M v Police HC Rotorua CRI 2009-463-65

[2009] NZHC 2608

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2009-463-65

BETWEEN  M

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         7 December 2009

Appearances: Tom Mounsey for Appellant

Sarah-Louise Wootton for Respondent

Judgment:      22 December 2009

JUDGMENT OF HARRISON J

In accordance with R11.5 I direct that the Registrar endorse this judgment with the delivery time of

2:30 pm on 22 December 2009

SOLICITORS

Malcolm Mounsey Clarke (Taupo) for Appellant

Gordon Pilditch (Rotorua) for Respondent

M V POLICE HC ROT CRI 2009-463-65  22 December 2009

Introduction

[1]      Mr  M    appeals  against  a  sentence  of  disqualification  for  a period of one year and one day following his conviction in the District Court at Taupo on 15 July 2009 on two charges of driving with excess blood alcohol on a third or subsequent occasion.

[2]      Mr M   does not appeal against a concurrent sentence of four months community detention with a 12 hour daily curfew.

Facts

[3]      The  first  offence  occurred  at  about  3.40 am  on  1 January  2009  when Mr M   was driving a motor vehicle in Thames.  He was stopped by the police for the purposes of a mobile breath test.   An ESR analysis disclosed a reading of

186 milligrams of alcohol per 100 millilitres of blood.

[4]      By way of background, Mr M   and his partner had been drinking at a local hotel from 5 pm the previous day.  The couple had arranged to stay a night at a local motel even though they resided in Thames.   Mr M  's partner decided that she wanted to leave as she was scheduled to start work at 9 am on 1 January.  An argument ensued.   Mr M   followed her home in his car, a relatively short distance, when he was breath tested.

[5]      The  second  offence  occurred  at  about  midnight  on  5 March  2009  when Mr M   was driving the same vehicle elsewhere in Thames.   Again he was stopped by the police for the purpose of a mobile breath test.   An ESR analysis disclosed a reading of 137 milligrams of alcohol per 100 millilitres of blood.

[6]      On this occasion Mr M   said that he had parked his vehicle outside the hotel where his partner was working as a bar manager.   His usual practice was to drive to the hotel in order to wait for his partner to finish work.   She would then drive home.  However, while waiting for her, Mr M   decided to move his car

to the back of the hotel to avoid the danger of vandalism.  He was apprehended in the hotel car park.

[7]      Mr M   has an extensive previous criminal history.  He has convictions for drink driving in 1989, 1991 (x2), 1992 (x2), 1993 and 1997.  All were dealt with by way of a range of sentences.  He also has numerous criminal convictions for other offending, some of it serious.

District Court

[8]      Judge  Maze  considered  carefully  the  arguments  advanced  by  Mr Tom Mounsey, who appeared for Mr M   in the District Court and on appeal, in an effort to spare Mr M   what might have been assumed to be the inevitability of disqualification.    The  Judge  rejected  Mr Mounsey's  argument  that  a  community based sentence should be imposed instead of disqualification or with reduced disqualification.

[9]      In the event Judge Maze considered that a sentence of community detention was  appropriate.    On  each  charge  of  driving  while  disqualified  she  sentenced Mr M   to four months community detention.   While satisfied that a longer period of disqualification would normally have been appropriate to recognise the various aggravating features of Mr M  's offending, the Judge imposed the minimum period of disqualification of 12 months and one day in recognition of the circumstances of his offending and other mitigating factors.  She also made an order for confiscation of the motor vehicle.

Decision

[10]     In well presented submissions in this Court, Mr Mounsey was careful to confine the scope of Mr M  's appeal to the Judge's order for disqualification. He accepts that the sentence of community detention cannot be challenged as being clearly excessive or inappropriate.  Moreover, he acknowledges that the sentence of disqualification was the minimum statutory period: s 56 Land Transport Act 1998.

Nevertheless, Mr Mounsey submits that the Judge erred in law in applying ss 81 and

94.

[11]     Section 81 provides:

(1)       If any provision of this Act (other than section 63) requires a court to disqualify a person from holding or obtaining a driver licence or transport service licence for a period not less than the specified minimum period, the court  must  order  that  the  person  be  disqualified  accordingly  unless  for special reasons relating to the offence it thinks fit to order otherwise.

