Donaldson v Police HC Auckland CRI 2010-404-129

[2010] NZHC 865

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2010-404-129

BETWEEN  OLIVE PHYLLIS DONALDSON Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         8 June 2010

Counsel:         S D Patel for Appellant

P Singh for Respondent

Judgment:      10 June 2010

JUDGMENT OF HEATH J

This judgment was delivered by me on 10 June 2010 at 11.00am pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:
Crown Solicitor, PO Box 2213, Auckland
Counsel:

S D Patel, PO Box 194, Shortland Street, Auckland

DONALDSON V NEW ZEALAND POLICE HC AK CRI 2010-404-129  10 June 2010

The appeal

[1]      Ms Donaldson appeals against a sentence imposed in the District Court at Waitakere, following her conviction on charges of driving with an excess breath alcohol concentration and careless use of a motor vehicle.  Ms Donaldson challenges the period of disqualification imposed.   She was disqualified from holding or obtaining a driver licence for a period of 12 months from the day of sentencing.

The facts

[2]      The facts to which Ms Donaldson pleaded guilty were undisputed.

[3]      At 11.50pm on Saturday 30 January 2010, Ms Donaldson was driving a Toyota motor vehicle along Te Atatu Road in Te Atatu South.  She “side-swiped” a Nissan motor vehicle parked on the side of the road, lost control of her vehicle, drove over the footpath on the left hand side of the road and then crashed into a fence, bringing her vehicle to a stop.

[4]      Police officers arrived at the scene within 5 to 10 minutes.  Ms Donaldson admitted having been drinking beer, saying that she had had “quite a few”.

[5]      Breath  testing  procedures  were  undertaken.     An  evidential  breath  test produced a result of 1093 micrograms of alcohol per litre of breath, considerably in excess of the legal limit of 400 micrograms of alcohol per litre of breath.

[6]      At   the   time   that   the   breath   testing   procedures   were   undertaken, Ms Donaldson offered no explanation to police officers about the circumstances that led to her driving under the influence of alcohol.

[7]      Ms Donaldson had previously been convicted on a charge of driving with an excess breath alcohol level.  That conviction was entered on 12 January 2005.  On that  occasion,  Ms  Donaldson’s  breath/alcohol  reading  was  752  micrograms  of alcohol per litre of breath.

The additional evidence

[8]      While accepting the prosecution’s summary of facts, Ms Donaldson asked the Court not to impose any period of disqualification from holding or obtaining a driver licence.     Four  affidavits  were  filed  to  support  that  submission:     one  from Ms Donaldson, one from a friend, one from her daughter and another from her employer.   Reliance was placed on two discrete factors.   One arose out of the circumstances in which Ms Donaldson came to offend.   The other related to the financial consequences of any disqualification on her continued employment.

[9]      Ms Donaldson referred to the incident that led to the positive breath test being taken.  She deposed that she had been with three family members at the home of their late parents, in New Lynn.  She had arranged to stay over at the property, as she knew she would be drinking.   She did not anticipate driving until the next morning.  After working from 6am until 7pm she began to eat and drink with family members who had assisted with work at the property.

[10]     Ms Donaldson retired for bed at about 10pm.  She says her next memory was being roused from her sleep after “feeling hands on my legs”.  She says that she felt herself being turned over onto her stomach with her legs being pulled apart.  At that point she deposes that she realised a family member was standing at the foot of the bed, had pulled her legs apart and had placed his head near her groin region.  She kicked out, leapt off the bed and remonstrated with her assailant.  At that point she was naked from the waist down.

[11]     Ms Donaldson says she has no recollection of events that occurred from the alleged indecent assault until she crashed the motor vehicle.   After the crash, she telephoned an old friend, Mr Kinghan.  He came to the scene.  Mr Kinghan confirms that Ms Donaldson told him an event of the type described had occurred.  However, neither Ms Donaldson nor Mr Kingham said anything about the incident to the Police.

[12]     Ms Donaldson’s daughter confirmed that she had been present when work was undertaken  at the  New  Lynn  property.   She had  also been responsible for

purchasing alcohol for the evening’s activities.  The daughter knew of her mother’s prior conviction for driving with an excess breath alcohol concentration and only went to purchase alcohol on her mother’s promise that she would not drive.

