Gilbert v Police
[2014] NZHC 508
•17 March 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2014-404-000024 [2014] NZHC 508
BETWEEN MARTIN NICHOLAS GILBERT Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 17 March 2014
Appearances: M W Winterstein for Appellant
W N Fotherby and K J Barry for Respondent
Judgment: 17 March 2014
JUDGMENT OF COURTNEY J
This judgment was delivered by Justice Courtney on 19 March 2014 at 3.00 pm
pursuant to R 11.5 of the High Court Rules
Registrar / Deputy Registrar
Date………………………..
GILBERT v NZ POLICE [2014] NZHC 508 [17 March 2014]
Introduction
[1] Section 94 of the Land Transport Act 1998 provides that, despite any provision of the Act requiring a person convicted of an offence to be disqualified from holding or obtaining a driver’s licence, the Court may instead make an order imposing a community-based sentence. Martin Nicholas Gilbert appeals Judge Moses’ refusal to grant his application under s 94 following conviction on a charge of driving with excess breath alcohol (third and subsequent).
[2] The granting of an application under s 94 involves the exercise of a discretion. In an appeal against the exercise of a discretion it is for the appellant to show that the Judge made an error of law either by taking irrelevant matters into account, failing to take relevant matters into account, applying a wrong legal principle or otherwise making a decision that was plainly wrong.
[3] The grounds for Mr Gilbert’s appeal is that the Judge made errors of law in holding that an order under s 94 should not be made because Mr Gilbert could apply for a limited licence and in failing to take into account the fact that the Police were neutral as regards his application.
[4] In addition, Mr Gilbert sought to adduce further evidence for the purposes of the appeal, intended to demonstrate the existence of another relevant factor that should be taken into account. The Crown did not oppose the application and I granted leave to file the affidavit.
Sentencing in the District Court
[5] Mr Gilbert was stopped on Te Irirangi Drive in Manukau City on a Sunday morning in August 2013. He was found to have a breath alcohol level of 683 micrograms of alcohol per litre of breath. He pleaded guilty on 16 January 2014 in the District Court at Manukau.
[6] In sentencing, Judge Moses was clearly concerned about Mr Gilbert’s drink- driving history. The present offence was his seventh conviction for drink-driving, though some were historical: 1986 (excess blood alcohol level of 99), 1998 (excess breath alcohol level of 600), 1993 (excess blood alcohol level of 920), 1994 (excess breath alcohol level of 863 and 1010) and 2001 (excess breath alcohol level 1030).
Having regard to the age of these convictions, particularly the 12 year gap between the present offending and next most recent the Judge imposed a sentence of 250 hours community work.
[7] Judge Moses then turned to consider whether he should also disqualify Mr Gilbert or grant his application under s 94, substituting a community-based sentence for disqualification. The Judge declined the application and disqualified Mr Gilbert from holding or obtaining a driver licence for one year and one day.
[8] The prerequisites for s 94, discussed at length in R v Beeston are a previous disqualification, a conclusion that it would be inappropriate to order disqualification having regard to the four matters identified at s 94(1)(b) and a conclusion that it would be appropriate to sentence the offender to a community-based sentence.1 The relevant provisions of s 94 are:
(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’s licence; and
(b) The Court having regarding 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 …
(d) In determining the appropriate sentence to be imposed on the offender in respect of the offence, the Court must take into account the gravity of the offence and the fact that the
1 R v Beeston [2012] NZHC 1064.
offender would otherwise have been liable to disqualification from holding or obtaining a driver licence.
[9] In considering the s 94 application the Judge specifically identified Mr Gilbert’s personal circumstances. He is the sole income earner for a household that comprises his wife, seven dependent children and a dependent grandchild. He has been employed for many years by Samson Group. He works Mondays to Saturdays and occasionally Sundays as well as night shift work if necessary. He is required to be on call 24 hours a day. In his affidavit filed in support of the s 94 application Mr Gilbert described the nature of his work:
I am presently working under contract to Samsons Construction Services Limited (Samsons). I work in many different roles for the company and often provide supervision for many of the other sub-contractors working for Samsons. I have been contracted to Samsons on and off for the past 19 years.
I work Mondays to Saturdays between 5.30 am – 7 am start and a finish time of between 4 pm and 7.30 pm. I am occasionally required to work on Sunday and also night shift when the need arises. I am required to be on call
24 hours a day and to report on site if necessary …
I work wherever there is work available, this can sometimes be outside of
Auckland and sometimes outside of the country …
[10] Mr Gilbert also deposed that he was likely to lose his job if he could not drive for a year, an assertion supported by a letter from his employer which said that:
If Martin was to lose his driving licence our company would be severely affected in so much as we would need to close down these contracts and potentially the 6-8 staff under Martin redundant and Martin himself.
