Gibson v Police

[2021] NZHC 781

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2021-404-45

[2021] NZHC 781

BETWEEN

GEOFFREY MICHAEL GIBSON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	12 April 2021
Counsel:	C P D Frans for appellant M D East for respondent
Judgment:	12 April 2021

ORAL JUDGMENT OF TOOGOOD J

Solicitors/Counsel: Chris Frans, Auckland

Crown Solicitor, Auckland

GIBSON v POLICE [2021] NZHC 781 [12 April 2021]

[1]    The appellant, Geoffrey Gibson, pleaded guilty to careless use of a motor vehicle,1 and driving while under the influence of a drug so as to be incapable of having proper control of a motor vehicle.2 On 20 January 2021, he was convicted and sentenced by Judge Bouchier to a fine of $500 and courts costs of $130 on each charge. He was disqualified from holding or obtaining a driver’s licence for a period of 20 months beginning 20 January 2021.3

[2]    Mr Gibson appeals his sentence on the basis that the 20-month disqualification is manifestly excessive.

Factual background

[3]Mr Gibson is 52 years old and has no relevant prior convictions. At about

10.13 am on 29 July 2020, he was driving his car on Rosedale Road, North Shore. Witnesses reported that the vehicle was travelling on the wrong side of the road and that its right front wheel was driving on its rim.

[4]    The vehicle crashed over the top of a raised traffic island before the East Coast Road intersection and then returned to the correct side of the road, turning right on East Coast Road.

[5]    While on East Coast Road, Mr Gibson’s vehicle was observed swerving in its lane before coming to a stop in a right-hand turning lane controlled by lights. When the lights changed, Mr Gibson drove straight ahead, cutting off a number of motorists and driving over several fixed marker posts.

[6]    Mr Gibson then turned into Sunset Road, a highly built-up residential road that is the main route for traffic travelling from Glenfield to Mairangi Bay. He was reported as travelling on the wrong side of the road at least half the time, especially on blind corners, narrowly missing oncoming traffic.

1      Land Transport Act 1998, s 37. Maximum penalty a fine not exceeding $3,000.

2      Land Transport Act 1998, s 58(1)(a). Maximum penalty three months’ imprisonment or a fine not exceeding $4,500.

3      Police v Gibson [2021] NZDC 1653.

[7]    As he approached the intersection with Glenfield Road, CCTV cameras show his car on the wrong side of the road and braking heavily for the red traffic signal. He turned into Albany Highway, stopping for a short time. After making a U-turn back onto Sunset Road, he drove on both sides of the road at speeds of 90-100 kilometres per hour in a 50 kilometre per hour zone. His front tyre disintegrated and the vehicle came to a halt.

[8]    Police found Mr Gibson in his car shortly afterward. He showed signs of recent drug and/or alcohol consumption and admitted to taking 26 clonazepam tablets. Analysis of his blood detected the presence of the class B controlled drug MDMA (methylenedioxymethamphetamine) and the class C controlled drugs clonazepam and lorazepam.

District Court sentencing

[9]    In sentencing Mr Gibson, Judge Bouchier took into account information provided to the Court about his personal circumstances.   She acknowledged that   Mr Gibson is on a benefit and accepted counsel’s submission that he would be unable to undertake supervision given his personal circumstances. She also stated that community work would be difficult, but that community detention was “too far up the sentencing hierarchy” for an offender with one unrelated prior conviction. The Judge gave Mr Gibson credit for his early guilty plea, remorse and personal circumstances. She emphasised, however, that his “extraordinarily bad driving” warranted a sentence that met the purposes of denunciation and deterrence. Taking into account these factors, as well as Mr Gibson’s financial circumstances, she imposed fines totalling

$1,000 and court costs totalling $260 and disqualified him from holding or obtaining a driver’s licence for a period of 20 months.

Approach on appeal

[10]   An appeal against sentence is brought pursuant to s 244(1) of the Criminal Procedure Act 2011. This Court must allow the appeal if it is satisfied that, for any reason, there is an error in the sentence imposed on conviction and that a different

sentence should be imposed.4 The appellant must point to the error and the Court will consider whether it is material and whether it has resulted in a manifestly excessive sentence. In assessing whether a sentence is manifestly excessive, the focus is on whether the sentence imposed is within range, rather than the process by which it was reached.5

Submissions

[11]   Mr Frans for Mr Gibson refers to the discretionary factors outlined in Graham v Ministry of Transport.6 He notes there was no injury or damage in this case, other than to Mr Gibson’s own vehicle, and emphasises that Mr Gibson has no previous traffic convictions. He refers to Biggs v Police, in which the appeal Court substituted a 15-month disqualification for a disqualification for 10 months,7 and Blanco v Police, where this Court substituted an indefinite disqualification for a period of eight months’ disqualification.8 Mr Frans argues that the lengthy disqualification will make life more difficult for Mr Gibson, who is receiving jobseeker support. It is submitted that Judge Bouchier did not place enough weight on Mr Gibson’s mental health issues evidenced by a recent report from He Puna Wairoa Mental Health Unit and an affidavit from Mr Gibson. Mr Frans submits that a 20-month disqualification is beyond the general level of penalties adopted in the District Court and that nine months would have been a more appropriate period.

