M v Police HC Auckland Cri-2010-404-346
[2010] NZHC 2428
•8 December 2010
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2010-404-000346
M
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 6 December 2010
Appearances: R Brown for the Appellant
H R Bates for the Respondent
Judgment: 8 December 2010
JUDGMENT OF DUFFY J
This judgment was delivered by Justice Duffy on 8 December 2010 at 10.00 am, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
Solicitors: Public Defence Service P O Box 76715 Manukau City Manukau 2241 for the
Appellant
Meredith Connell P O Box 2213 (DX CP24063) Shortland Street
Auckland 1140 for the Respondent
M V POLICE HC AK CRI-2010-404-000346 8 December 2010
[1] The appellant, M , appeals against a decision of the District Court which refused to apply s 94 of the Land Transport Act 1998 to substitute a community based sentence for a period of disqualification from driving. The appeal is opposed.
Facts
[2] On 29 June 2009, Mr M was disqualified from driving for a year and one day following his conviction for driving with an excess breath alcohol reading of
933 micrograms. The period of disqualification was due to end on 29 June 2010. However, on 10 May 2010, the police found him driving a motor vehicle on Quay Street. He said he was taking the vehicle to obtain a warrant of fitness. He was charged with and pleaded guilty to one charge under ss 32(1)(A) and 32(4) of the Land Transport Act of driving whilst disqualified (third or subsequent). On
17 August 2010, Mr M was sentenced. He was fined $850 and $130 Court costs, as well as being disqualified from driving for one year.
[3] Before the District Court, Mr M submitted that if he was disqualified for a further period of time, his employment would be placed in serious jeopardy and this in turn would cause his family significant financial hardship. Mr M works as an interpreter for the Ministry of Justice and the Ministry of Health. He says that his job involves him having to respond at short notice to do urgent work at hospital and court. His work also causes him to work outside of the Auckland region. He says this makes it difficult for him to use alternate means of transport. His wife is a licence holder, but she is about to start a new job and so would be unable to be his driver.
[4] In order for s 94 to apply, an offender has to have been previously convicted of an offence resulting in disqualification. This requirement was met because Mr M has been disqualified from driving on a number of occasions. They are:
i) May 1996, excess breath alcohol reading of 1,065;
ii) December 2003, excess breath alcohol reading of 846;
iii) 20 April 2004, driving while disqualified;
iv) 17 July 2004, driving while disqualified; and
v) 29 June 2009, excess breath alcohol reading of 993.
District Court judgment
[5] The sentencing Judge set out the factors the Court must take into account under s 94. These are to be found in s 94(1)(b). They are:
a) The circumstances of the case and of the offender;
b)The effectiveness or otherwise of a previous order of disqualification made in respect of the offender;
c) The likely effect on the offender of a further order of disqualification;
and
d) The interests of the public.
[6] The Judge noted that Mr M did comply with the 1996 disqualification, but all disqualifications after that had not been complied with. Regarding Mr M ’s transport difficulties if a new period of disqualification was imposed, the Judge found that even though Mr M might find it more difficult to transport himself without the use of a car, there was still public transport, and his wife had a driver’s licence.
[7] The District Court Judge acknowledged that it is in the public interest for people to keep their employment. However, he said that this depends on the circumstances of the case.
[8] The District Court Judge referred to how shortly after being disqualified in June 2009, Mr M went overseas, and then once he returned to New Zealand, he was caught driving again.
[9] The Judge considered that the period overseas meant that Mr M had not served any of his disqualification, though the Judge said this was not determinative of the issue.
[10] The Judge noted that the excess breath alcohol conviction in June 2009 was Mr M ’s third. For all three convictions, Mr M had very high readings. The Judge considered that this indicated Mr M has an untreated alcohol problem. The Judge noted that Mr M had not put before the Court any evidence that he had attended any rehabilitation programmes or driving skills courses.
[11] The Judge noted that one of the objects of the Land Transport Act is to promote safe road usage behaviour. The Judge thought that giving Mr M the right to drive would not further that objective, especially when his previous convictions were taken into account.
[12] In summary, the Judge thought it was not in the public interest to grant the s 94 application:
I believe he is a danger to the public whilst he has untreated alcohol problem which is causing him to come before the Courts on a relatively frequent basis with extraordinarily high levels of alcohol in his body. That is the reason he was disqualified. Disqualification was imposed not as some irrational, arbitrary penalty; it was imposed because the law deems him to be a danger and ought not to be on the road. He has failed dismally to comply with the Court’s order and I am not going to grant the application.
Appellate principles
[13] In Keates v New Zealand Police HC Auckland CRI-2010-404-269,
21 September 2010, at [5]-[8], Lang J set out the approach to be taken on appeal relating to s 94:
[5] Before a Judge can impose a community-based sentence, he or she must be satisfied both that a further period of disqualification is inappropriate and that a community-based sentence is appropriate. Those determinations depend upon the weight that the Judge gives to the four factors listed in s 94(1)(b). The weight to be given to each of those factors will vary according to the circumstances of the case. If the Judge decides both ultimate issues in favour of the applicant, the discretion may be exercised in favour of the applicant. If the Judge decides either of those
issues against the applicant, there will be no jurisdiction to grant the application.
