H v Police HC Hamilton Cri-2009-419-76

[2009] NZHC 2268

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2009-419-000076

H

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         9 December 2009

Counsel:         N Brodnax for the appellant

P Cornege for the respondent

Judgment:      9 December 2009

(ORAL) JUDGMENT OF STEVENS J

Solicitors/Counsel:

N Brodnax, PO Box 14155, Five Cross Roads, Hamilton 3252

Crown Solicitor, PO Box 19173, Hamilton 3244

H V NEW ZEALAND POLICE HC HAM CRI-2009-419-000076  9

December 2009

Introduction

[1]      This is an appeal by H   (the appellant) against a decision by Judge T H Everitt in the District Court at Hamilton declining the appellant's application under s 81 of the Land Transport Act 1998 (the Act) for the Court to find that there were special reasons why the appellant should not be disqualified from driving and refusing under s 94 of the Act to substitute for a period of disqualification a community-based sentence.   These applications followed the appellant’s plea of guilty to a charge of driving with excess breath alcohol when he was caught at a Police checkpoint driving with an excess breath alcohol level of 607 micrograms of alcohol per litre of breath.

Factual background

[2]      The essential factual circumstances surrounding the offence are set out in the sentencing notes of Judge Everitt as confirmed and amplified in the appellant’s affidavit filed in support of this appeal.

[3]      The appellant left home late on the evening of 7 August 2009, following a domestic dispute that was getting out of hand.  He had been drinking at home and planned to remain there for the evening and watch rugby.  After the altercation he set off to drive to a friend’s place where he was intending to stay the night. Unfortunately, his decision to drive resulted in him being stopped by Police at a checkpoint.  The charge followed from having failed the breath test.

District Court decision

[4]      Judge Everitt carefully considered the submissions made on behalf of the appellant, but found that the reasons advanced did not constitute special reasons under s 81 of the Act.  The Judge plainly took into account the appellant’s personal circumstances and the circumstances leading up to the offending.  In particular, the Judge found that there were a number of alternatives open to the appellant rather than driving.  The Judge noted that his home was in a typical residential street where

there were various ways in which the appellant could have sought help other than driving.

[5]      Regarding the application under s 94 of the Act, the Judge found that it was not in this case in the public interest to substitute a community-based sentence for the disqualification imposed.   The Judge noted the appellant's two previous convictions occurred in 1988 and 2001.   The Judge described the appellant as a “recidivist drunk driver.  His problems are chronic.  They have been going on since

1988 right through to the present time”.  The Judge also noted that the appellant had “driven whilst affected by alcohol, anxiety, depression and an affected mental state which is a toxic and very dangerous cocktail for a driver on the road”.

[6]      Counsel for the respondent accepted that the description of the problems being “chronic” was probably to overstate the position, but nevertheless it is clear that the appellant has had issues with alcohol and for a considerable period.

[7]     In determining penalty, the Judge referred to the appellant’s personal circumstances and imposed a sentence of 12 months supervision with special conditions.   He also disqualified the appellant from holding or obtaining a motor driver’s licence for one year and one month commencing from the date of sentence.

Approach on appeal

[8]      A defendant has a general right of appeal against conviction or sentence pursuant to s 115 of the Summary Proceedings Act 1957.  A general appeal is by way of rehearing: see s 119.   The High Court’s general powers on rehearing are outlined in s 121.

[9]      The Supreme Court in Austin Nichols & Co Ltd v Stichting Lodestar [2008]

2 NZLR 141 considered the principles applicable to general appeals. Giving the judgment of the Court, Elias CJ stated at [16] that:

Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the

appellate court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. In such circumstances it is an error for the High Court to defer to the lower Court’s assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion.

[10]     Accordingly, in a general appeal, the appellant has the onus of satisfying the appellate court that it should differ from the original decision.   But the appellate court must come to its own view on the merits: see Austin Nichols at [3]-[5].  The appeal against the decision under s 81 of the Act involves an appeal in respect of a point of law.  The appeal in respect of the refusal to substitute a community-based sentence for disqualification involves the exercise of a discretion.   There is some debate as to whether the Supreme Court’s decision in Austin Nichols on the proper approach for an appellate court to take in general appeals is applicable to appeals against discretion.  The focus of this debate concerns the interpretation of [17] of the decision which provides:

In the present appeal there was no basis for caution in differing from the assessment of the tribunal appealed from. The case entailed no question of credibility. It turned on a judgment of fact and degree, not the exercise of discretion entrusted to the tribunal. We are of the view that the Court of Appeal was not correct to suggest that, because the decision turned on a value judgment apparently open to the Assistant Commissioner, “the High Court Judge ought not to have embarked on a reconsideration of the issue without considering, and giving weight to, the Assistant Commissioner’s conclusion”. The High Court Judge was obliged to reconsider the issue. He was entitled to use the reasons of the Assistant Commissioner to assist him in reaching his own conclusion, but the weight he placed on them was a matter for him.

