Mail v Police - [2012] NZHC 3049

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2012-419-68 [2012] NZHC 3049

ELISE ELIZABETH MAIL
Appellant
v

NEW ZEALAND POLICE
Respondent

Hearing: 8 and 15 November 2012

Counsel: L Walkington for Appellant
R Annandale for Respondent

Judgment: 15 November 2012

(ORAL) JUDGMENT OF LANG J [on appeal against sentence]

ELISE ELIZABETH MAIL V NEW ZEALAND POLICE HC HAM CRI-2012-419-68 [15 November 2012]

[1] Ms Mail pleaded guilty in the District Court to charges whilst disqualified (aggravated),[1] and driving a motor vehicle whilst the proportion of alcohol in her breath exceeded 400 micrograms of alcohol per litre of breath.[2]

[1] Land Transport Act 1998, s 32(4).

[2] Ibid, s 56(1).

[2] On 25 September 2012, Judge Cocurullo convicted Ms Mail and sentenced her to concurrent sentences of 18 months supervision with special conditions.[3] He also disqualified her from holding or obtaining a driver’s licence for a period of one year and one day from that date. Ms Mail appeals to this Court solely against the Judge’s decision to disqualify her from driving.

Facts

[3] Police v Mail DC Hamilton CRI-2012-019-003194, 25 September 2012.

[3] On 29 August 2011, Ms Mail was disqualified from holding or obtaining a driving licence for a period of one year and seven days commencing on that date. At approximately 3.15 am on Sunday 12 May 2012, she was driving a motor vehicle along Victoria Street, Hamilton. She arrived at a police checkpoint, and breath test procedures were carried out. These returned a positive reading of 538 micrograms of alcohol per litre of breath. When Ms Mail arrived at the checkpoint, she had a female passenger in her vehicle. She told the police that the passenger was “more of a mess than her”, and that the passenger was also disqualified from driving.

[4] This is not the first occasion on which Ms Mail has been convicted of driving whilst disqualified, or driving whilst the holder of a revoked or expired licence. She has one previous conviction for driving whilst disqualified, and two previous convictions for driving whilst her licence was suspended or revoked.

The hearing in the District Court

[5] A period of disqualification is ordinarily mandatory on the charges to which

Ms Mail had pleaded guilty.[4] At the hearing in the District Court, however, Ms Mail

sought to persuade the Judge that he should exercise his discretion under s 81 of the

Land Transport Act 1998 (“the Act”) and not disqualify her from driving.

[4] Land Transport Act 1998, s 32(4)(b) and s 56(3)(b).

[6] Before a court can exercise its discretion under s 81, it must find there are “special reasons relating to the offence” that justify taking that course. Ms Mail did not place affidavit evidence before the Judge, and instead relied on oral submissions by her counsel. In addition, the Judge had the benefit of a report from a psychologist that had been prepared pursuant to s 38(2)(a) of the Criminal Procedure (Mentally Impaired) Persons Act 2003.

[7] The report described in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mail v Police

Details

AGLC: Mail v Police [2012] NZHC 3049
Case: [2012] NZHC 3049
Decision Date: 15 November 2012

CaseChat Overview and Summary

In Mail v Police, the appellant, Elise Elizabeth Mail, challenged the decision of the District Court to disqualify her from driving. Ms Mail was convicted for driving while disqualified and under the influence of alcohol. She appealed against the disqualification, arguing there were special reasons under the Land Transport Act 1998 to warrant a departure from the mandatory disqualification. The key issue before the High Court was whether the District Court correctly exercised its discretion under section 81 of the Act. The court considered Ms Mail's severe obsessive compulsive disorder and the circumstances surrounding her offending, but ultimately found no link between her disorder and her decision to drive while disqualified. The court held that without a connection between her disorder and the offending, the District Court was correct not to exercise its discretion in her favour. The appeal was dismissed, and the disqualification stood.

The High Court's judgment emphasised that while personal characteristics may influence an offender's actions, they must have a direct link to the offence for the court to consider them under section 81. Ms Mail's disorder, while severe, did not connect to her decision to drive while disqualified. The court's decision highlighted the need for a clear connection between the special circumstances and the offence for discretion to be exercised.

Orders