Harvey v Police HC Auckland CRI-2010-404-000483

[2011] NZHC 1171

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-404-000483

BETWEEN  SHANE WILLIAM HARVEY Appellant

ANDPOLICE Respondent

Hearing:         26 September 2011

Appearances: No appearance for Appellant

K Chang for Respondent

Judgment:      30 September 2011

JUDGMENT OF WHATA J

This judgment was delivered by Justice Whata on

30 September 2011 at 11.00 a.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors:

Meredith Connell, Crown Solicitors, PO Box 2213, Upper Shortland Street, Auckland 1140

Copy to:

C Mitchell, 193 Hurstmere Road, Takapuna, Auckland

Shane Harvey, 7A Servilla Place, Albany, Auckland

HARVEY V POLICE HC AK CRI-2010-404-000483 30 September 2011

[1]      This is an appeal against sentence for a conviction of driving with excess breath alcohol  under s 56(2) of the  Land Transport Act  1998  (“LTA”).   As  the appellant had three previous convictions, he was liable for a minimum period of disqualification of one year. That minimum period was duly imposed.

[2]      The appellant appealed the sentence on the basis that there were special reasons for departing from the minimum period in accordance with s 81 of the LTA.

[3]      This matter was called on 2 May 2011 and adjourned to enable Mr Harvey to properly prepare.  The appeal was then further called on 18 July.  Mr Harvey did not appear.  It appears that he was attending another Court on a different matter.  Allan J then adjourned it one further and final time to 26 September 2011, at 11.45 a.m.

[4]      This  matter  was  called  at  that  time  and  there  was  no  appearance  by Mr Harvey.  I stood the matter down until 2.15 p.m. and instructed the Registrar to endeavour to make contact with Mr Harvey.  I am advised by the Registrar that he phoned the appellant’s workplace, but was unable to reach him.

[5]      When  the  matter  was  called  at  2.15  p.m.,  Mr Harvey inevitably  did  not appear.

[6]      On  that  basis,  given  the  several  adjournments  already  afforded  to  the appellant, and the failure of the appellant to attend Court at the appropriate time, I dismissed the appeal.

[7]      I note for completeness that I have reviewed the reasons identified in the submissions filed on Mr Harvey’s behalf and also recorded in the judgment below.  It is evident to me that the circumstances outlined would not justify an exercise of a discretion   departing   from   the   default   statutory   minimum.      The   relevant circumstances included:

(a)      The appellant had only driven to pay his respects to the family of a young woman who had recently died – however, after drinking, he should have found an alternative way to get home;

(b)He only drove his vehicle because he was concerned his car might be broken into as he was parked in a dead-end street with poor lighting – however, again,this was of the appellant’s own making and he did not merely relocate the car, but drove further;  and

(c)      The motor accident was not the fault of Mr Harvey – however, this is of very limited relevance as Mr Harvey has not been charged with causing the accident but for driving with excess breath alcohol.

[8]      I would also observe that the distance driven was not short.  Mr Harvey had driven 1.14 kilometres when the accident occurred and had a further 30 to 35 kilometres to reach his destination.

[9]      Accordingly, I am satisfied that procedurally and substantively the appeal should be dismissed.

Whata J