E v Police HC Auckland CRI-2009-404-235

[2009] NZHC 1344

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2009-404-235

E

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         28 September 2009

Appearances: P Stokes for Appellant

A Longdill for Respondent

Judgment:      28 September 2009

JUDGMENT OF ASHER J

Solicitors:

P Stokes, Public Defence Service, PO Box 90243, Auckland Mail Service Centre

A Longdill, Meredith Connell, Crown Solicitor, PO Box 2213, Auckland

E V NEW ZEALAND POLICE HC AK CRI-2009-404-235  28 September 2009

[1]      The appellant, E  , appeals  against a decision of the District Court of 20 July 2009.  That decision imposed, amongst other penalties, a period of disqualification from driving, and the Court refused to make an order under s 94 of the Land Transport Act 1998 (“the Act”), substituting a community based sentence in  lieu  of  that  disqualification.     The  parties  in  this  appeal  accept  that  the circumstances of the case meant that s 94 of the Act could be applied.

[2]      The two grounds of appeal put forward by the appellant were that the District

Court Judge erred in fact and law by:

a)        placing too much emphasis on the appellant’s previous convictions;

and

b)failing  to  give  proper  consideration  to  the  relevant  factors  under s 94(1)(b) of the Act.

The facts

[3]      Mr E   is 53 years old.   He has a history of driving offending, which includes four driving with excess blood alcohol convictions in 1980, 1982, 1984 and

1995.  It is this history which qualifies him under s 94(1)(a) to apply for a substituted sentence.

[4]      Mr E   was stopped at 11:28 pm on 2 May 2009 while driving his motor vehicle.   He showed signs of recent alcohol consumption, and when a breath test procedure  was  carried  out  his  breath  was  found  to  contain  593 micrograms  of alcohol per litre of breath.   In explanation Mr E   stated that he had consumed eight bottles of Steinlager and was going to a shop to buy some cigarettes.  It was stated in the summary of facts that Mr E   is unemployed.  However, it appears that he is employed part-time as a caregiver for a company, Focus 2000 Limited, which enables him to look after his wife, who has suffered a stroke and is in need of care.

The decision

[5]      The Judge noted Mr E  ’s history and the four drink driving convictions, while observing that the last of those was in 1995.   He observed his lack of convictions since then.  In relation to the facts he amplified the summary, observing that Mr E   had gone to get some cigarettes from a nearby dairy and had found that it was closed.   He had then got into his car to get cigarettes from a potential source some distance further away.

[6]      The Judge noted Mr E  ’s church work and his employment as a caregiver for his wife.  He observed that public transport should be sufficient to enable his wife to keep medical appointments.  He considered that Mr E   had an ongoing alcohol problem and observed that he had to weigh against personal considerations relating to Mr E  , the need for the community to be protected from persons driving while they have alcohol problems.

[7]      Having refused the s 94 application the Judge disqualified Mr E   from driving for one year and one day, and sentenced him to 225 hours of community service.

Section 94

[8]      The purpose and ambit of s 94 has been considered in a number of decisions, such as Ministry of Transport v Ure HC WN AP79/91 9 July 1991 Savage J; and Peake v Ministry of Transport HC DUN AP86/91 17 September 1991, Robertson J. and Yu v NZ Police HC AK CRI-2006-404-000273 10 November 2006, Asher J. The position was summarised in Becroft and Hall’s Transport Law at LTA94.2:

While the rationale of the section has to be gleaned by inference, its primary focus would appear to be to avoid the cumulative effect of adding periods of disqualification each time an offence is committed, and to get persons off the treadmill of reoffending.  The section is a recognition, first, of the fact that it is  of  little  benefit  to  the  community  or  the  offender  for  that  person  to continue to be disqualified for what young people (as the bulk of those disqualified inevitably are) recognise as impossibly long periods, with the consequence of breach upon breach, conviction upon conviction, and disqualification upon disqualification and, secondly, that in appropriate cases the alternative of a community-based sentence is more likely to be complied

with  by  the  offender  and  is  therefore  likely  to  be  a  more  effective punishment.

A purpose may also be to ameliorate circumstances where a limited licence may not be  available  to  a  multiple  offender,  and  a  recognition  that  this  may  impose  a particular hardship.

[9]      The four criteria set out in s 94(1)(b) to be considered are as follows:

a)        the circumstances of the case and of the offender;

b)the effectiveness or otherwise of a previous order of disqualification made in respect of the offender;

c)        the likely effect on the offender of a further order of disqualification;

and

d)       the interests of the public.

[10]     The  discretion  is  not  limited  in  its  application  to  offenders  who  fail repeatedly to honour their obligations under disqualification orders and are therefore hopeless cases.  It can be applied in less serious cases where persons are facing their second  offence  and  are  liable  to  disqualification:  Jukes  v  Police  HC  CHCH AP228/94 5 October 1994, Tipping J.