[6] The power to make an order under s 94 is therefore, the exercise of a statutory discretion. It is for the Judge who decides the application to weigh up the competing interests and to determine the manner in which the discretion should be exercised.
[7] An appellate court may only disturb the exercise of a judicial discretion in limited circumstances. It may interfere if the appellant can demonstrate either that the Judge in the Court below erred in principle in exercising his or her discretion, or that the ultimate decision was plainly wrong. The appellate court may also interfere where the Judge in the Court below has failed to have regard to a material consideration or has taken into account an irrelevant consideration: Harris v McIntosh [2001] 2 NZLR 721 at 724; May v May (1982) 1 NZFLR 165 at 170.
[8] I do not consider that the decision of the Supreme Court in Austin, Nicholls & Co Inc v Stichting Lodestar [2008] 1 NZLR 14 has affected the manner in which appellate courts must carry out their function when considering an appeal against the exercise of a statutory discretion. I take the view that the approach set out at [7] remains the approach that must be taken on appeal.
[14] I agree with the approach taken by Lang J.
[15] When I look at the District Court judgment in this appeal, it is clear to me that the Judge has taken into account all four factors listed in s 94(1)(b). No one factor is decisive: see Rodgers v Ministry of Transport [1989] 3 NZLR 321.
[16] Regarding Mr M ’s employment situation, the Judge considered it was not going to be impossible for him to transport himself to work, and that this is only one factor to weigh in the balance. I agree with this approach. Whilst there may be occasions when Mr M is required to attend somewhere to provide interpreting services at short notice, there was no evidence before the Court, or before me, as to how often this could arise. Without Mr M providing evidence to show that most of his work is unscheduled or at short notice, it cannot be assumed that this forms the bulk of his work. It may well be that he will have to adopt more regular working hours and reject on-call work for more scheduled work. The use of court interpreters is not inconsistent with planning and scheduling for this event.
[17] Mr M contends that the District Court Judge’s reference to Mr M being overseas for a large part of the last disqualification period is irrelevant, and
that the regard the Court had to this fact caused the District Court Judge to err. It is clear to me that the District Court Judge did not treat this as a determinative factor. The reference is no more than a passing reference which recognises that the burden of that disqualification has to a large extent been avoided. In terms of assessing the circumstances of the offender and the offending (s 94(1)(b)), I consider the fact that an offender has avoided the burden of disqualification to a large extent by being overseas for a good portion of the time the disqualification is in force has some relevance. First, it means the weight of the penalty of disqualification has been modified. Secondly, it means that in a case like this, even though the period of time in which Mr M was disqualified and in New Zealand was short, he was unable to resist the temptation of driving whilst disqualified. In that sense, it is an aggravating feature of his conduct. He is not someone who has faithfully complied with a disqualification of almost a year, and then towards the very end of the period failed for some reason. The longer the period of disqualification, the greater the temptation there may be to drive. When the practical circumstances are that a disqualified offender has only been in New Zealand for a short period of time during the currency of the disqualification, ordinarily the temptation to drive should be lessened.
[18] Mr M has three drink driving convictions, all with very high readings. His conduct to date shows an inability on his part to grasp that he cannot continue to drive whilst disqualified. The District Court Judge obviously concluded that the public safety issue trumps the factors which Mr M relies on. This was a reasonable conclusion and one which it was open to the District Court Judge to reach.
[19] The evidence shows that Mr M is an intelligent man, who is almost 60 years old. He has tertiary qualifications. He was able to provide the District Court with references attesting to his ability and integrity as an interpreter. Against this background, his offending and flagrant breaching of Court orders seems almost incomprehensible. Nonetheless, that is how on occasions he has behaved. I understand why the District Court Judge has attributed the conduct to an alcohol problem. That at least provides some explanation (though no excuse) for the flagrant offending. The last incidence of driving whilst disqualified is without excuse. There
was no need for Mr M to obtain a warrant for the car. This is not a case where an alternative sentence is needed to break the cycle of offending. Put simply, someone like Mr M should know better. He, unlike many repeat disqualified driving offenders, has the intelligence and resources to address his offending and change his ways. I consider that the District Court Judge has carefully identified all the relevant facts. There is no apparent error of law, or any other defect in his reasoning, which would leave the exercise of his discretion open to intervention by this Court.
[20] As was recognised by Asher J in Emani v Police HC Auckland CRI-2009-
404-235, 28 September 2009, at [20], the application of s 94 is an exception to the general application of the penalty of disqualification, and it should only be used in a clear case. I can readily see why the District Court Judge did not treat Mr M as a clear case for the application of s 94.
[21] Accordingly, the appeal is dismissed.
Duffy J
0