[13]     The following morning, at about 8am, the daughter received a telephone call from  her  mother,  advising  that  she  had  been  involved  in  a  traffic  accident  the previous night.   When the daughter remonstrated with her about driving, after drinking alcohol, Ms Donaldson appeared distressed.   When the daughter saw her mother later that day, Ms Donaldson explained what had happened in a manner that is consistent with the evidence in her affidavit.

[14]     Mr Hopkins, the general manager of Ms Donaldson’s employer, deposes that Ms Donaldson is required to travel to various sites around the greater Auckland area as part of her employment.  There are no other duties she could perform in the event of disqualification.  While no clear deposition to this effect has been made, it seems likely that Ms Donaldson could lose her employment if the disqualification stands.

[15]     None of the deponents were required to be present for cross-examination in the District Court.   In those circumstances, I proceed on the assumption that their evidence is truthful and reliable.

Sentencing in the District Court

[16]     Ms Donaldson came up for sentence before Judge Everitt on 19 April 2010. Her counsel submitted that the circumstances set out in the affidavits constituted “special reasons” for not imposing an (otherwise) mandatory disqualification[1]  or circumstances justifying the imposition of a community-based sentence, in lieu of a disqualification.[2]

[1] Section 81 of the Land Transport Act 1998.

[2] Section 94 of the Land Transport Act 1998.

[17]     Judge   Everitt   considered   both   submissions   carefully  before   imposing sentence.   In rejecting them, the Judge was influenced primarily by public interest factors relating to road safety.  He was concerned that the events in issue involved

bad driving, with a very high level of alcohol, by a person who had previously been convicted of the same offence.

[18]     Having reviewed the affidavits, the Judge took the view that the evidence was “rather vague”, particularly in relation to what occurred after the alleged indecent assault[3]  and the time at which the vehicle was crashed.  There was no independent evidence of what other steps could have been taken by Ms Donaldson to alert others to the alleged indecent assault or to have taken steps to report it.   The Judge was concerned that the evidence might be tainted by the fact that “[Ms Donaldson’s] memory was so badly affected that she had no idea what was going on”.  In those circumstances, the Judge was not prepared to accede to submissions under either s 81

or s 94 of the Land Transport Act 1998 (the Act).

[3] I use the term “alleged” not to question what Ms Donaldson says but because the alleged perpetrator has never had an opportunity to respond to the allegations.  Because Ms Donaldson’s evidence was not challenged in the District Court, I proceed on the basis it is correct.

[19]     In relation to the s 81 issue, Judge Everitt said:

[19]      Driving with excess breath alcohol can be a circumstance giving rise to a special reason.  There have been a number of cases where the Courts have held that to be the case, where the person is driven for medical emergency or an emergency of some nature such as a brutal assault, where the person has driven for a very short period of time or short distance to escape.

[20]      Ms Donaldson did not.  She drove for more than a short distance and she has not explained the need to drive in any event.  The incident that took place that she described was unsavoury to say the least but there is nothing in her affidavit to indicate why she just did not leave the house, go down the street, go next door, go somewhere, awake one of the other persons in the house, call for help, whatever.   There is just nothing for the Court to objectively assess the allegations and assertions on.  There may be reasons why she did not want to do various things but there is no good reason I find here for her to drive at all.  There is nothing before me that indicates that she had to drive.

[21]      Even if I was minded to consider that perhaps that was calling for a counsel of perfection, which I do not believe it is, but even so the public interest must take precedence over Ms Donaldson’s drunken inability to recollect, or whatever was going on once she was awoken.

[22]      To   drive   a   motor   vehicle   whilst   drunk   at   that   level,   1093 micrograms, puts the public in danger.  How many times in recent days have we seen drunks killing people on the roads.  No doubt they had their reasons to be driving.

[23]      This lady left the road, smashed into a parked vehicle through a fence.    That  could  easily  have  resulted  in  a  ‘head  on  collision’  killing innocent people.   I have weighed her employment prospects and the difficulties.  That is a natural consequence which she has to face for deciding to drive whilst drunk.   The applications are really doomed to fail through lack of proper objective information.

[20]     In relation to the s 94 application, the Judge took the view that a community- based sentence would put the public at undue risk of a person who had driven while severely intoxicated on more than one occasion.  He called in aid a recent decision of the Supreme Court on the drink/driving legislation.  In Aylwin v Police,[4] that Court said:

[4] Aylwin v Police [2009] 2 NZLR 1 (SC).

