McNab v Police

[2014] NZHC 1493

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2014-419-6 [2014] NZHC 1493

BETWEEN

JUSTIN COLIN McNAB

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	30 June 2014
Counsel:	L S Caley for Appellant T C Tran for Respondent
Judgment:	1 July 2014

JUDGMENT OF GODDARD J

This judgment was delivered by me on 1 July 2014

at 3.00 pm, pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Crown Solicitors Office, Hamilton for Respondent

McNAB v NEW ZEALAND POLICE [2014] NZHC 1493 [1 July 2014]

Introduction

[1]      This is an appeal against sentence.   On 20 January 2014 the appellant was convicted and sentenced in relation to a charge of driving with excess breath alcohol (third and subsequent).  Judge Spear imposed a fine of $2,000.00 and disqualified the appellant from holding or obtaining a driver’s licence for two years.

Facts

[2]      On 6 September the appellant was driving a motorbike when he was stopped by police and breath tested.   His breath was found to contain 522 micrograms of alcohol per litre of breath.

[3]      The appellant has previously been convicted on two charges of excess breath alcohol. The last of these convictions was entered on 14 December 2004.

District Court decision

[4]      Judge Spear noted the following factors in sentencing the appellant: (a)        the time since his last conviction of this kind;

(b)      the appellant’s current employment;

(c)       the appellant’s actions in disposing of his motorbike and contacting

Care New Zealand about an alcohol and drug assessment; and

(d)      the appellant’s guilty plea.

Legislation

[5]      Section 56(1) of the Land Transport Act 1988 provides that it is an offence to drive or attempt to drive a vehicle on a road with a breath alcohol level exceeding

400 micrograms of alcohol per litre of breath.   Section 56(4) provides that the maximum penalty for a person convicted of a third or subsequent offence against subsection (1) is two years’ imprisonment or a fine not exceeding $6,000.  The Court

must order the person to be disqualified from holding or obtaining a driver licence for more than one year.

[6]      Section 83 provides that a person disqualified for more than one year must re-apply for a licence.  The combined effect of s 56(4) and s 83 is that any person convicted of a third or subsequent offence against s 56(1) will always be required to re-apply for a licence at the expiry of the term of disqualification imposed by the Court.

Approach on appeal

[7]      Section 250 of the Criminal Procedure Act 2011 applies.  The appeal must be allowed if the Court is satisfied that, for any reason, there is an error in the sentence imposed on conviction and a different sentence should be imposed.

[8]      Not every error in a sentence will provide the foundations for a successful appeal.  The types of error contemplated by s 250(2)(a) include, but are not limited to, errors of law; failing to take account of or not giving sufficient weight to relevant factors; taking account of irrelevant factors; and committing an error of principle, such as adopting a starting point that is disproportionately high.

[9]      A different sentence should be imposed when the appellate court believes a different sentence should be imposed, or the length of the sentence should be altered, but not in a way that amounts to a minor adjustment.

Submissions

[10]     The appellant accepts that a comparatively longer period of disqualification can be countenanced where the offender is subject to a monetary penalty rather than a  custodial  sentence,1   but  submits  that  in  the  circumstances  of  this  case,  the substantial amount of the fine eliminated the need to increase the period of disqualification from the prescribed minimum.

[11]     The argument is that a lesser period of disqualification is appropriate in light of s 65 of the Land Transport Act 1998.  Section 65(4) applies to a person convicted of a third or subsequent drunk driving offence where the two or more previous offences were committed within five years of the date of the commission of the offence before the Court.  Under s 65(4), the Court must make an order requiring a person to attend an assessment centre and disqualifying the person from holding or obtaining a drivers licence until the Agency removes that disqualification under s 100.  In effect, the person is disqualified indefinitely from driving until the Agency removes the disqualification following an application under s 100.   Section 100 applications can only be made after one year and one day.

[12]     The argument is that the two year disqualification imposed by the Judge is inconsistent with this regime and is more severe than an indefinite disqualification under s 65, which would allow the appellant to apply for a licence under s 100 after one year and one day.  Section 65, it is said, is intended for more serious offending, that is, repeat offending within a shorter period of time.

[13]     For the respondent, Mr Tran submitted that the sentence imposed was stern but within range, referring to Blackler v Police, in which Ellen France J upheld a two year disqualification in similar circumstances.2     Twenty years had elapsed since Mr Blacker’s two previous convictions for drunk driving.  His breath had an alcohol level of 765 micrograms.  Similarly, in Fraser v Police, Ellen France J indicated that a period of two years disqualification for a third offence was appropriate.3    In that case, the previous similar offending took place in 1977 and 1989 and the breath alcohol level was 588 micrograms.

Discussion

[14]     Part of the difficulty with the issue on appeal in this case is that the period of disqualification  was   apparently  not  addressed  in   the  District  Court.     Thus Judge Spear did not have the benefit of any submissions in relation to it.  Rather, the focus was entirely directed to the imposition of a fine, rather than the imposition of a community  based  sentence.     The  anxiety  in  relation  to  the  imposition  of  a

community based sentence arose from the fact Mr McNab is an arborist and often works on Saturdays, so that a community based sentence would interfere with his ability to work at the weekends.

[15]     There having been no submissions directed to the period of disqualification, Judge Spear simply imposed a term of two years’ disqualification without giving any reasons.

[16]     While it cannot be said that there has been an error by the sentencing Judge, in the absence of the issue of length of disqualification having been addressed at first instance or any reasons given for the period of disqualification imposed, it seems appropriate to view it afresh.

[17]     There is no maximum period of disqualification provided for under s 56(4), although Parliament clearly contemplated disqualification of more than one year and one day.

[18]     Regardless of the length of disqualification and whether it be one year and one day, or two years, the important factor is that an offender is required to apply for the return of their licence as per s 83 of the Land Transport Act.  The consequence is that, on application, the offender may be required to complete approved courses, tests and examinations to ensure safety on the roads.  As Mr Caley submitted, the secondary effect of a one year and one day disqualification also means that an offender is disqualified until an application is made for reinstatement under s 83.

[19]     Standing back and looking at the matter afresh, I am satisfied that a period of disqualification of one year and one day is appropriate in the appellant’s case.  My reasons for reaching this conclusion are: the appellant’s prior convictions for excess alcohol related offences were in 2004; the level of excess breath alcohol was 522 micrograms rather than being excessively high; the amount of the fine was appropriately condign and the appellant is currently paying it off; the important aspect of disqualification is that the appellant is required to reapply for his licence and  this  is  of  greater  importance  than  the  length  of  the  disqualification;  and  a two-year minimum period of disqualification will impose difficulties for him.

Conclusion

[20]     The appeal is allowed in respect of the length of disqualification only.  The period of disqualification of two years is quashed and a period of one year and one days’ disqualification imposed in lieu.

Goddard J