[11] The Judge clearly accepted that Mr Gilbert needed his driver’s licence to maintain his employmnet. However, he concluded that Mr Gilbert could apply for a limited licence to accommodate his employment requirements and that controlling when he was driving would be in the interests of the public:
[15] The affidavit at paragraph 28 refers to a significant impact the loss of licence for over 12 would have on your employment and the loss of your home whilst you served the period of disqualification. That of course is not entirely correct because, as I have indicated and noted, you are entitled after a period of one month to apply for a work licence. It seems to me, when I look at your previous list of convictions and the number of previous convictions that you have had for drink driving, that it is in the interests of the public that if you are entitled to drive that it be done so under a strict order from the Court as to the nature of the driving that you should be carrying out and the hours and circumstances. That can only be provided for
by a court order for a limited licence and it would not be possible if s 94 was applied and where there would be simply no control over your driving movements.
[16] … In my view the interests of the public in this case of you being disqualified and being required to apply for a limited licence in my view outweigh the interests that your counsel puts forward as being relevant.
This appeal
[12] The main issue on the appeal was the Judge’s approach to the question of a limited licence. Mr Fotherby submitted that the Judge had properly taken all the relevant factors into account and, having done so, it could not be said that his conclusion was wrong simply because it was not the only available conclusion. In particular Mr Fotherby said that the Judge was entitled to conclude that Mr Gilbert’s transport needs could be met through a limited licence or other forms of transport. In addition, he said that the Judge’s conclusion that the public interest in controlling when and where Mr Gilbert drove outweighed the effect of disqualification was open to him.
[13] It seems to me that the appeal turns on the Judge’s understanding of the limited licence provision. The Judge did not discuss this aspect but, rather, seemed to assume that Mr Gilbert’s difficulties could be overcome by a limited licence. Mr Fotherby submitted that the provisions of s 105 of the Land Transport Act, which allows for the granting of limited licences, did allow for sufficient flexibility to ensure that Mr Gilbert’s employment would not be put at risk. I am not satisfied that this is so.
[14] Whilst s 105 does provide a level of flexibility there are constraints that would be appear to create real difficulties for a person in Mr Gilbert’s position. In particular, s 105(3) states that:
In making an order under this section, the Court –
(a) must specify –
(i) the purpose for which the limited licence is issued; and
(ii) the particular vehicle or type of vehicle which may be driven; and
(iii) the days of the week and times at which that vehicle may be driven.
[15] The obvious problem for Mr Gilbert is that his employment is not amenable to identifying the days of the week and the times at which the vehicle may be driven as required by s 105(3)(a)(iii). Although Mr Gilbert does have regular hours, he is also on call and may be required to attend construction sites unexpectedly, including at night and including out of Auckland. These needs make a limited licence impracticable.
[16] Although the Judge referred to the fact that Mr Gilbert was sometimes on call, when he later dealt with the issue of a limited licence there was no consideration of how this fact would be addressed in the context of a limited licence application. It may be that the Judge had not appreciated that s 105 does not permit flexibility of the kind that a person likely to be called on unexpectedly at night would need. I find that, in this regard, the Judge did make an error in concluding that a limited licence would be feasible.
[17] Nor do I consider that the Judge was correct to identify as feasible alternatives to Mr Gilbert’s transport needs having his son drive or using a taxi or other transport. The use of a taxi is hardly something that Mr Gilbert’s employer could be expected to meet the cost of and it was evident from the budget that Mr Gilbert provided for the purposes of the s 94 application that this family does not have a lot of money to spare. Public transport very early in the morning or late at night, including out of Auckland is not feasible.
[18] The suggestion that Mr Gilbert’s teenage son drives him is similarly problematic. It is hardly to be expected that he will always be present when the need arises. Further, in the affidavit filed for the purposes of the appeal, Mr Gilbert has said that he has been relying heavily on his son but that that has not worked well because the son is “quite regularly unreliable”.
[19] I consider that, to the extent that the Judge’s refusal of the s 94 application was based on his assessment that a limited licence or other forms of transport would adequately cover Mr Gilbert’s work needs, it was an error.
[20] I therefore turn to consider whether the Judge’s decision should stand nonetheless. I am satisfied that it should not. It is true that Mr Gilbert has a bad history of driving under the influence of alcohol. However, the incident that gave rise
to this offending did not involve bad driving. It is 12 years between the current offending and the next most recent. Over that time Mr Gilbert has been a responsible employee, husband and father. Further, he has taken steps to address the problem of alcohol in his life, evidenced by the letter from an alcohol and drug counsellor with Waitemata District Health Board confirming Mr Gilbert’s attendance at counselling sessions, his insight into his offending and motivation to change.
[21] If Mr Gilbert is unable to drive for a year he is at risk of losing his employment which is a serious matter for a man with such a long employment record and a large dependent family. Whilst the offending is serious and the public interest is always at the forefront of a Judge’s mind, this outcome is not in the public interest either. In these circumstances I consider that the consequences for Mr Gilbert of not being able to drive to work outweigh the benefits to the public of his being disqualified.
[22] The appeal is therefore allowed. The order for disqualification is quashed and the matter is remitted to the District Court for the imposition of an appropriate
community-based sentence.
P Courtney J