Hughes v Police HC Napier CRI 2010-441-17

[2010] NZHC 1289

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2010-441-17

BETWEEN  CARL ROSS HUGHES Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         3 August 2010

Counsel:         M J Phelps for Appellant

J D Lucas for Respondent

Judgment:      3 August 2010

(ORAL) JUDGMENT OF HEATH J

Solicitors:

Crown Solicitor, Napier
Counsel:

M J Phelps, Hastings

HUGHES V NEW ZEALAND POLICE HC NAP CRI 2010-441-17 [3 August 2010]

The appeal

[1]      Mr Hughes appeals against part of a sentence imposed by Judge Rea, in the

District Court at Hastings, on 10 June 2010.

[2]      Having pleaded guilty to charges of dangerous driving and driving with an excess blood alcohol concentration, Mr Hughes was sentenced to an effective term of imprisonment of one year and was “disqualified” for a period of three years from the date of sentence.  The term of imprisonment is not challenged on appeal.  The appeal is directed to the length of the disqualification period.

[3]      This was the third occasion on which Mr Hughes had been convicted of driving with an excess blood or breath alcohol level.

The facts

[4]      In January 2010, Mr Hughes was employed as a bus driver by GO BUS Transport Ltd.  That company operates a public transport service in the Hawkes Bay.

[5]      On Monday 25 January 2010, in the late afternoon, Mr Hughes was driving a bus along Karamu Road in Hastings.   He had previously uplifted passengers from the Hastings Library, in Eastbourne Street, and from the Hawkes Bay Hospital.  The bus was travelling towards Napier, on the Expressway known as SH 50A.

[6]      While driving along the Expressway, Mr Hughes tail-gated vehicles only metres in front of the bus.   On one occasion, the bus crossed the centre line.   On another, it overtook a motor home dangerously.  Mr Hughes was seen “fiddling with the money machine”.  He was also observed not to be concentrating on his driving. At the time those events occurred there was heavy rain.  The traffic at that time of the evening was, as one would expect, busy.

[7]      Some passengers were so concerned about their safety that they alighted the bus before their destination and called the Police.

[8]      Mr Hughes was stopped for a breath alcohol test to be taken at about 5.50pm. An evidential breath test returned a positive result.   Mr Hughes elected to take a blood test.  Following the taking of a blood specimen, his blood was found to contain

290mgs of alcohol per 100mls of blood.  That is more than three and a half times the legal limit of 80mgs of alcohol per 100mls of blood.

[9]      Mr Hughes’ explanation to the Police was that he had been at a funeral earlier in  the day but  had  “bugger all  to  drink”.    Subsequently,  in  discussions  with  a probation officer, Mr Hughes continued to minimise the amount of alcohol he had consumed.  However, he had acknowledged the need to gain some form of assistance with regard to his alcohol consumption.

[10]     Mr Hughes was charged with both dangerous driving and driving with an excess blood alcohol concentration.   His earlier convictions for driving with an excess blood or breath concentration, were on 11 June 1983 and 26 December 2002 respectively.

The sentencing in the District Court

[11]     At sentencing, Judge Rea focussed his attention on the aggravating factors involved in the offending.   He referred to Mr Hughes as someone “who was undertaking what was supposed to be professional duties as a bus driver, in breach of [his] trust to [his] employer, in breach of trust to [his] passengers and in breach of trust to the community generally, driving in a dangerous manner with over three and a half times the legal limit that [he was] entitled to [in his] system”.   The Judge reflecting  the  comment  I  made  earlier,  regarded  Mr  Hughes  as  attempting  to

minimise his behaviour, in his comments to the probation officer.[1]

[1] Police v Hughes DC Hastings CRI 2010-020-761, 10 June 2010 at paras [4] and [5].

[12]     The very experienced District Court Judge added that Mr Hughes’ driving was “amongst the very worst that I have ever encountered in terms of drink/driving as a single offence”.  The Judge considered that the community was entitled to let Mr Hughes know that there was a price to pay.  He placed specific emphasis on the need

for deterrence in relation to people who were prepared to risk the lives of others while driving with an “extraordinarily high level of alcohol” in their blood while undertaking normal employment.[2]

[2] Ibid, at para [7].

[13]     In ordering disqualification the Judge said this:

[9] You will also be disqualified in relation to each of these two charges for a period of 3 years from today, those terms to be concurrent  – running together – making a 3 year disqualification.

[14]   The Judge did not differentiate, in his sentencing remarks, between a disqualification from holding or obtaining a driver licence and disqualification from driving a vehicle in a transport service.  That is an aspect to which Mr Phelps, for Mr Hughes, has referred in argument today.  I return to deal with that point later.

