Lawrence v Police
[2013] NZHC 3372
•13 December 2013
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2013-409-000112 [2013] NZHC 3372
DEAN ANDREW LAWRENCE Appellant
v
POLICE Respondent
Hearing: 13 December 2013
Counsel: Appellant in person
S J Jamieson for the Crown
Judgment: 13 December 2013
JUDGMENT OF WHATA J
[1] Mr Lawrence pleaded guilty to a charge of driving with excess breath alcohol. It was his third such offence. He was convicted and fined $850. He was ordered to pay costs and disqualified from holding or obtaining a driver’s licence for a period of one year plus one day.
[2] I understand that the primary grounds for the appeal were that:
... [T]his is my 3rd and 2nd was over 20 years ago, and about the very bad accident Im still recovering from and trying to enjoy being alive and still living.
Background
[3] The background is mercifully short. The appellant pleaded guilty to a charge of driving with excess breath alcohol. The level was 89 milligrams which Judge
Garland acknowledged was a low level. The Judge also accepted there were no
LAWRENCE v POLICE [2013] NZHC 3372 [13 December 2013]
aggravating factors in relation to the driving. Rather the only aggravating factor is the fact that Mr Lawrence had two prior convictions for drink/driving, although it is noted that they were back in 1992 and 1993. The reasons for the sentence are helpfully succinct, namely:
[2] I have read the letter that you have carefully written to the Court. I can see from your letter that things have been pretty tough for you, to say the least, over the last year or two. I would normally consider imposing community work as the least restrictive outcome for a third time before the Court on drink-driving but I think in this case there are some exceptional circumstances which allow me to step back from a sentence of that kind. However, the sentence that I do impose must have a significant aspect of deterrence incorporated in it. In part that is achieved by the minimum period of disqualification that I must impose but also in this case the fine needs to reflect the fact that it is your third time before the Court.
Submissions
[4] Mr Lawrence is self-represented and has prepared a detailed letter in support of his appeal and I am grateful for the measured way in which he has approached the appeal. The following matters have some relevance:
(a) Mr Lawrence is a 47 year old self-employed artist;
(b) The blood test showed an excess blood result of 89 (as compared to
80), but that Mr Lawrence felt fine at the time;
(c) He accepts that this his third conviction, but his second was over 20 years ago in 1993 and that a disqualification for a year and a day seems to be “overkill”;
(d)In June 2011 he was in an accident while riding a motorcycle suffering serious injuries and he is still rehabilitating, having only recently started to go out occasionally;
(e) On the night that he was stopped he had been doing art work and a neighbour gave him a can of beer and then he went to a pub and had a pint of beer and later that night had three McKenna Bourbon stubbies over about four hours;
(f) He says he is over six foot two and 110 kgs but had not eaten on the night;
(g)The boy who almost killed him in the accident only got six months loss of licence;
(h)He does not make a lot of money from his art but enjoys what he does and pays his bills. He also needs to keep going through his rehabilitation from the accident, was initially dependent on his Dad to make appointments, but now his Dad is dependent on him as he has developed depression and his Mum does not like driving;
(i) His sister has recently been diagnosed with cancer;
(j) With no licence, he is going to miss the last of her life if she does die; (k) He reiterates that he did his last DIC 20 years ago.
Submissions for the Crown
[5] The Crown makes the point that disqualification for more than one year is mandatory and Judge Garland imposed the minimum disqualification period that he could under s 56(4). It is helpfully noted, however, by Crown counsel, that there are two exceptions to that mandatory disqualification provided under s 81 and s 94 of the Land Transport Act 1998.
[6] Section 94 is particularly relevant here because it provides the mechanism for the Court to impose a community based sentence in place of a period of disqualification. Section 94 states:
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.
...
[7] Ms Jamieson submits that this section is often used as an option for dealing with persons already subject to a period of disqualification to try and break the cycle of disqualification for them. It is submitted, however, that it is not limited to those cases and reference is helpfully made to Beatson v Police.1 The Crown accepts that there is no suggestion on the file of the sentencing notes that the Court was asked to consider s 94.
[8] The Crown also indicates that the appellant could apply for a limited licence and that he is eligible to apply.
[9] I wish to acknowledge the submissions of the Crown and the Crown is to be commended for taking an appropriately neutral stance to the appeal.
Assessment
[10] I consider that this is a situation where, if acceptable to the appellant, there should be a substitution of a community based sentence under s 94. I consider I am
1 Beatson v Police [2012] NZHC 1064.
able to go down that path, because it appears it was not a matter raised with the
Judge for his consideration.
[11] It therefore falls into the category of a matter that was missed by the Court but obviously for no reason attributable to the Judge.
[12] For those reasons and having looked at the criteria in relation to s 94, I consider that a sentence of community work is appropriate. I am satisfied in this regard that in the circumstances of this case, namely the very low level of the offending, together with the distance between this offending and the previous offending that it is appropriate and indeed in the interests of the public that the Mr Lawrence has the opportunity to get back into work and to be a productive member of society. I also think that a community based sentence would be proportionate to the offending.
[13] So on that basis and having regard to the very comprehensive analysis undertaken by Woodhouse J in Beatson, I consider that a sentence of community work of 80 hours is entirely appropriate. I take into account the fact that a fine has already been paid and there has already been three months’ disqualification.
[14] Accordingly, the appeal is allowed and the disqualification quashed and
substituted with an order of 80 hours’ community work.
Solicitors:
Raymond Donnelly & Co, Christchurch