Mallinder v Police HC Invercargill CRI-2011-425-000030

[2011] NZHC 953

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2011-425-000030

MICHAEL ALEXANDER MALLINDER

Appellant

v

POLICE

Respondent

Hearing:         30 August 2011

Appearances: JAT Ross for Appellant

M Mika for Respondent

Judgment:      30 August 2011

ORAL JUDGMENT OF HON JUSTICE FRENCH

[1]      This is an appeal against sentence.

[2]      Following pleas of guilty, the appellant, Mr Mallinder, was convicted in the

District Court on three charges:

(i)       Driving with excess breath alcohol

(ii)      Careless driving.

(iii)     Failing to stop for a police officer in breach of s 114(2) of the

Land Transport Act 1998.

MALLINDER V POLICE HC INV CRI-2011-425-000030 30 August 2011

[3]      A District Court Judge sentenced him to 130 hours’ community work, ten months’ disqualification and nine months’ supervision in respect of the drink driving charge.   On the careless driving, Mr Mallinder was disqualified for a four-month period, being concurrent on the ten-month disqualification period.

[4]      On the charge of failing to stop, he was convicted and disqualified for three months, commencing on the expiry date of the ten-month period, ie the three months was cumulative.

[5]      It is this latter ruling – the imposition of a cumulative period – that is the focus of the appeal.

Facts of the offending

[6]      The summary of facts to which Mr Mallinder pleaded guilty describes the facts of the offending as follows.

[7]      At about 9.25 a.m. on 5 June 2011 Mr Mallinder was driving an associate’s

car on Arthur Street in Invercargill.  He approached a stationary patrol vehicle.

[8]      The officer activated the front red and blue flashing lights and stepped out from the patrol vehicle, signalling the appellant to stop.   Mr Mallinder continued passed the officer, who stepped out of the way.   The officer continued to signal Mr Mallinder to stop, also yelling at him to do so.

[9]      The defendant turned left into Dee Street, through a give way sign at the intersection.  He was pursued by police, with lights and siren activated.  He turned into Louisa Street and attempted to pull into a resident’s driveway, but in doing so he skidded, mounted the kerb and nearly hit a tree on the grass verge.

[10]     Mr Mallinder was arrested and found to be heavily intoxicated.   A breath screening test was positive and a subsequent evidential breath test gave a positive result of 778 micrograms of alcohol.  As a result, Mr Mallinder’s driver licence was suspended and the vehicle impounded.

[11]     In explanation, Mr Mallinder said he had been drinking non-stop for the last three days and had little sleep.   He had three associates with him at the time and none  of  the  occupants  were  wearing  seat  belts.    The  appellant  stated  he  was intending to drive to Queenstown on a “mission” for a party.

[12]     Mr Mallinder is only 20 years of age.   He has one previous conviction for drink driving, the blood/breath level on that occasion being 861.  That offence was committed on 8 October 2010.

District Court sentencing

[13]     In  his  sentencing  notes,  the  Judge  described  the  current  offending  as “atrocious behaviour”, and Mr Mallinder as the type of person who is a danger to other road users.

[14]     The Judge noted the previous conviction, and gave Mr Mallinder a final warning that if he were to offend again, he would be facing a custodial sentence.

[15]     The Judge then imposed the sentences I have mentioned, stating in regards to the charge of failing to stop:

[4]       On  the  charge  of  failing  [to]  stop  for  a  police  officer,  you  are convicted.  You are disqualified from holding or obtaining a driver’s licence. As I am required to do, the disqualification for three months commences on

24 April 2012.

Grounds of appeal

[16]     On appeal, counsel Mr Ross submits two grounds of appeal:

(i)That the Judge erred in law by ordering a cumulative period of disqualification when the statutory pre-requisites for such an order were not satisfied.

(ii)The Judge breached the rules of natural justice by failing to inform counsel he was contemplating imposing a cumulative

period of disqualification, thereby denying Mr Mallinder the opportunity to present submissions on that issue.

