Heffernan v Police - [2015] NZHC 947

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2015-441-00003 [2015] NZHC 947

BETWEEN
DYLAN JOHN HEFFERNAN

Plaintiff

AND

NEW ZEALAND POLICE Defendant

Hearing: 6 May 2012

Appearances:

P Ross for the Appellant
M Mitchell for Respondent

Judgment:

6 May 2015

ORAL JUDGMENT OF TOOGOOD J

HEFFERNAN v NEW ZEALAND POLICE [2015] NZHC 947 [6 May 2015]

[1] This is an appeal against the imposition of an indefinite period of disqualification from driving under s 65 of the Land Transport Act 1998 (LTA), following a plea of guilty to a charge under s 56(2) of the LTA of driving a motor vehicle with a blood-alcohol level of more than 80 milligrams of alcohol per 100 millilitres of blood. It is submitted that the District Court Judge was wrong to refuse to make orders for an alcohol interlock licence disqualification under s 65A of the LTA. The appellant argues that the Judge did not consider his counsel’s written submissions and further, that the Judge incorrectly considered that an interlock licence would “ease the immediate effects of disqualification”. He submits that the Judge’s approach demonstrated a misunderstanding of the purpose and effect of s 65A and was wrong.

Factual background

[2] At about 11:15 pm on 22 November 2014, the appellant was driving a motor vehicle on Taradale Road, Napier, when Police observed the vehicle had no headlights on. The appellant’s vehicle continued for about 50 metres, half on the footpath and half on the road. The appellant then swerved the vehicle onto the roadway and pulled the handbrake on to slide the rear of the vehicle to the right, to line the vehicle up with a driveway on the east side of the road.

[3] Police pulled up beside the appellant with flashing blue and red lights but he ignored them and drove up the driveway. A Police officer went to the driver’s door of the vehicle where the appellant was attempting to get out of the locked vehicle.

[4] The appellant’s speech was slurred, his eyes glazed and he smelt of alcohol; the Police asked him to undertake a roadside breath screening test which he refused, and he was taken to the Police station for a breath/blood test. He failed to take an evidential breath test when directed. A blood test was then requested and taken by a registered medical officer. That test returned a reading of 156 milligrams of alcohol per 100 millilitres of blood; just short of double the permitted limit.

[5] The pre-sentence report recommended a sentence of supervision and community detention. The writer identified alcohol abuse and poor-decision making as being the key factors contributing to the appellant’s offending. The writer noted that the appellant was fearful of losing his fulltime employment as an apprentice mechanic if he was unable to have a driver’s licence as his job required him to travel occasionally for work.

Criminal history

[6] Despite being aged only 21 at the time of the offending, the appellant has four previous driving-related convictions:

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] NZHC 947
Decision Date: 6 May 2015

CaseChat Overview and Summary

Dylan John Heffernan appeals against the imposition of an indefinite period of disqualification from driving under s 65 of the Land Transport Act 1998 (LTA) following a plea of guilty to a charge of driving with a blood-alcohol level of more than 80 milligrams of alcohol per 100 millilitres of blood. The appellant argues that the District Court Judge was wrong to refuse to make orders for an alcohol interlock licence disqualification under s 65A of the LTA. The appellant submits that the Judge did not consider his counsel’s written submissions and further, that the Judge incorrectly considered that an interlock licence would “ease the immediate effects of disqualification”. He submits that the Judge’s approach demonstrated a misunderstanding of the purpose and effect of s 65A and was wrong. The court allowed the appeal and set aside the order for disqualification under s 65 of the LTA. The court made an order under s 65A(2)(a) LTA disqualifying the appellant from driving for a period of three months from 27 January 2015 and an order in terms of subparagraphs (i)-(v) of s 65A(2)(b) LTA.

Orders