[11]     In  D  v  Police  HC  TAU  CRI  2008-470-22  9  September  2008,  Heath  J considered that the Supreme Court in Austin Nichols offered more general guidance about the appellate function, but did not intend to change the law on the approach taken to appeals against discretionary decisions.  I agree.  Therefore, I consider that Austin Nichols has not changed the appellate approach to appeals against discretionary decisions.  The appellant must show that the first instance Judge erred in law, failed to take into account relevant matters, took into account irrelevant matters or was plainly wrong: see May v May (1982) 1 NZFLR 165.

Submissions of the appellant

[12]     The  appellant’s  counsel,  Ms  Brodnax,  filed  helpful  and  comprehensive written submissions, together with an affidavit of the appellant in support.   The affidavit highlighted the personal circumstances of the appellant noting that he was married but now separated and has primary care of the four young children of the marriage ranging in age from 17 years down to six years.   The appellant is also employed fulltime and any disqualification will not affect his employment.  Further, he lived for a long time with his wife who suffered bipolar disorder and was prone to sudden unpredictable mood swings.   He himself has suffered from depression and anxiety as referred to in the medical certificate annexed to the affidavit.

[13]     The affidavit also set out the circumstances leading up to the driving that evening.  I do not propose to elaborate on those in this decision, but note that I have carefully considered the facts and elaboration in the appellant’s affidavit.

[14]     Particular points regarding the potential impact of the disqualification include the fact that his children are entirely dependent on him for transport outside school hours.  He has also expressed concern about his wife’s new domestic arrangements, which he claims have the potential to create violence and might put the children at risk.  He said that he might need to be in a position to collect the children at short notice if they call for help while visiting the mother.

[15]     Counsel’s submissions dealt first with reasons why the failure of the Judge to find special reasons was wrong as a matter of law.  In particular, reference was made to the mental state of the appellant and the possible effect this might have had on the Judge’s decision.  It was noted that the appellant suffers depression and anxiety and that this was a contributing factor leading to his decision to drive.

[16]     Counsel referred to a number of factors which might have been considered as special reasons.  She referred to the decision of Kairau v Police HC WN CRI 2005-

485-154 9 December 2005.   There, Ronald Young J in a case dealing with an application under s 106 of the Sentencing Act 2002 found that the appellant had

driven as a result of a family emergency and at a time when she also had a low threshold for good decision making through depression.

[17]     The submissions also dealt with reasons why the Court might consider that the Judge wrongly exercised his discretion under s 94 of the Act.  Counsel addressed the  Court  orally,  in  addition,  making  the  point  that  the  Court  should  take  into account each of the factors referred to in s 94(1)(b)(i)-(iv).  In particular, it might be thought that there was no need for there to be a disqualification, particularly as the appellant was undergoing a sentence of supervision during which both his mental health and alcohol problems would be able to be addressed.

[18]     Counsel submitted that there was no need for the imposition of a sentence of disqualification in the public interest.  Rather, it would be appropriate to substitute a disqualification with an additional sentence of community work, to run concurrently with the sentence of supervision.

Submissions for the respondent

[19]     The written submissions of Mr Cornege for the respondent addressed the relevant authorities on s 81, including Lower Hutt City v McAlpine [1972] NZLR

168.   There the Court set out three matters which must be considered when determining whether special reasons for not ordering disqualifications exist as follows:

a)        Whether   in    law   the   particular    circumstances    are    capable    of constituting special reasons;

b)        Whether special reasons exist on the facts; and

c)        Whether the Court should exercise its discretion in whole or in part. [20]      Counsel also submitted that any special reason must be special to the facts

which constitute the offence, that is the driving and not one peculiar to the offender:

see Whittal v Kirky [1974] KB194.

[21]     Finally,  it  was  submitted  on  s  81  of  the  Act  that  the  Judge  properly considered  the  facts  relevant  to  the  offending  and  concluded  that,  because alternatives were available to the appellant, the reasons for the offending could not constitute special reasons.

[22]     So far as the decision under s 94 of the Act is concerned, counsel submitted that  the  Judge  had  properly  declined  to  exercise  his  discretion  to  substitute community work for the term of disqualification.  In particular, the Court correctly took into account the factor relating to the interests of the public.

