M v Police HC Rotorua CRI 2008-463-1

[2008] NZHC 548

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2008-463-1

M

Appellant

v

THE POLICE

Respondent

Hearing:         18 April 2008

Appearances: Mr Birks for appellant

Mr Bird for respondent

Judgment:      18 April 2008

ORAL JUDGMENT OF WINKELMANN J

P T Birks, Barrister, Rotorua

Crown Solicitor, Rotorua

M V POLICE HC ROT CRI 2008-463-1 18 April 2008

[1]     Denise M   appeals against a sentence of 12 months one day disqualification from driving imposed upon her by District Court Judge Holderness in respect of a third conviction for a drink driving offence.   She appeals on the grounds that the Judge failed to have regard to special reasons which she claims exist in relation to the offending and that justify departing from the statutory minimum period of disqualification.  Alternatively, she appeals on the grounds that the Judge failed to consider the possibility of the substitution of a community based sentence under s 94 of the Land Transport Act 1998.  It is not argued that the Judge erred in any particular respect, but rather that because of Ms  M  ’s  lack  of legal representation when her guilty plea was entered, matters relevant to sentence were not brought to the Judge’s attention.

[2]      The offending for which Ms M   was convicted occurred in November

2007 at approximately 11.30 pm.   Ms M   was driving her car along Rifle Range Road, Taupo and was stopped after she was observed going through a give way sign at approximately 50 kph.   Breath testing procedures were completed revealing a level of breath alcohol of 881 micrograms of alcohol per litre of breath. In the summary of facts it is stated that Ms M   told the police that she was going to town to try and find her niece and nephew as the police were not doing their job properly.

[3]      The two previous convictions for driving with excess breath/blood alcohol were both in June 1988.  In his sentencing notes, the District Court Judge said that he was going to deal with Ms M   effectively as if she were a first offender because her previous two offences occurred 20 years ago.   She was nevertheless liable for a minimum disqualification of 12 months because it was her third conviction.  Saying that he was giving her credit for her early guilty plea, he fined her $880 and ordered that she pay court costs of $130.  He required that payments be made at the rate of $30 per week with the first payment on 12 December 2007.  He disqualified her from holding or obtaining a driver’s licence for a period of 12 months and one day commencing on 3 December 2007.

[4]      Ms M   has filed an affidavit in support of her appeal and has been cross-examined today in relation to that affidavit.  She says in her affidavit that she did not have a lawyer speak for her at court on the day that she entered her guilty plea and was sentenced, because the duty solicitor told her that she did not need a lawyer, when her previous drink driving convictions were almost 20 years ago.  She did not speak for herself as she felt she was put on the spot, having expected legal representation.  She said that she learnt after sentence that she should have spoken to the Judge about how she came to be driving and given more information to the court.

[5]      Until February of this year, Ms M   was a full-time mother to her children, now aged six, four and three.   When her youngest reached pre-school in February, she started work on a farm milking cows.  That is the job she currently holds.  She has no formal education for a career, and as she is the sole provider for the family she wanted to obtain some qualifications for work.  She attended courses and was successful in obtaining driving licences for classes 1-5, allowing her to drive vehicles up to truck and trailer level.  She also gained a licence to work on a forklift.

[6]      She says on the day of the offending she was at home.  Staying with her were an 18 year old niece and a 16 year old nephew.  She was not expecting to go out at all that night.  In cross-examination she confirmed that she had drunk about a half of a box of beer and the high breath alcohol reading when she was tested suggests that she had consumed a significant amount of alcohol.  Ms M   allowed her niece and nephew to visit neighbours who lived just along the street.  However, just after

11.00 pm that night she received a telephone call from her niece in a distressed state. In the background of the call Ms M   could hear screaming and yelling.  Her niece told her she and the nephew were now at an address across Taupo.  Her niece was  frightened  because  the  neighbours  had  left  them  there  and  then  fights  had broken out.  She said that police had been called but had not come and she wanted Ms M   to collect them and bring them home.   Ms M   says in her affidavit that as she spoke to her niece, she sounded more and more distressed.

[7]      On cross-examination, Ms M   said that she did not telephone police to check if the police were attending at the address because she had no money on her cellphone to ring them.   For the same reason, she did not phone for a taxi.   She

initially claimed that she rang her sister, but then clarified on further questioning that she sent a text message to her sister to ask if she could help, but her sister was also out for the night.  She could not think who else to ring and so decided to drive across town to collect her niece and nephew.  She felt she had no choice as her niece was very distressed and she knew that the area they were in had a bad name.  She asked her next door neighbour to come and sit with her children.  Her next door neighbour could not drive, as he had no licence.

[8]      I have  information  before  me  on  the  file in  relation  to  Ms  M  ’s criminal record.  I consider this material for reasons I will come to shortly.  It shows that she has a number of previous convictions, however, the most recent of those was in April 1999.  There has therefore been a considerable period of time during which Ms M   has not offended.  In relation to the traffic offending which took her into the category of a third offence, the first two offences occurred in June 1988, the first on 23 June and the second on 29 June.

[9]      Mr Birks for Ms M   informs me that the effect of the sentence of disqualification for 12 months and one day is that Ms M   will have to re-sit all of the special licences that she has obtained through attending night school.