[17] Every driver of a motor vehicle on the roads of this country should by now be aware that driving after consuming more than a small amount of alcohol is dangerous, illegal and socially unacceptable. The great majority of drivers comply with their obligations in this respect. A small minority do not. Parliament has legislated to ensure that these drivers do not escape responsibility  through  technical  and  unmeritorious  defences.  The  Courts must give full effect to that clear Parliamentary indication.

The s 81 issue

[21]     Section 81 of the Act provides:

81  Provisions relating to mandatory disqualification

(1)  If any provision of this Act (other than section 63) requires a court to disqualify a person from holding or obtaining a driver licence or transport service licence for a period not less than the specified minimum period, the court  must  order  that  the  person  be  disqualified  accordingly  unless  for special reasons relating to the offence it thinks fit to order otherwise.

(2)  Nothing in any provision referred to in subsection (1) or in section 65 restricts any other duty or power of the court to disqualify a person from holding or obtaining a driver licence or transport service licence or to impose any other penalty.

(3)  This section is subject to section 94 (which relates to community-based sentences).

[22]     Understandably, the Courts have taken a circumspect approach to s 81.  The

“special  reason”  must  relate  to  the  facts  of  the  offence  and  arise  from  the

circumstances in which the offence was committed; not to the circumstances of the particular offender.

[23]     New Zealand authorities have tended to accept the proposition that a “special reason” is “a mitigating or extenuating circumstance, not amounting in law to a defence of a charge, yet directly connected with the commission of the offence, and one which the Court ought properly to take into consideration when imposing punishment”.[5]    Whether “special reasons” exist is a question of law.[6]    It has also been emphasised that the Court should guard against allowing individual cases to dictate a restrictive approach to the exercise of the s 81 jurisdiction.[7]

[5] See R v Crossan [1939] NI 106 at 122 and the cases collected in Becroft & Hall’s Transport Law at para LTA 81.4.

[6] See Reedy v Brown [1951] NZLR 1040 (SC) and Profitt v Police [1957] NZLR 468 (SC).

[7] See Bell v Ministry of Transport [1983] NZLR 229 (CA) at 232.

[24]     The onus of establishing “special reasons” lies on the offender, with the standard of proof being the balance of probabilities.[8]

[8] See Pugsly v Hunter [1973] 1 WLR 578 and Transport Ministry v Sowman [1978] 1 NZLR 218 (CA) at 223.

[25]     Generally, “special reasons” will arise from some form of emergency.   In such circumstances, it will be necessary for the Court to determine things such as the distance the vehicle was driven, the manner of the driving, the state of the vehicle, whether the driver intended to drive any further, the prevailing road and traffic considerations, the possibility of danger to other road users and the reason for the vehicle being driven.[9]   Nevertheless, such factors are not exhaustive.  Although it has been put differently in other cases, I consider that it is incumbent on an applicant, under s 81, to demonstrate that the circumstances were such that a disinterested and

sober bystander would have advised the offender to drive, notwithstanding the consumption of alcohol.

[9] Chatters v Burke [1986] 3 All ER 168 (DC) at 171-172, per Taylor J with whom Watkins LJ concurred.

[26]     Mr Patel, for Ms Donaldson, submitted that the need to act intuitively and quickly to respond to the alleged sexual assault is sufficient to bring s 81 into play. With  respect,  I disagree.    In  my view,  Judge  Everitt  was  right  to  say that  the evidence was insufficient to explain why Ms Donaldson did not do anything short of

driving her vehicle to alert others to what had occurred.  Other family members were in the home.  They were in a dwelling formerly occupied by their deceased parents and might be expected to know neighbours.  There is no evidence that anyone heard a call for help, or anything of that type.

[27]     I agree with Judge Everitt that the evidence does not reach the standard of establishing that a “special reason” for not imposing disqualification existed.  Based on the evidence before the Court, it could not be said that a disinterested and sober bystander, basing his or her view on the objective evidence available, would have advised Ms Donaldson to drive to escape from the alleged assailant.

The s 94 issue

[28]     Section  94  of  the  Act  takes  primacy  over  s 81.[10]      Section  94  allows  a sentencing Court to impose a community-based sentence in substitution for an order for disqualification.  Relevantly, s 94(1) provides:

[10] Section 81(3) of the Land Transport Act 1998.

