H v Police HC Ak CRI 2009-404-307

[2010] NZHC 31

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2009-404-0307

BETWEEN  H

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         8 February 2010

Counsel:         J M Price for Appellant

K Wendt for Respondent

Judgment:      12 February 2010

JUDGMENT OF HEATH J

This judgment was delivered by me on 12 February 2010 at 2.00pm pursuant to Rule 11.5 of the High

Court Rules

Registrar/Deputy Registrar

Solicitors:
Crown Solicitor, PO Box 2213, Auckland
Counsel:

J M Price, PO Box 300-885, Albany, Auckland

H V NEW ZEALAND POLICE HC AK CRI 2009-404-0307  12 February 2010

Introduction

[1]      Mr H   appeals against a period of nine months’ disqualification imposed on a charge of driving with an excess blood alcohol concentration.

[2]      Mr H   was 17 years old when, on 19 July 2009 at 11.40pm, he was driving a vehicle on Albany Highway.  He was stopped by an enforcement officer, who observed the car “going sideways around a corner”.  Mr H   smelt strongly of alcohol and admitted to having recently consumed alcohol.   After proper procedures had been followed, Mr H   was found to have a blood alcohol level of 91mgs of alcohol per 100mls of blood.

[3]      Section 57(2) of the  Land Transport Act 1998 (the Act) provides that a person younger than 20 years (a youth) commits an offence if his or her blood alcohol concentration exceeds 30mgs of alcohol per 100mls of blood (the youth limit).   The maximum penalty for such an offence is a term of imprisonment not exceeding three months or a fine not exceeding $2250.    The minimum disqualification period is three months: see s 57(3).

[4]      In contrast, if a person were aged 20 years or more (an adult) at the time apprehended for driving with an excess blood alcohol concentration, the legal limit is

80mgs of alcohol per 100mls of blood (the adult limit).  The maximum penalty for that offence is imprisonment for a term not exceeding three months or a fine not exceeding $4500.  The minimum mandatory disqualification is six months: s 56(2) and (3) of the Act.  In addition, a conviction for driving in excess of the adult limit (unlike one for exceeding the youth limit) counts for the purpose of determining whether a person has committed a third or subsequent offence, bringing into play the higher penalties set out in s 56(4) of the Act.

[5]      Because Mr H   exceeded the adult limit, he was charged under s 56(2). His  blood  alcohol  reading  was  11mgs  of  alcohol  in  excess  of  the  adult  limit. However, when compared with the youth limit of 30mgs, his reading was more than three times the legal limit.

[6]      Having entered an early plea of guilty, Mr H   came up for sentence before Judge Everitt in the District Court at North Shore on 24 August 2009.  Judge Everitt’s remarks were short:

[1]       Mr H   it is about time you started to think and use your brain. You were grossly in excess of your limit and you were badly affected by alcohol.  Your car was going sideways round a corner, after you had been out drinking at a party.  You are 17 and you should have been at home, not out drinking at parties and driving motor vehicles.

[2]       You are convicted and fined $400, court costs $130 and medical analysis fees $173.

[3]       You  are  disqualified from holding or obtaining a motor  driver’s licence for a period of nine months starting today, right now, to call you to account for what was very dangerous behaviour.

[7]      Mr H   does not challenge the fine imposed, nor the Court fees and medical  expenses.    Rather,  Ms  Price,  on  his  behalf,  submits  that  the period  of disqualification of nine months was manifestly excessive.

The competing submissions

[8]      Ms Price, for Mr H  , submitted that the sentence imposed was in excess of the six months disqualification customarily imposed by resident Judges sitting in the District Court at North Shore, particularly after a plea of guilty.  She pointed out that Judge Everitt was not “a local” Judge and submitted that his approach was too harsh.

[9]      A  cornerstone  of Ms  Price’s  submission  was  that  Mr  H    should  be treated as only 11mgs over the legal limit because he had been charged as an adult. While she accepted that his age could be taken into account, she did not accept the proposition that Mr H   should be sentenced on the basis that he was three times over the youth limit.