[17]     In imposing a cumulative period of disqualification it is clear the Judge was relying on s 52(3) of the Land Transport Act. That subsection states:

3)If a person is convicted of an offence against section 114 and has previously  been  convicted  of  an  offence  against  section  114  or, while failing to comply with section 114, exceeded the applicable speed limit or operated a motor vehicle in an otherwise dangerous manner,  a  court  must  order  the  person  to  be  disqualified  from holding or obtaining a driver licence for 3 months.

[18]     Mr Mallinder had not previously been convicted of an offence against s 114. The summary of facts is also silent as to the speed.  It follows that the only basis on which the Judge could impose a cumulative period of disqualification was if the Judge  was  satisfied  Mr  Mallinder  was  operating  the  vehicle  in  an  otherwise dangerous manner.

[19]     Mr Ross argues that there is nothing in the summary of facts which would justify a determination of dangerous driving (driving in a manner which having regard to all the circumstances was or might be dangerous to others) as opposed to careless driving.  He submitted that this was not a high-speed police chase.  There was no evidence of Mr Mallinder swerving or driving at an excessive speed.

[20]     For their part,  the police accept  that  the skid  and  mounting of the kerb qualifies only as careless driving.  However, counsel Mr Mika argues that there was nevertheless sufficient information in the summary of facts to constitute dangerous driving because of the following:

(a)       the high level of excess blood alcohol;

(b)the failure to stop for an officer who had activated the red and blue flashing police lights and had to step out of the way as Mr Mallinder drove past;

(c)       the presence of three passengers;

(d)      the intention to drive to Queenstown for a party.

Discussion

[21]     The first point I would make is that what the information alleged was:

You failed to comply with a lawful requirement given to you under s 114(2) of the Land Transport Act 1998 by an enforcement officer in that you, being the driver of a vehicle and being followed by a motor vehicle displaying flashing blue and red lights or sounding a siren, failed to stop.

[22]     It follows that the focus of the dangerousness assessment must be on the driving that took place while Mr Mallinder was being pursued by the police vehicle, not when the officer had to step aside.

[23]     The second point I would make is that whether driving is dangerous is to be judged objectively.1     It is not necessary to identify a single dangerous act.   The finding can be based on an inference from proven facts where the inference is so strong as to admit no other conclusion.2    Further, while intoxication is not by itself sufficient to amount to dangerous driving, it is a relevant factor that can be taken into account in the overall assessment.3

[24]     In this case, the summary of facts discloses the following situation.  We have a heavily intoxicated driver at almost twice the legal limit who has been on a three- day drinking binge, who has had little sleep and who is trying to elude police.  He is driving in a residential area at 9.15 in the morning, albeit on a Sunday, and has three passengers on board, none of whom are wearing their seat belts (which is, at least in part, a driver responsibility).

[25]     In my assessment, looking at the overall situation, the circumstances did justify the District Court Judge in finding that Mr Mallinder was driving in an otherwise dangerous manner when being pursued by the police vehicle.

[26]     I do not therefore accept the first ground of appeal.

1      R v Evans [1962] 3 All ER 1086.

2      Stratford v MOT [1992] 1 NZLR 486.

3      Brookers Law of Transportation (online edition) LT7.13.

[27]     As for the second ground of appeal, Mr Ross responsibly conceded that this was the weaker of his two grounds.   He was unable to find any authority for the proposition that the Judge was obliged to notify counsel that s 52(3) was an issue.  In any event, Mr Mallinder had pleaded guilty to a charge under s 52(1)(c), while the summary of facts specifically states that disqualification may follow.   In those circumstances, Mr Mallinder was, in my view, clearly put on notice that he was in

jeopardy of being disqualified under s 52.4

[28]     In any event, even if I did consider there had been a breach of natural justice, and were required to consider the matter afresh myself, for the reasons I have already articulated, I would independently find that the driving was dangerous.

[29]     It follows from all of the above that I consider the appeal should be dismissed and the decision of the District Court Judge upheld.

[30]     I so rule.

Solicitors:

Scholefield Cockroft Lloyd, Invercargill

Crown Solicitor’s Office, Invercargill

4      There is no dispute that Mr Ross was given an opportunity to make a plea in mitigation before the sentence was imposed.