[12]   The respondent accepts that the Judge did not give clear reasons for the disqualification order by reference to the facts or other cases, and counsel suggests it would be appropriate for this Court to determine the period of disqualification afresh. Citing various authorities, Mr East submits that a disqualification period of six months’ to 15 months’ disqualification is within range for first-time offenders charged with driving under the influence.9 It is submitted that Mr Gibson’s offending was at

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

5      Tutakangahau v R [2014] NZCA 279 at [30]-[36].

6      Graham v Ministry of Transport [1990] 3 NZLR 249 (HC).

7      Biggs v Police HC Tauranga CRI-2009-470-30, 27 October 2009.

8      Blanco v Police HC Auckland CRI-2008-404-72, 6 May 2008.

9      McEachen v Police [1995] 2 NZLR 251 (HC); Wilkins v Police HC Christchurch CRI-2008-409- 008; Schruba  v Police  HC  Dunedin CRI-2008-412-30, 25  September 2008; Singh v Police  HC Auckland CRI-2010-404-340, 22 November 2010; Lee v Police HC Christchurch CRI-2008- 409-217, 12 February 2009.

the serious end of the spectrum, warranting 15 months’ disqualification. Counsel further submits that a period of six months’ disqualification should be imposed concurrently on the charge of careless use of a vehicle.10 Accordingly, the respondent argues that it is open to this Court to quash the disqualification period of 20 months and replace it with a period of 15 months on the more serious of the charges.

Discussion

[13]   Where a defendant is convicted of careless driving under s 37 of the Land Transport Act 1998, disqualification is at the Court’s discretion.11 Where the conviction is for a first or second offence of driving under the influence pursuant to  s 58(1)(a), disqualification for a period of at least six months is mandatory.12 This is unless the Court exercises its discretion to order otherwise due to special reasons relating to the offence.13

[14]   The sole issue here, therefore, is whether an uplift of 14 months’ disqualification from the mandatory period was manifestly excessive.

[15]   The penalties for a first offender charged with driving with excess breath alcohol under s 58(1)(b) are identical to those under s 58(1)(a). In McEachen v Police, this Court reviewed 527 sentencing decisions of first drink drive offenders and found the disqualification range tended to be between six and 18 months.14 In Schruba v Police, six months’ disqualification was imposed on a first offender whose breath alcohol was twice the legal limit for an adult.15 The appellant had overtaken a vehicle on a highway, narrowly avoiding a head-on collision with an oncoming vehicle. He veered needlessly to the wrong side of the road before losing control of the vehicle and skidding off the road into a steep bank. In Singh v Police, the appellant was observed weaving over the road and driving his vehicle onto a raised island at an intersection, before driving home. He was disqualified for 12 months for driving with excess breath alcohol.16

10     See Clapham v New Zealand Police HC Wellington CRI-2011-485-5, 21 April 2011.

11     Land Transport Act 1998, s 37(2)(b).

12     Section 58(2)(b).

13     Section 81(1).

14     McEachen v Police, above n 9, at 253.

15     Schruba v Police, above n 9, at [21].

16     Singh v Police, above n 9, at [17].

[16]   Mr East refers particularly to the judgment of this Court in Wilkins v Police in which there was an appeal against a disqualification period of 15 months for excess blood alcohol and careless driving.17 A fine of $1,000 had been imposed and reparation of $5,363.76 was also ordered. The appellant was a 23 year old hairdresser with no prior convictions. She had been driving with what the Judge said was slightly more than two and a half times the legal limit of alcohol and crashed into a parked car. There is no other description in the judgment on appeal of the manner of driving, but I infer that, had the driving been of a more prolonged nature and of the degree of danger and risk involved in this case, the Judge would have said so. So it appears that, with a high blood alcohol content, the appellant in that case simply drove into a parked car. The disqualification period of 15 months was upheld by the High Court, Chisholm J noting that 15 months would have been at the highest end of the range. The Judge said, however, that he was unable to hold that the District Court Judge had erred in the exercise of his discretion; he was entitled to take into account the very high blood alcohol content and that there was an accident.

[17]   While there was no  injury  or  damage  caused  in  this  case,  and  this  is  Mr Gibson’s first traffic conviction, his driving was appropriately described by Judge Bouchier as “extraordinarily bad”. He travelled with excessive speed, breaking the speed limit on Sunset Road. He drove on the wrong side of the road for sustained periods, narrowly avoiding oncoming traffic. He had also driven in this manner in a residential area during the day when there were likely to be a number of motorists present, as well as cyclists and potentially pedestrians. Those factors go to the seriousness of the offending and reflect Mr Gibson’s culpability. The driving persisted despite several collisions with road markers.

[18]   It is not clear just how impaired Mr Gibson was by the consumption of the drugs and there is no measure available, but it is reasonable to infer from the manner of the driving, and from Mr Gibson’s assertion that he was unaware of what he was doing, that he was very seriously affected.

17     Wilkins v Police HC Christchurch CRI-2008-409-008, 21 February 2008.

[19]   The appalling driving in this case deserved a punitive response and the Judge was entitled to regard the fine imposed by reference to Mr Gibson’s financial means as inadequate for that purpose. Taking into account the disqualification periods in other cases and the need for consistency, and bearing in mind particularly the views of this Court expressed in Wilkins, I consider that 20 months’ disqualification was manifestly excessive.

[20]   Mr Frans submits that a lengthy period of disqualification would make life difficult for Mr Gibson because he is on a work seeker’s benefit, but I observe that it would be open to him to apply for a limited licence if the circumstances justify it.18

Result

[21]   Bearing in mind the seriousness of the offending in terms of the driving, and taking account of other cases, I allow the appeal in part. On the charge of driving under the influence, the 20-month disqualification is quashed and replaced with     14 months’ disqualification. The other disqualification on the careless use remains in place.

Toogood J

18     Land Transport Act 1998, ss 103-105.