(2)       Nothing in any provision referred to in subsection (1) or in section

65 restricts any other duty or power of the court to disqualify a person from holding or obtaining a driver licence or transport service licence or to impose any other penalty.

(3)       This section is subject to section 94 (which relates to community- based sentences).

[12] Mr Mounsey's primary submission is that Judge Maze erred in finding that "special reasons relating to the offence" did not exist for the second offence. He submits that she wrongfully concluded that driving "… a short distance in itself cannot be a special reason in itself in those particular circumstances": at [13].

[13]     Mr Mounsey submits that, when all circumstances are considered, it cannot be said that Mr M  's offending was ordinary or common or usual.  Thus, he says,  it  follows  that  if  the  circumstances  of  the  offending  are  not  ordinary  or common or usual, special reasons exist: Basile v Atwill [1995] 2 NZLR 537 (CA) at

539.  Among the relevant factors, he submits, in determining whether special reasons exist are the distance the vehicle was driven; the manner of its driving; the state of the vehicle; whether the driver intended to drive further; the prevailing road and traffic conditions; whether there was any possibility of danger by contact with other road users; and the reason for the vehicle being driven at all.

[14] I am not satisfied that Judge Maze erred. She accepted that in some circumstances driving a motor vehicle for a short distance can constitute a special reason. But it is plain that she took into account other circumstances relating to the offence. In particular, she gave weight, as she was entitled, to Mr M 's failure to request either the person who warned him to remove the vehicle or someone else in the bar who was capable of driving to drive the vehicle: at [12]. In other words,

the  Judge  was  not  satisfied  that  it  was  necessary  or  even  appropriate  for Mr M   to drive the vehicle, especially in view of his heightened appreciation of the risk given that he was then on bail for his offending two months earlier.

[15]     In this respect Mr Mounsey's submission that the Judge gave inappropriate weight to a factor relating to the offender - that he was on bail for a previous offence

- is incorrect; she simply noted that factor for the proper purpose of identifying the risk which Mr M knew he was running in deciding to drive the car, even for a short distance. This was the "particular circumstance", to which the Judge expressly referred in rejecting Mr Mounsey's argument: at [13].

[16]     While Mr Mounsey is correct that it was open to the Court to find that special reasons  existed,  the  Judge  was  exercising  a  discretionary  power  and  I  am  not satisfied that she gave inappropriate weight to a relevant factor.  Moreover, I do not accept Mr Mounsey's submission that special reasons exist if the circumstances of the offence are not ordinary or common or usual.  The statutory message is plain.  A Judge is bound to disqualify for the specified minimum period "unless for  special reasons relating to the offence [he or she] thinks fit to order otherwise".   In my judgment it is insufficient, as Judge Maze concluded, simply to rely on the physical factor of driving for a short distance to invoke an exception to a mandatory prohibition.  The threshold is high and other factors may be relevant, and the Judge was entitled to find that Mr M  's case did not satisfy it.

[17]     It is thus unnecessary to consider Mr Mounsey's second submission, based on s 94,  that  Judge  Maze  erred  in  exercising  her  statutory  discretion  not  to  order Mr M  's disqualification from driving on the first offence.  That is because, by virtue of s 103(2)(d), Mr M   was barred from obtaining a limited licence following his sentence of disqualification on the second offence in March 2009; the first  offence  in  January  2009  constituted  an  offence  against  s 56  which  was committed within five years before the second offence.  Mr M  's motivation in pursuing this appeal is to secure at least a limited licence to enable him to take employment as a driver.  The s 94 argument is thus of academic importance.  I add, though, my satisfaction  that Judge Maze did  not err in  exercising her statutory discretion.

[18]     I have some sympathy for Mr M  's position.  He is anxious to resume work as a professional driver, thus freeing the State of the burden of supporting a beneficiary.    Employment  is  now  apparently  available  with  a  contractor  in  the Raglan area.  However, in acting in an appellate capacity, I am unable to interfere with a sentence imposed in the District Court which is not shown to be manifestly excessive or wrong in principle.   In any event, I understand that Mr M  's disqualification will effectively end in late March 2010.

[19]     Accordingly,   despite   Mr   Mounsey's   careful   arguments   in   support, Mr M  's appeal against sentence is dismissed.

Rhys Harrison J