alcohol in 1989, 1990, 1991, 1992, 1995, 1996, 1998 and four each in 2001 and 2007. The appellant was disqualified for three years. On appeal to the High Court, Potter J described the disqualification as stern, but not manifestly excessive. Finally, in R v McQuillan, the appellant was convicted on two charges of driving while disqualified and driving with excess breath alcohol based on separate incidents 11 months apart (750mg/L of breath and 186mg/100mL of blood respectively). A disqualification period of three years was found to be appropriate by the Court of Appeal.

[17]   In Tindle Duffy J held that the five-year disqualification was excessive and replaced it with a two-year disqualification period in circumstances where the defendant had three previous drink-driving convictions spanning 15-years.

[18]   I agree with the Judge’s approach to sentencing. And I have no doubt that any cynicism about the inability to impose an alcohol interlock sentence is borne of his long experience.  However, in light of  the  authorities  discussed above  I accept   Ms Donald’s submission that the five-year disqualification period was not only stern, but excessive. Mr Deighton’s offending and his personal circumstances are quite different to those in Wilson v Police.20 Whilst this was Mr Deighton’s 11th offence, it was his second in nearly 16 years. I also take into account that he is now 79 years of age and, as the Judge noted, suffers from relevant health issues. His sentence of home detention is also relevant.

19     Above n 12, at [7].

20     Above n 14.

[19]   In these circumstances I consider that disqualification for three years is appropriate, with Mr Deighton being authorised to apply for a zero-alcohol licence after that.

Result

[20]   The appeal against the period of five years’ disqualification is allowed. In its place I impose a period  of  disqualification  of  three  years,  to  take  effect  from  20 February 2025 when the disqualification was originally imposed. At the end of that period Mr Deighton is authorised to apply for a zero-alcohol licence.

Robinson J