Relevant principles

[10]     Section 56(4) of the Land Transport Act 1998 sets out the penalty to be imposed on a third or subsequent conviction for a drink driving offence.  It does not differentiate between the age of the previous two offences, unlike other provisions in the Land Transport Act.  It stipulates:

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

[11]     Section 56(6) provides that s 56 is subject to s 81 of the Land Transport Act. Section 81 provides that the court must order the person to be disqualified for the minimum period “unless for special reasons relating to the offence it thinks fit to order otherwise”.

[12]     Section 81 is itself subject to s 94 which empowers the court to impose community based sentences in certain circumstances in substitution for an order of disqualification.  Section 94 provides in material part that

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.

[13]     In  Blake  v  Police  HC  NEL  T8/02  31  May  2002  Neazor  J  said  of  the relationship between ss 81 & 94:

If a person is required by some other provision (other than s 63) to be disqualified, then he or she must be, unless for special reasons relating to the offence the court decides not to make the order.   [s 81].   If there are no special reasons, so that the order must be made, attention can be turned to s 94 and the possibility of applying a community based sentence instead of disqualification if that is warranted by the criteria of s 94, including that the offender is someone who is entitled to apply for or hold a limited licence. Section 81 applies to relief by reference to a specific offence; s 94 to an alternative approach based on a much wider range of considerations.  Each addresses a different problem, and the two … and by their  wording be looked at separately.

[14]     In  Martin  v  Auckland  City  Council  HC  AK  M692/83  13  May  1983, Eichelbaum J:

The steps to be examined in determining the existence of special reasons are threefold.   (1) whether in law, particular circumstances are capable of constituting special reasons.  (2) If so, whether on the facts they are to be so regarded, and (3) whether the court should exercise its discretion to dispense with the minimum disqualification in whole or in part.

[15]     In Reddy  v Brown  [1951] NZLR 1040, it was said that the facts which constitute special reasons must be special to the facts which constitute the particular offence.

[16]     In Ministry of Transport v Hansen DC DUN 21 April 1988, Judge Willy said:

In  each  case  the  court  [has]  to  be  careful  to  examine  a  policy  of  the legislature and to take care to ensure that special reasons are not found to exist  which  conflict  with  the  policy  as  it  is  to  be  construed  from interpretation of relevant legislation.

Grounds of Appeal

[17]     In this case it is submitted that it is a “special reason” that a very lengthy period of time had elapsed since the two previous convictions for drink drinking.  In the circumstances Ms M   could not properly be called a recidivist drink driver.   The District Court Judge recognised in his sentencing notes that it was appropriate to deal with Ms M   effectively as a first offender.

[18]     In addition, it is contended for Ms M   that she had consumed alcohol because she had no expectation that she would have to drive her vehicle that night. It  transpired  however  that  she  had  no  choice  but  to  drive,  to  respond  to  the emergency created by her niece and nephew’s predicament.  The circumstances she became aware of gave her reason to believe they were in danger and that she needed to go and take them from that situation. She explored other alternatives to driving but could find no satisfactory solution.   She drove.   It is also said to be relevant that Ms M   was not driving in heavy traffic or in an area where there were high pedestrian numbers.  She was not exceeding the speed limit or driving other than in a sedate manner. Although the summary of facts refers to her having driven through a give way sign, there is no suggestion that created a hazard.  Her offending was not coupled with other serious driving or criminal offending which magnifies her culpability.

[19]     Although s 94 is also relied upon by Ms M  , I will deal first with the argument on the basis of s 81.

[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 M   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 M   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.

[21]     Because of the particular circumstances applying on the day, Ms M   was not legally represented and so this issue was not raised with the District Court Judge.  I am, however, entitled to take into account new information which is placed before me in considering a sentence appeal.

[22]     The  next  issue  is  whether  there  is  any  special  reason  which  justifies  a removal of all disqualification.  I have reached the view that there is not.  Although Ms M   was concerned regarding her niece and nephew, she knew that she had consumed a considerable amount of alcohol.  On her own evidence, she had to drive across Taupo to reach the address.   Although Ms M   may have been legitimately concerned about the circumstances in which her niece and nephew were placed, every possible alternative to drink driving should have been explored by her. My clear impression is that she did not take adequate steps to explore alternative solutions to the situation.  Ms M   was able to communicate with others by text.  She could have sent texts to others, or asked neighbours to phone the police. In every situation it will be a question of fact and degree as to whether or not the emergency is such that the court would regard it as special reasons in terms of s 81. In this case, I am not satisfied that it was.   This court does not lightly condone driving in situations where a person is over the maximum level of breath alcohol.

Section 94

[23]     I therefore turn to consider whether there is a special circumstance relating to Ms M   for the purposes of s 94.  The only special circumstance that Mr Birks could point me to was that the disqualification for 12 months and one day meant that she would have to re-sit her licences for driving particular vehicles.  However, if the

period of disqualification is reduced to six months, then that concern is met and there is therefore no necessity to further consider s 94.

Result

[24]     The appeal is allowed.  The disqualification period of 12 months and one day is quashed.  I substitute in its place a disqualification period of six months which will commence on the date that the initial sentence of disqualification commenced which was 3 December 2007.   The fine and order requiring Ms M   to pay court costs of $130 (and the schedule for payments) are confirmed.

Winkelmann J