Goodman v Police

[2014] NZHC 56

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2013-419-52 [2014] NZHC 56

BETWEEN  NICHOLAS ROSS GOODMAN Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:                   4 February 2014

Appearances:           D Hall for the appellant

S N Cameron for the respondent

Judgment:                4 February 2014

ORAL JUDGMENT OF WOODHOUSE J

Solicitors:

Mr D Hall, Davys Burton, Solicitors, Rotorua

Ms S N Cameron, Almao Douch, Office of the Crown Solicitor, Hamilton

GOODMAN v POLICE [2014] NZHC 56 [4 February 2014]

[1]      Mr Goodman appeals against disqualification of 15 months from holding or obtaining a driver licence for driving with  excess  breath  alcohol.    He  had  878 micrograms  of  alcohol  per litre  of breath  compared  with  the  maximum  of 400 micrograms.

[2]      There is an application for leave to appeal out of time.  This is not opposed and it is granted.

[3]      Mr Goodman has two previous relevant convictions.  On 26 May 2007, when he was aged 19, he was convicted under s 57 of the Land Transport Act of being a person aged under 20 years who drove with excess breath alcohol of 49 micrograms. That compares with the maximum of 30 micrograms.   He was disqualified for 3 months.  The second conviction related to an offence on 24 September 2011 under s 56(2) of the Act.  This was an offence of driving with excess blood alcohol of 124 milligrams compared with the maximum of 80.  Mr Goodman was disqualified for 6 months and fined $800.

[4]      The sentence now under appeal was imposed on 7 February 2013 for the offence  which  was  committed  on  14  October  2012.1     The  disqualification commenced on the date of sentence and there is therefore approximately 3 months to run.

[5]      The Judge stated at the beginning of his sentencing comments that this was Mr Goodman’s third conviction for driving with excess breath alcohol.   It may be inferred from this that the Judge proceeded on the basis that this was a third conviction to which s 56(4) of the Act applies.  Under that subsection the minimum disqualification is more than 1 year and the maximum penalty is imprisonment for 2 years or a fine of $6,000.  The Judge noted that the breath alcohol level was high and that the last conviction had been only around 18 months before.

[6]      The overall sentence was as follows:

(a)       A fine of $1,500 with costs of $132.89.

(b)      Disqualification for 15 months commencing on 7 February 2013.

(c)       A direction for a zero alcohol licence in the following terms:

Any  licence  that  you  obtain  after  that  disqualification  is spent [being the disqualification for 15 months] will be a zero alcohol licence for a minimum period of 2 years.

(d)      An order for confiscation of the appellant’s Toyota Hilux vehicle.  It

has since been sold.

Submissions

[7]      At the heart of Mr Hall’s submissions for Mr Goodman was a submission that this was not a third conviction to which s 56(4) applies.   Section 56(4) applies in respect of convictions against any of ss 51(1), 56(2), 57A(1), 58(1), 60(1), 61(1) or

61(2). The first conviction, as recorded above, was against s 57.

[8]      Mr  Hall  referred  to  the  Court  of Appeal’s  decision  in  R  v  Stone.2      He acknowledged the Court’s conclusion that there is no real correlation between the number of convictions and the disqualification period.   However, and given the respondent’s reliance on the decision, Mr Hall noted from a graph in Stone that the median disqualification for an adult conviction was, in Mr Hall’s submission, 12 months with a range of 10 to 14 months.  I note at this point that, although the graph is not presented by the Court of Appeal as being in any way definitive, the longest period of disqualification for a second conviction is 18 months.  Mr Hall submitted that the 15 months imposed here appears from the graph in Stone to be the median for a fifth adult conviction.

[9]      Mr Hall submitted that, looking at the penalties imposed overall, the 15 months disqualification can properly be said to be manifestly excessive.  The other factors, Mr Hall submitted, that need to be taken into account are an estimated loss of around $10,000 on the sale at auction by Police of the confiscated car and the fine imposed, which is relatively high.  Mr Hall also noted that there was no suggestion

of  aggravating  factors  in  respect  of  the  offence  beyond  the  alcohol  level.    In particular there was no suggestion of bad driving.

[10]     For the respondent, Ms Cameron accepted that it did appear that the Judge had proceeded on the basis that this was a third conviction to which s 56(4) applies. And Ms Cameron’s written submissions expressly proceeded on that basis, which tends  to  reinforce  the  reasonable  inference  the  Judge  was  effectively  applying s 56(4), although he did not expressly refer to it (which also is understandable).

[11]     Notwithstanding the possibility of this error, Ms Cameron submitted that 15 months disqualification cannot be regarded as manifestly excessive given this appellant’s  history in  respect  of  excess  alcohol  driving  offences.    Ms  Cameron emphasised the observation by the Court of Appeal in Stone that there is no real correlation between the number of convictions for excess alcohol driving and the period of disqualification.  The reasons for this are outlined in the Court of Appeal’s decision.   Ms Cameron also submitted that the fine was “only” $1,500 compared with the maximum of $6,000, on the assumption that s 56(4) applied.  As already indicated, Ms Cameron acknowledged in her oral submissions that that maximum for a fine in fact does not apply.