Competing submissions

[15]     Mr Phelps, submits that a disqualification from holding or obtaining a driver licence of three years was both clearly excessive and inappropriate.    He acknowledges that, for the purpose of this appeal, a disqualification from driving in the  public  transport  arena  for  a  period  of  three  years  could  not  be  criticised. However,   he   submits   that,   particularly   having   regard   to   the   sentence   of imprisonment imposed, a lesser sentence ought to have been imposed in respect of the disqualification from holding or obtaining a driver licence.  Mr Phelps submits that a period of between 18 months and two years would have been sufficient to mark the offending.

[16]     Mr Lucas, for the Police, submits that, while the Judge ought to have made an order  under  s 63(1)  of  the  Land  Transport  Act  1998  (the  Act)  in  relation  to  a disqualification from driving a vehicle in a transport service, the sentence imposed should, nevertheless, be confirmed by this Court on the basis that a concurrent term of three years disqualification for both the holding or obtaining a driver licence and driving in a transport service is required to mark the offending.

Analysis

[17]     Judge Rea regarded this case as near to the worst of its type.[3]   As I have said, he is a very experienced District Court Judge who has seen many offences of this type over a number of years.  From my point of view, I find it difficult to quibble with his assessment.   The totality of the offending, which a sentence must mark, involved a public bus being driven dangerously on an Expressway, while carrying members of the public to Napier in wet and potentially hazardous conditions.

[3] Ibid, at para [7].

[18]     Moreover, a major contributing factor to the driving was Mr Hughes’ level of intoxication, more than three and a half times the legal limit.  For a person who is charged with driving with an excess blood alcohol concentration on a third or subsequent occasion, the Court is required to order that person to be disqualified from holding or obtaining a driver licence for more than one year.[4]   In the context of a disqualification of three years, it is difficult to see how a disqualification of two years in excess of that minimum period could be regarded as clearly excessive.

[4] Land Transport Act 1998, s 56(4)(b).

[19]     The point can be demonstrated by positing the situation of a motorist who has driven a private vehicle with a blood alcohol level only slightly in excess of the legal limit, say 85mgs of alcohol per 100mls of blood.   Such a person, with the same number of prior convictions that Mr Hughes had, would be sentenced to a minimum mandatory disqualification of one year and one day.

[20]     Loss of a livelihood is an inherent consequence for a person who drives for a living.  In the circumstances of this case, the ability to rehabilitate after release from prison is not something which can work in favour of a person who has been disqualified because of road safety concerns, particularly when special conditions of release have been imposed to ensure that efforts are in fact maintained to meet the alcohol problems that Mr Hughes faces.

[21]     The way in which the legislation is structured suggests that the first port of call for the Court is the need to determine the appropriate sentence for the specific

offence.   That requires the court to disqualify from holding or obtaining a driver licence for a period in excess of one year.  In my view, it was open to the District Court Judge to take the view that a disqualification period of three years was appropriate,  given  the  appalling  driving  and  total  lack  of  judgment  shown  by Mr Hughes on the occasion in question.

[22]     Where s 63 of the Act comes into play is in relation to the need to disqualify a person from driving a vehicle which is used in a transport service other than a rental service.  Section 63(1) requires the Court, in addition to any other penalty the Court  may  impose,  to  disqualify  that  person  from  driving  a  vehicle  used  in  a transport service for such period exceeding one year but not more than 10 years, as the Court thinks fit.  Section 63(2) makes it clear that s 63 does not limit the power of a Court under any other provision of the Act to disqualify a person for a period in excess of 10 years.   Further, the ability to impose a community-based sentence in

substitution for a disqualification order is excluded.[5]

[5] Ibid, s 63(5); cf s 94 of the Act.

[23]   In the circumstances, the Judge was right to conflate the period of disqualification in the manner he did.  I take it as simply a matter of expression that the Judge merged the two types of disqualification.   Having said that, it is understandable, given the way in which submissions were made on sentencing, that the Judge did not identify the two specific periods separately.  Nevertheless, it will be necessary, in form, to allow the appeal so that the disqualification orders may be imposed discretely as the legislation requires.

Result

[24]     Although the grounds of appeal advanced on behalf of Mr Hughes fail, the appeal is nevertheless allowed in order to achieve that end.

[25]     The concurrent sentences of disqualification imposed by the District Court

Judge are set aside.  In substitution, on each charge, Mr Hughes is disqualified from holding  or  obtaining  a  driver  licence  for  a  period  of  three  years.    He  is  also

disqualified from driving a vehicle in a transport service for a period of three years. Those sentences are imposed on each charge and run concurrently.

[26]     I thank counsel for their assistance.

P R Heath J