Grant v Police

[2014] NZHC 148

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2013-443-000042 [2014] NZHC 148

BRIAN JOSEPH GRANT

v

NEW ZEALAND POLICE

Hearing:                   13 February 2014

Appearances:           J Mooney for Appellant

B Sweetman for Respondent

Judgment:                13 February 2014

ORAL JUDGMENT OF TOOGOOD

GRANT v NEW ZEALAND POLICE [2014] NZHC 148 [13 February 2014]

[1]      Brian Joseph Grant, the appellant, is aged 76.  He has health problems and it seems his income is derived solely from an army pension.  On 27 November 2013 he pleaded guilty to one charge of driving with excess breath alcohol and was disqualified from driving for a period of 18 months.  No other penalty was imposed, Judge Roberts referring to the appellant’s personal circumstances in that regard.  The Judge also took into account Mr Grant’s health problems and expressly considered that his only relevant previous conviction was for driving with excess blood alcohol in 1987, some 26 or 27 years ago.

[2]      Nevertheless,  the  Judge  treated  the  appellant  sternly,  both  in  terms  of imposing an 18-month period of disqualification and in giving the appellant an accompanying warning, in which the Judge said:

That is the penalty Mr Grant, but you are now on notice, if you come back again we will not be worrying about keeping you in the community.  It must not happen again.

[3]      It was within the discretion of the Judge to take account of the appellant’s limited financial means in imposing a slightly longer period of disqualification than might otherwise have been appropriate had a fine also been imposed, as is the usual course.  But I agree with Ms Mooney’s submission that, although the Judge referred to the length of time since the appellant’s previous drink-driving conviction, he should have, but did not, treat him in effect as a first offender.

[4]      This was not a particularly serious offence of its kind, the Police having had their attention drawn to the appellant because he had stopped his vehicle in the middle of the road; but there was no evidence of any driving incident that might have caused concern.   I am satisfied also that a 26 or 27 year period of unblemished driving should have effectively cleaned the slate for the appellant.

[5]      I am told from the Bar that a standard approach to a first offence of this kind, bearing in mind that the breath alcohol level was 717 micrograms of alcohol per litre of breath, would have been to impose a disqualification somewhere between six and nine months and a fine in the vicinity of $700.  There appears to be a convention to correlate the breath alcohol level with the amount of the fine.

[6]      Even allowing for a slight uplift on account of the previous conviction, a sentence of 18 months’ disqualification was clearly excessive, in my view, notwithstanding there was no additional financial penalty.  For the respondent, Ms Sweetman quite properly concedes that to be the position.   She submits, however, that in light of the previous conviction a disqualification of some nine to 12 months would have been more appropriate.

[7]      In  my view, there is a further consideration which justifies allowing the appeal  in  this  case.     Ms Mooney  has  pointed  out  that  the  disqualification significantly increases the appellant’s financial hardship, given the cost to him of alternative transport during the period of disqualification.  Ms Mooney now submits on behalf of the appellant that he is able to pay a fine on an instalment basis and would prefer to do that if there is to be a reduction in the period of disqualification.

[8]      Bearing in mind in my view that the appellant should have been treated as a first offender in these circumstances, and taking account of his health issues and his financial position, I consider the appeal should be allowed and the sentence imposed by the District Court Judge quashed.

[9]      I therefore allow the appeal and quash the sentence.  I substitute a sentence of six months’ disqualification from driving and a fine of $700 which shall be paid off by the appellant at a rate of not less than $20 a week.

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Toogood J