M v Police HC Auckland CRI 2008-404-44

[2008] NZHC 632

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2008-404-000044

BETWEEN  M

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         6 May 2008

Counsel:         KK Harding for Appellant

EJ Walker for Respondent

Judgment:      6 May 2008

ORAL JUDGMENT OF RODNEY HANSEN J

Solicitors:           KK, Harding, P O Box 105-590, Auckland for Appellant

Meredith Connell, P O Box 2213, Auckland for Respondent

M V POLICE HC AK CRI 2008-404-000044  6 May 2008

Introduction

[1]      Mr M   pleaded guilty to a charge of driving with excess breath alcohol. He was sentenced to 100 hours community work, ordered to pay Court costs of $130 and disqualified from driving for twelve months.  He appeals against the order to pay Court costs and the period of disqualification.

Background

[2]      Mr  M    was  stopped  by  the  police  when  driving  on  the  Southern Motorway  on  7  December  2007  following  a  complaint  about  his  driving  by  a member of the public.  He was breath tested and found to have 667 micrograms of alcohol per litre of breath.  He had been convicted in 2002 for the same offence.  On that occasion his reading was 491 micrograms of alcohol per litre of breath.

Appellant submissions

[3]      Ms Harding submits that disqualification for twelve months is outside the range which a second drink/driving offence normally attracts.   She provided a comprehensive schedule of cases in which she had been involved to support her position.  She points to the alcohol reading as not particularly high and, on the earlier occasion, not significantly over the limit.  She places some reliance on the fact that Mr M   was automatically suspended from driving for a period of 28 days following his breath test.   The police have that power whenever the breath test exceeds 650 micrograms.  She contends the period of suspension should have been taken into account.

[4]     Ms Harding also argues insufficient weight was given to the personal circumstances of Mr M  .   He had to stay with relations so he could attend his place of work during the period of suspension and, immediately following his conviction, was dismissed from his position.  He has had to make do with temporary

jobs since then due to, among other reasons, the difficulties of arranging transport. As well he has been required to act as caregiver for his mother who is unwell.

[5]      On the issue of Court costs, Ms Harding informs me that the District Court habitually orders a defendant to pay Court costs only when a monetary penalty is being imposed.   In her experience, an order for payment of Court costs is never associated with a sentence of community work.  The schedule of sentences that she provided me with support that submission.

Crown response

[6]      In response, Ms Walker submits that although the sentence of disqualification was at the upper end of the range, it was not manifestly excessive.  She points to the breath/alcohol level involved and driving that was plainly bad enough to attract the attention of a member of the public.  She submits that there is no reason in principle why the period of suspension should be taken into account in determining final sentence and argues that Mr M  ’s personal circumstances are not sufficiently exceptional to require any reduction in the period of disqualification.  She resists any suggestion that, as a matter of course, District Court Judges should not be able to order the payment of Court costs when imposing non-monetary sentences.

Discussion

[7]      In the course of a decision given earlier today (Blanco v Police AK HC 2008-

404-000072, 6 May 2008, Rodney Hansen J), I discussed the factors relevant to a sentence of disqualification for a second conviction.  It is convenient to repeat what I said at paragraphs 11-14:

“[11]    Under s 56(3) of the Act, a person convicted of first or second blood or breath alcohol offence must be disqualified for a minimum period of six months.   For a third or subsequent offence, the minimum period of disqualification increased to 12 months.   The period of disqualification imposed in individual cases, like other elements of the sentence, will depend on the circumstances of the offending and the offender – see the decisions of the Full Court in Ministry of Transport v Graham [1990] 3 NZLR 249 and McEachen v Police [1995] 2 NZLR 251. Of particular relevance to a second conviction will be the level of blood or breath alcohol involved, whether the

offending was associated with other driving offences, the date in circumstances of the previous conviction and the personal circumstances of the offender.

[12]      In Graham, a term of disqualification of two years was upheld on a second conviction.  In that case, the usual range of disqualification in such cases was said to be 12-18 months and in a case referred to me by Mr Wright, Edwards v Police HC New Plymouth AP 31/02 13 August 2002, Chambers J, a total disqualification period of 18 months for a second offence was held not to have been manifestly excessive.  More recent decisions have suggested the usual range for second convictions is 6-12 months – see for example Lake v Police HC Palmerston North AP14/03 4 June 2003, Ronald Young J.

[13]      This trend is supported by a schedule prepared by Ms Harding in which she summarised sentences imposed on clients whom she has represented for second and subsequent excess breath and blood alcohol offences.   This data tends to indicate that the terms of disqualification currently being imposed for second convictions are within the 6-12 months range and, in the absence of serious aggravating circumstances, often not materially greater than the minimum of six months.

[14]     I  accept  that  the  minimum  term  of  disqualification  may  be appropriate  on  a  second  conviction,  particularly  where  there  are  no significant aggravating circumstances, the blood or breath alcohol level is not greatly in excess of the limit and a significant period of time has elapsed since the earlier conviction.   However, it does seem to me that the earlier offence will generally be an aggravating factor and all things being equal the period of disqualification for a second offence will be greater than the minimum.”

[8]      I am satisfied that Mr M  ’s breath alcohol reading and the circumstances of the offending, such as they have been disclosed to me, did not warrant a period of disqualification at the top of the range.

[9]      I also accept that the period of suspension could properly have been taken into account when imposing sentence.  I see it as analogous to the credit given for time spent in custody before sentence or, in a proper case, when the offender has been subject to particularly onerous bail conditions while awaiting trial or sentence. A period of suspension is a significant restriction on the rights and freedoms of the individual.  It affects some breath/blood alcohol offenders and not others.  Orthodox sentencing principles require that it is taken into account.

[10]     Although the offending has unhappy consequences for Mr M  , I am not persuaded that the hardship that followed would make a sentence that would otherwise be appropriate disproportionately severe.  However, as I am satisfied that

the period of disqualification imposed was manifestly excessive, it is appropriate that I  give  some  weight  to  his  personal  circumstances,  as  well  as  the  period  of suspension,   in   determining   the   period   of   disqualification   which   should   be substituted.   Taking all factors into account, I conclude that the period of disqualification should be eight months.

[11]     There appears to be no reason in principle why a defendant who receives a non-monetary sentence, should not be ordered to pay Court costs.   However, it is clear that generally the District Court does not order an offender to pay costs unless a fine has been imposed, presumably, on the basis that it would be inconsistent to impose a financial burden on a defendant if a decision has been made not to impose a pecuniary penalty.

[12]     In the absence of fuller argument and explanation as to the basis on which the District Court orders payment of Court costs, I have come to the view that I should quash the order in this case, in order to give effect to the principle enshrined in s 8(e) of the Sentencing Act 2002, of the general desirability of maintaining consistency in sentencing levels.  This finding should not be understood as expressing any general view on the circumstances in which orders for costs should be made.

Result

[13]     The appeal is allowed.  The period of disqualification imposed in the District Court  is  reduced  to  eight  months  and  the  order  for  payment  of  Court  costs  is quashed.

Addendum

[14]     Since delivery of this judgment in open Court, the judgment of Wild J in Wills v Police HC Palmerston North CRI 2006-454-000049, 12 December 2006 has been drawn to my attention.  It contains a better informed and considered discussion of the implications of suspension for sentence than was possible on the material before me.  My reasoning and conclusions on that issue should be read accordingly.