94  Substitution of community-based sentences

(1) This section applies if—

(a)  The offender has previously been ordered on conviction for an offence to be disqualified from holding or obtaining a driver licence; and

(b) The court, having regard to—

(i) The circumstances of the case and of the offender; and

(ii)   The effectiveness or otherwise of a previous order of disqualification made in respect of the offender; and

(iii)  The likely effect on the offender of a further order of disqualification; and

(iv) The interests of the public,—

considers that it would be inappropriate to order that the offender be disqualified from holding or obtaining a driver licence; and

(c)  The court considers that it would be appropriate to sentence the offender to a community-based sentence in accordance with Part 2 of the Sentencing Act 2002

....

[29]     The s 94(1) criteria are wider than those under s 81.  Based on the evidence before the Court, the sentencing Judge ought to have had regard to the following factors:[11]

[11] See s 94(1)(a) Land Transport Act 1998.

a)       Ms  Donaldson  knew  that  she  would  be  drinking  alcohol  after undertaking   work   on   her   deceased   parents’   home   and   had (responsibly) arranged to stay there to avoid the need to drive.

b)Although the evidence of why Ms Donaldson drove is sparse, it is clear  that  her  plans  were  changed  as  a  result  of  the  event  she describes.   Ms Donaldson’s decision to drive was likely made intuitively rather than on any rational basis.

c)       The financial consequences to Ms Donaldson of being disqualified from holding or obtaining a driver licence could be severe.  It is more than possible that her employment could be terminated if the disqualification order were upheld.

[30]     Although Ms Donaldson has previously been convicted of driving with an excess breath alcohol level, it seems that the previous order for disqualification had been effective, up to the time at which the present offending occurred.   No other offence  was  committed.     There  is  a  report  before  the  Court  indicating  that

Ms Donaldson does not suffer from any alcohol related disorders.[12]

[12] See s 94(1)(b)(ii) of the Land Transport Act 1998.

[31]     The only countervailing consideration is the interests of the public, from a road safety perspective.   That is an important factor.   The question is whether, as Judge Everitt thought, that public interest factor outweighs other factors that weigh against imposition of a mandatory disqualification.

[32]     In my view, the appropriate test, in conducting that balancing exercise, is to ask  whether  the  community  is  likely  to  be  offended  by  the  imposition  of  a

community-based sentence rather than a period of disqualification, having regard to the individual circumstances of a particular case.  I do not consider offence of that type would be caused, on the facts of this case.

[33]     I am satisfied that this is one of those rare cases in which the s 94 discretion can properly be exercised.  I have no doubt that Ms Donaldson reacted to the alleged indecent assault intuitively and with a sense of panic.  It should not be held against her, for the purposes of the s 94 discretion, that her decision was irrational.  There was a need to escape an assailant and she chose to drive to do so, albeit that was not a rational choice in the circumstances.  With respect, I consider the sentencing Judge erred in regarding the road safety factor as determinative, given the other considerations that weighed in favour of Ms Donaldson’s application.

[34]     Having regard to

a)        the traumatic experience of the alleged indecent assault,

b)        the intuitive nature of the decision to drive following that event,

c)       the  apparent  effectiveness  of  the  prior  order  of  disqualification (evidenced  by  Ms  Donaldson’s  decision  to  stay  overnight  at  the former family home so that she did not have to drive) and

d)the likely financial effect on Ms Donaldson of a further order of disqualification,

I am satisfied this is an appropriate case to exercise the s 94(1) discretion.

The sentence

[35]   Judge Everitt imposed a sentence of 100 hours community work and disqualified Ms Donaldson from holding or obtaining a driver licence for a period of

12 months.   The disqualification was concurrent on both the breath/alcohol and careless use charges.

[36]     I am satisfied that it is appropriate to set aside the disqualification order.  I

consider that the period of community work should be increased from 100 hours to

300 hours to mark the offending and to take account adequately of the absence of a disqualification order.

Result

[37]     For the reasons given, the appeal is allowed.  I make the following orders:

a)        The  orders  for  disqualification  made  in  the  District  Court  are  set aside.

b)On the charge of driving with an excess breath alcohol concentration, Ms Donaldson is sentenced to 300 hours community work.

c)        On the careless use charge, Ms Donaldson is ordered to pay a fine of

$500.

[38]     I thank counsel for their assistance.

P R Heath J

Delivered at 11.00am on 10 June 2010