Discussion

[12]     The graph in Stone cannot in my judgment be used to seek to establish that the period of disqualification is manifestly excessive.   This is what the Court of Appeal itself says in a slightly different way.  And the Court was not presenting the graph  as  a  comprehensive,  scientifically  based,  survey.    What  the  Court  did emphasise is a need for all the relevant circumstances to be weighed in each case.

[13]   I agree with Mr Hall’s submission, and, as I understand it, effectively acknowledged by Ms Cameron, that the Judge did treat this conviction as coming under s 56(4).   It therefore appears that the Judge proceeded on the basis that the minimum period of disqualification was more than 12 months and that a fine of up to

$6,000 could be imposed.  These matters of themselves do not mean that the appeal should  be  allowed  but,  as  Ms  Cameron  also  acknowledged,  it  does  appear appropriate for this Court effectively to review the matter afresh.

[14]     The statutory minimum disqualification in this case was 6 months.   The disqualification actually imposed of 15 months is therefore two-and-a-half times above the statutory minimum.   That is not determinative of the outcome of the appeal, but it is a significant increase.

[15]     The  maximum  fine  that  could  be  imposed  in  this  case  was  $4,500,  not

$6,000.  In consequence, the fine actually imposed is one-third of the maximum and not one-quarter.

[16]     I accept Mr Hall’s submission that the confiscation of the car with some not insignificant loss arising on an effectively forced sale is another factor that needs to be taken into account.

[17]     There is a further consideration that I raised with counsel; that is to say, it was not noted in the submissions by counsel.  I have recorded the Judge’s direction in relation to a zero alcohol licence with that to apply for a period of 2 years. Assuming the record is accurate there was with respect an error by the Judge in this regard.  The relevant provision is s65B.  That section applies to this case in terms of s 65B(1).  Subsection (2) then applies:

If this section applies, the court must make an order authorising the person to apply for a zero alcohol licence that has effect for a period of 3 years from the issue of the licence.

In consequence, both counsel accepted that the zero alcohol licence must apply for the 3 year period, not the 2 year period referred to by the Judge.

[18]     In terms of an overall assessment of an appropriate period of disqualification it is also relevant to have regard to the fact that there were no aggravating factors of this  offence  beyond  the  alcohol  level.    This  is  a  factor  which  can  be  said  to distinguish this case from no doubt numbers of the cases referred to in the Stone chart resulting in lengthy periods of disqualification.

[19]     As  the  Judge  observed,  it  is  an  aggravating  factor  that  the  last  offence occurred not long before the current offence.   It was, in fact, just over 12 months before the present offence, not around 18 months as the Judge indicated.  However,

in my judgment this does not materially counterbalance the other matters that I have referred to.  In particular it does not counterbalance the fact that the starting point for a mandatory disqualification is half of the starting point that it is assumed the Judge began with – 6 months rather than 12 months.

[20]     Weighing  all  these  factors  I  am  satisfied  that  the  disqualification  of  15 months in the particular circumstances of this case was manifestly excessive.  I am further satisfied that the appropriate period of disqualification should be between 9 to 12 months.  I do note that, although the graph in Stone records a fairly wide range of periods of disqualification related to the different numbers of previous convictions

– ranging from two previous convictions to 10 previous convictions – there is no apparent variation in respect of three previous convictions.   In that regard there appears to be a fairly firm level of 12 months disqualification; that is to say, 12 months is recorded in the graph, but as counsel acknowledged in discussions with me that is likely to be the reasonably common period of disqualification of 1 year and 1 day to meet the statutory minimum.

[21]     Having regard to the various matters I have referred to, and including the fact that this appeal will result in the zero alcohol licence being fixed at 3 years, I am satisfied in the somewhat unusual circumstances of this case that the  maximum period of disqualification should be 9 months commencing from the date of sentence in the District Court.

[22]     In  concluding that  the appropriate period of disqualification should be 9 months I am conscious of the fact that it is now almost exactly 12 months since the disqualification period of 15 months was imposed.   If there were no other considerations I would have substituted a disqualification of 12 months rather than 9. However, a disqualification period of 9 months will have practical consequences for this particular appellant for reasons outlined by Mr Hall and which I need not go into.

Result

[23]     The disqualification from holding or obtaining a driver licence for 15 months is quashed and a disqualification of 9 months, commencing on 7 February 2013 is substituted.

[24]     The Judge’s direction in relation to a zero alcohol licence is quashed and in substitution for that there is an order under s 65B(2) of the Land Transport Act 1998 authorising the appellant to apply for a zero alcohol licence that has effect for a period of 3 years from the issue of the licence with that application to be made in

accordance with the other provisions of s 65B.

Woodhouse J