Discussion

Section 81

[23]     This is an appropriate case in which to apply the test as set out in Lower Hutt City.  In that case, Beattie J elaborated on what might involve special reasons and he stated  at  171  that:  “special  reasons  embrace  only  factors  of  a  particular  or exceptional character”.  He went on to refer to a decision of Brewer v Metropolitan Police Commissioner [1969] 1 WLR 267, which was an example of special reasons being found where the driver was ignorant of the combined effect of a small consumption of alcohol with the inhalation of fumes from a chemical called trichloroethylene. Such a case is similar to the lacing of drinks example, which might, depending on particular circumstances, amount to special reasons.

[24]     The case of R v Crossen [1939] NI 106 is also pertinent.  There at 112 the

Court defined a special reason as:

…mitigating or extenuating circumstance, not amounting in law to defence to the charge, yet directly connected with the commission of the offence, and one which the Court ought properly to take into account when imposing punishment.

[25]     Applying the principles as outlined, the appellant has not demonstrated any basis to show that the Judge’s reasoning was in error.   There were obvious alternatives available to the appellant when he drove that evening.  The Court should not  be  seen  to  encourage  driving  with  excess  breath  or  blood  alcohol  where

alternatives  are available, and those alternatives are not merely fanciful but are realistic.  In such circumstances it is unlikely that the Court would find that special reasons exist.   In this case the particular circumstances were not of an emergency which required the appellant to drive.

[26]     I agree with the submission on behalf of the respondent that, even if the Judge had held that the circumstances could amount to special reasons, then the Judge  nevertheless  would  have  been  required  to  determine  whether  he  should exercise his discretion.  I am satisfied that this would not be an appropriate case in which to exercise the discretion to find special reasons in fact existed.

Section 94

[27]     Section 94 of the Act provides:

94   Substitution of community-based sentences

(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 licence; and

(b)   The court, having regard 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]

(2)   Despite any provision of this Act that requires a court (in the absence of special reasons relating to the offence) to order a person convicted of an offence to be disqualified from holding or obtaining a driver licence, the court may instead make an order referred to in subsection (3) if this section applies.

(3)   If the court sentencing an offender determines under this section not to make an order of disqualification,—

(a)The  court  must  impose  a  community-based  sentence  on  the offender; and

(b)   The imposition of such a sentence does not limit or affect the power of the court to impose any other sentence for the offence that,  in  accordance  with  the  provisions  of  the  [Sentencing  Act

2002], it may impose in addition to the community-based sentence;
and

(c)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 offender would otherwise have been liable to disqualification from holding or obtaining a driver licence.

(3A)For the purposes of subsection (3)(a), the court may impose a sentence of   supervision   [or   intensive   supervision]   as   a   community-based sentence if—

(a)   that sentence is appropriate; and

(b)   a suitable programme is available; and

(c)   the offender attends a suitable programme.] (4)   This section does not apply if—

(a)   section 63 or section 65 applies; or

(b)the offender is prohibited from applying for a limited licence under section 103(2)(a), (b), or (d).

[28]     With respect to the circumstances of the case and the offender, fortunately this is a case where there was no accident, no injury and no bad driving.   The appellant had driven a relatively short distance before being picked up at a checkpoint.  The balance of the circumstances are as stated by the Judge.

[29]   So far as the effectiveness or otherwise of the two previous orders for disqualification,  it  seems  that  they  were  effective  in  that  they  have  led  to  the appellant not drinking and driving for considerable periods.   Indeed, some eight years have passed since his most recent offending in 2001.

[30]     So far as the likely effect on the offender of a further order of disqualification is concerned, I consider that disqualification would be salutary.  It will not affect his job, fortunately, but it will cause inconvenience.   Indeed, it is intended to be an

appropriate form of punishment, particularly where, as here, this is the third case of drink driving.

[31]     So  far  as  the  interests  of  the  public  are  concerned,  the  Courts  must  be concerned about drink driving and it is plainly in the interests of the public that the appellant be kept off the roads for a considerable period of time having committed his third offence of this kind.  Generally speaking, with respect to applications under s 94 of the Act, I consider that applications for substitution of disqualification with a community based sentence are not intended to be routine.   A good example of a suitable  case  where  the  section  was  successfully  invoked  was  in  the  case  of Hurlstone v Police HC GIS CRI 2008-416-0017 15 December 2008.

[32]     Despite all that Ms Brodnax has said, the appellant has not succeeded in demonstrating that the Judge wrongly exercised his discretion to decline to apply s 94 of the Act.  So far as the applicable test is concerned, this is not a case where the Judge failed to take into account relevant matters, or took into account irrelevant matters.  Moreover, the appellant has not succeeded in demonstrating that the Judge was plainly wrong.

[33]     Accordingly, both grounds of appeal advanced on behalf of the appellant cannot succeed.

Result

[34]     The appeal is dismissed.

Stevens J