Submission that the Judge’s decision was in error

[11]     The Judge placed emphasis on Mr E  ’s driving past.   He noted that he had not learned not to mix alcohol consumption with driving and that he was a “persistent drink driver”.  He noted that he had “simply … not learned”, and that he “still has an  alcohol  problem  that  needs addressing”.    Ms Stokes  for  Mr E   criticised these observations as an unwarranted assumption that Mr E   was a persistent repeat offender, whereas he had not offended for approximately 14 years.

[12]     It could be said that the Judge’s statements in this respect were somewhat harsh on Mr E  .  However, the Judge did specifically note that his last conviction

was in 1995.   He could have added that there had been a lengthy gap of approximately 11 years between that 1995 offence and the earlier offence in 1984, so that there had already been an instance of Mr E   regressing after a lengthy period of non-offending.   It having happened a second time, the Judge could be seen as having some basis for considering that he had not learned, and continued to have an alcohol problem.

[13]     I am not prepared, therefore, to conclude that the sentencing Judge made an error.  However, given the emphasis on this point and the broader criticisms of his reasoning I will turn to Mr E  ’s position and consider the overall merits of Mr E  ’s submissions.

Consideration of the merits of the application

[14]     In terms of the circumstances of the case and of the  offender  it  can  be observed that Mr E   had not, when he was apprehended, committed any driving error.   I have already observed that there had been a lengthy period between this offending and his previous offending.  However, there was no real excuse for what he did.  In that respect the decision can be distinguished from another decision relied on by Ms Stokes in her submissions: Fuamai v Police HC AK CRI-2008-404-249

13 October 2008 Heath J, where the offender had driven because his daughter had disappeared and he was very concerned and was trying to find her.  No such excuse exists here.

[15]     In terms of the effectiveness of previous orders of disqualification, I have already observed that it could be said that there is a pattern of Mr E   not driving while under the influence of alcohol for a lengthy period, but then ultimately transgressing again.   Nevertheless, there is no reason to believe that he is not a responsible citizen, and I accept Ms Stokes’ submission that he responded honestly to the police when questioned about his alcohol consumption.

[16]     The  essence  of  Ms Stokes’  submission  on  the  overall  merits  of  the application   of   s 94   was   not   so   much   the   likely   effect   on   Mr E     of disqualification, but rather the interests of the public.  In particular, the interests of

his wife and of his church.  She submitted that he needed his licence to help his wife get to the doctor.   Moreover, he is closely involved in working with his church, which has filed statements in support of his submissions.  He works for his church centre, which is a voluntary community organisation.  He is often asked to drive at short notice, transporting people and food for the general help of the church community.

[17]     It is hard to see that any particular hardship will be imposed on Mr E  ’s wife if he cannot drive.   As the sentencing Judge observed, public transport is available.  It seems that she has to see a doctor approximately every two weeks, and there appears to be no reason why that cannot be done by bus.   It may be less convenient, but it is hardly a matter that in itself would warrant the application of s 94.

[18]     In relation to the church, it may well be that some of the useful jobs that Mr E   does, he will no longer be able to do for the period of his disqualification. However, this is not a situation where any discernible and acute hardship to a third party has been shown.   It is not a situation, such as in Mallon v Police HC INV AP76/95  24 April 1996,  Tipping J,  where  an  innocent  employer  would  have  a significant burden placed on it if there was a period of disqualification.   There is nothing to show that church activities that would otherwise be carried out will not be carried out because of Mr E  ’s disqualification.

The balancing exercise

[19]     The exercise that must be carried out under s 94(1)(b) requires the Court to weigh  the  circumstances  of  the  offender,  and  the  particular  advantages  to  the offender and others of a community-based sentence, against the legislative intent that periods of disqualification be imposed for serious driving offences, and that the public be protected from those who drive under the influence of alcohol.  It must be borne in mind that imposing a period of disqualification has a significant deterrent function.

[20]     I have no doubt that there is going to be inconvenience to third parties as a consequence of Mr E  ’s disqualification.  I also accept there are cases where the circumstances of the case and the offender are far worse than those that apply to Mr E  .   However, those circumstances are not so persuasive in this case as to outweigh  the public interest  in  road  safety,  and  the  public  interest  in  deterring offences  of  this  type  by  imposing  periods  of  disqualification  on  those  who transgress.  The application of s 94 is an exception to the general application of the penalty of disqualification, and it should be only used in a clear case.

[21]     The general approach of the sentencing Judge embraced these considerations. There was no error by him in reaching his decision, which was entirely open to him on the merits of the application.  I conclude that the grounds put forward in support of the appeal have not been established.

Result

[22]     The appeal is dismissed.

…………………………… Asher J