L v Police HC Christchurch CRI 2010-409-190

[2010] NZHC 1860

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2010-409-000190

L

Appellant

v

POLICE

Respondent

Hearing:         21 October 2010

Counsel:         B Meyer for Appellant

K B Bell for Respondent

Judgment:      21 October 2010

JUDGMENT OF FOGARTY J

[1]      This is an appeal against a period of disqualification imposed by the District Court Judge M R Radford after the appellant had pleaded guilty to drink driving at a level of 525 micrograms, it being an aggravated charge as he had two previous convictions, one in 2002 at 630 micrograms and one in 2006 at 825 micrograms.

[2]      In paragraph [5] of his sentencing notes Judge Radford said:

… You are disqualified for two years from today, and that recognises the repeat nature of the offending.

[3]      Mr Meyer began his submissions on appeal by arguing that that was double counting.   A non-aggravated charge has a minimum penalty of six months and an

L  V POLICE  HC CHCH CRI 2010-409-000190  21 October 2010

aggravated charge a minimum penalty of 12 months and one day. The fact that it has been laid as an aggravated charge has doubled the minimum penalty. He argued that the Judge was not keeping this aspect of the law in mind in paragraph [5].

[4]      In other respects he argued that a disqualification of two years is out of line with the authorities.  As part of that he points out that he had already effectively been disqualified for about two and a half months prior to the sentence.  So he argued the effective disqualification was in the region of two years three months.

[5]      I have been taken through numerous cases by both counsel.  It is difficult of course to compare cases.  Very often, for example, the variables include the level of intoxication  on  this  occasion,  the  level  of  intoxication  on  previous  occasions, whether or not the driving was dangerous and the other aspects of the sentence.  On this occasion the appellant appears to have been stopped by the police, not because he was driving dangerously but just simply to see whether or not he had been drinking and was given a breath screening test.   So this is not occasioned by any dangerous driving.   The level at 525 was significantly lower than some other levels where there have been longer periods of disqualification of up to two years imposed.

[6]      Second, he was sentenced to community work rather than fines and some of the other cases where there are long periods of disqualification, a combination of disqualification plus fines.  In the end I am impressed by a paragraph in a decision of Ellen   France   J   in   Blackler   v   Police   HC   Hamilton   CRI   2005-419-000159

16 December 2005.  I note, by way of parenthesis, that Ellen France J has written a number of decisions on this subject and I have been taken through them.  But in the Blackler case in paragraph [24] she says:

[24]     In terms of twelve District Court cases Mrs Allen includes in her schedule, 18 months is the longest period of disqualification.  She gives one case where the period was 14 months and the other cases all involve the minimum term, i.e. 12 months.   However, with two exceptions, in all of those cases the period of disqualification is coupled with either community work (sometimes with a period of supervision) or terms of imprisonment. Three of the twelve also involve vehicle confiscation.

[7]      Guided by that paragraph I am of the view that coupled with 250 hours of community work a disqualification of two years from the date of sentence, taken in

combination with the effective disqualification of somewhere between two and three months prior to sentence, is a decision which is out of line with the cases and cannot be sustained.     For that reason I consider it open to me as an appeal Judge to substitute a sentence taking into account the effective disqualification prior to the sentencing.

[8]      He has now been effectively disqualified since 30 June, which is a period of three and a half months.   I have in mind an effective period of disqualification of

15 months.  Given that he had somewhere between two to three months, I substitute a sentence of disqualification, effective from 10 September 2010, of 13 months.

[9]      The appellant is to report to the Probation Service at Stanmore Road on

Tuesday, 26 October 2010, between 9 am and midday.

Solicitors:

B Meyer, Christchurch, for Appellant

Raymond Donnelly & Co, Christchurch, for Respondent