[10]     Ms Wendt, for the Crown, accepted the proposition that Mr H   should be treated as an adult.  Nevertheless, she contended that based on comparable cases involving adults, the disqualification of nine months was within the range available to the Judge.  She referred to both Ministry of Transport v Graham [1990] 3 NZLR

249 (HC) and McEachen v Police [1995] 2 NZLR 251 (HC) to support those submissions.

Analysis

[11]     The youth limit was introduced as an amendment to the Transport Act 1962, coming into force on 1 April 1993.  The amendment was preceded by policy papers from the Land Transport Division of the Ministry of Transport.   Reasons for the amendment were identified in the Policy and Programme Development Branch of the Land Transport Division’s paper entitled Discussion Document for the Communications and Road Safety Select Committee on Issues Arising from Submissions on the Transport Safety Bill: Drink Driving Issues and Random Breath Testing (1992).

[12]     The Discussion Document reveals a concern about an increase in the risk of accident involvement, in a substantial proportion of young drivers at lower concentrations of alcohol than is the case with older and more experienced drivers. That conclusion was drawn from the International Drivers’ Behaviour Research Association Symposium on Young Drivers Impaired by Alcohol and Other Drugs (1986).

[13]     When   the   offence   was   committed,   Mr   H     was   a   young   and inexperienced driver.  He cannot have held a driver licence for much more than two years, even assuming (in his favour) that he obtained his licence when aged 15 years. For an inexperienced young man of 17 years to be driving late at night, in a potentially dangerous manner while badly affected by alcohol is disturbing.   The amount of alcohol consumed must be judged against likely impact of the substance on a young and inexperienced driver and the consequential safety risks to other road users.  The research that led to the 1993 Amendment suggests that youths are at risk of being adversely affected by alcohol at much lower levels than adults.   For that reason, the youth limit represents only 37.5% of the adult limit.

[14]     I infer from the Judge’s sentencing remarks that he was concerned about the combination of the blood/alcohol concentration, bad driving, and youth.   He was

right to be concerned.  It would be artificial to judge the seriousness of the offending by reference to the adult limit, when legislation was enacted to deal specifically with the effect of alcohol on younger people and to create a disincentive for such people to drive after having consumed alcohol.

[15]     In my view, the Judge was entitled to sentence on the basis that Mr H   was over three times the legal limit for a youth.   That had to be factored into the sentencing process as an aggravating factor.   The manner of the driving and the amount  by  which  Mr  H    was  over  the  youth  limit  combine  to  make  the offending more serious than an adult first offender only 11mgs over the adult limit.

[16]     Having regard to the minimum period of disqualification of three months, I consider that the aggravating factors relating to Mr H  ’s driving entitled the Judge to impose an uplift on the disqualification period to nine months.  While stern, the response was within the range available to the Judge.

[17]     Having taken the view that the quantity of alcohol in Mr H  ’s blood should be measured, for aggravating purposes, by reference to the youth limit, it is unnecessary for me to consider whether the sentence might have been in range in respect of an adult.   For that reason, I do not embark on a consideration of the authorities to which Ms Wendt referred me.

[18]     Ms Price’s other point was that Judge Everitt was not a “local Judge” and the sentence imposed was greater than might have been expected from a resident Judge sitting in the District Court at North Shore.

[19]     While sentences imposed by resident Judges assist the local Bar to advise defendants on the likely sentence to be imposed for any particular offence, the desirability of consistency in sentencing (to which s 8(e) of the Sentencing Act 2002 refers) is directed at sentencing on a national basis, not a purely local one.  The plain public interest, absent special circumstances affecting the exercise of a discretion in a particular locality, is to attain a degree of consistency, so that like offenders in all parts of New Zealand are treated alike.  There is no merit in the “local Judge” point.

[20]     I acknowledge that Mr H   pleaded guilty to the offence at an early time. Conviction was, however, inevitable.  I consider that the modest fine imposed (the maximum available fine being $2250) amply allows for the guilty plea.

Result

[21]     For those reasons, the appeal against the term of the disqualification period is dismissed.

P R Heath J

Delivered at 2.00pm on 12 February 2010