M v Police HC Nelson CRI 2009-442-7

[2009] NZHC 572

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI 2009-442-07

M

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         19 May 2009

Counsel:         R Frost for Appellant

C Stevenson for Respondent

Judgment:      19 May 2009

ORAL JUDGMENT OF RONALD YOUNG J (Appeal against sentence)

[1]      This appeal is based on the narrow ground that the District Court Judge erred in concluding that the historic nature of the appellant’s previous breath  alcohol convictions did not amount to special reasons for reducing the mandatory minimum disqualification pursuant to s 81 of the Land Transport Act 1998.

[2]      In the mid afternoon of 31 December 2008 the appellant was stopped by the Police and ultimately breathalysed.   He gave a  reading of  1090  micrograms  of alcohol per litre of breath.   When charged, he pleaded guilty to an offence under

s 56(1) of the Land Transport Act 1998.

M V NEW ZEALAND POLICE HC NEL CRI 2009-442-07 19 May 2009

[3]      Mr M   had been similarly convicted in 1974, 1979 and 1984.

[4]      At sentencing the appellant submitted, given the historic nature of his three previous  convictions,  that  there  were  “special  reasons  relating  to  the  offence” (s 81 Land Transport Act) which justified a disqualification of less than the twelve months minimum provide for in s 56(4).

[5]      The Judge accepted that the appellant was entitled to raise the question of whether there were special reasons relating to the offence to reduce the mandatory minimum disqualification but concluded on the facts that no such special reasons had been established.

[6]      The Judge sentenced the appellant to 140 hours’ community work, together with supervision and disqualified him from driving for twelve months and one day.

[7]      The appellant’s submissions are based on the approach of Winkelmann J in Maniapoto   v   Police   (CRI   2008-463-1,   Rotorua   Registry,   18 April 2008). Ms Maniapoto was disqualified by a District Court Judge for twelve months and one day for her third conviction for drink driving.   Her most recent conviction in November 2007 involved driving with a breath alcohol level of 881.  Ms Maniapoto had previously been convicted twice in June 1988 for driving with an excess breath alcohol level.

[8]     The “special reason” justifying a reduction in the mandatory minimum disqualification asserted by counsel for the appellant was the length of time between qualifying convictions in 1988 and the current offending in 2007.

[9]      As to this the Judge said:

[20]     I  consider  that  the  fact  that  the  two  previous  offences  were committed some 20 years previously and both within a period of six days is in itself capable of amounting to “special reasons”.   It can readily be ascertained by a contextual analysis of the legislation that the legislative intent behind the increased minimum period of disqualification under s 56(6) is an escalation of penalty to deter repeated drink driving.  There may also be public safety considerations in the increased period of minimum disqualification; taking recidivist drink drivers off the roads for a longer period  of  time.    However,  in  this  circumstance,  Ms Maniapoto  cannot

properly be characterised as a recidivist drink driver.   She seems to have made very genuine attempts to turn her life around.  I am also satisfied that the circumstances are such that it can at least be said that she did not lightly drink drive on the night in question.  If the Judge had s 81 referred to him, he would   have   been   justified   in   reducing   the   minimum   period   of disqualification to the minimum period that would have been  applied  if Ms Maniapoto was in fact a first time offender in respect of drink driving. That would provide a minimum period of disqualification of six months. Such a reduction does not undermine the deterrence and public safety objectives of s 56.

[10]     In  Maranui  v  Police  (HC  Wanganui,  CRI 2009-483-9,  1  April 2009) Dobson J took a different approach.  He held that:

The mere length of time since the last relevant conviction cannot constitute special reasons relating to the offence.

[11]     I prefer to the approach of Dobson J.   The first question to be posed and answered in the s 81 enquiry, is whether the asserted “special reasons” do relate to “the offence” in terms of s 81(1).  Unless they do no further analysis of the facts are required.

[12]     The  appellant  was  charged  with  an  offence  under  s 56(1)  of  the  Act. Section 56(1) provides as follows:

56       Contravention of specified breath or blood-alcohol limit

(1)A person commits an offence if the person drives or attempts to drive a motor vehicle on a road while the proportion of alcohol in the person's breath, as ascertained by an evidential breath test subsequently undergone by the person under section 69, exceeds 400 micrograms of alcohol per litre of breath.

[13]     And s 56(3) provides for the penalty for first and second such offending.

[14]     Section 56(4) provides as follows:

56       Contravention of specified breath or blood-alcohol limit

….

(4)If a person commits a third or subsequent offence against subsection (1) or subsection (2) or [any of sections 58(1), 60(1), or 61(1) or (2)] (whether or not that offence is of the same kind as the person's first or second offence against any of those provisions), the person commits an indictable offence and on conviction—

(a)      The  maximum  penalty  is  imprisonment  for  a  term  not exceeding 2 years or a fine not exceeding $6,000; and

(b)The court  must  order  the  person to  be  disqualified from holding or obtaining a driver licence for [more than 1 year].

[15]     In Basile v Atwill [1995] 2 NZLR 537 the Court of Appeal considered the phrase “special reasons relating to the offence” although in a different statutory context. Richardson J said (at 539):

The special reasons must relate to the facts involved in or connected with the commission of the offence in the particular case.

[16]     And in Cameron v R (CA) 329/02, 29 November 2002 the appellant had sought special leave to appeal against a sentence imposed pursuant to s 56(4) on the basis that his first relevant conviction could not be relied upon for s 56 purposes because it was time barred under s 10B of the Crimes Act 1961.

[17]     The Court held that the previous convictions were not an ingredient of an offence  against  s 56(1).    Section 10B,  therefore,  did  not  apply  to  s 56(4).    In assessing the nature of the sections the Court said:

[4]      … The actus reus of s 56(1) offending to which s 56(4) applies is, however, no different from what it would be if it was first or second offence against s 56(1). …

[5]       We agree with counsel submissions that s 56(4) is not intended to create a separate offence.   It concerns the level of penalty available for a s 56(1) offence in the circumstances postulated in s 56(4) …

[18]     Applying  the  approach  in  Basile  and  Cameron  I  am  satisfied  that  the “offence” referred to in s 81 in this case is the offending identified in s 56(1) of driving a motor vehicle with an excess breath alcohol level.  The increased penalties the appellant was liable for because of repeat drink driving were not part of the offence for the purpose of s 81.

[19]     This is consistent with the purpose behind s 81.   Parliament has seen fit to exclude the personal circumstances of the offender from any category of special reasons entitling consideration of reduced mandatory disqualification.  The previous criminal record of the offender is personal to that offender.  Therefore, permitting the detail of the offender’s past record to be the basis of “special reasons” seems to

offend against Parliaments wish that personal circumstances of an offender must not be taken into account in deciding if there are special reasons.   I am, therefore, satisfied that whatever the historic nature of the previous convictions of the appellant they cannot be considered as special reasons relating to the offence because they do not relate to the offence itself.

[20]     For rather different reasons, therefore, I am satisfied the Judge’s conclusion was correct and the appeal will be dismissed.

Ronald Young J

Solicitors:

R Frost, Bamford Law, PO Box 730, Nelson

C Stevenson, Pitt & Moore, PO Box 42, Nelson, email: craig[email protected]