Mitchell v Police
[2021] NZHC 1572
•29 June 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI 2021-404-208
[2021] NZHC 1572
BETWEEN NICHOLAS JAMES MITCHELL
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 28 June 2021 Appearances:
L Lai for the Appellant
W Fotherby and P Patanasiri for the Respondent
Judgment:
29 June 2021
JUDGMENT OF CAMPBELL J
This judgment was delivered by me on 29 June 2021 at 2:30 pm
Registrar/Deputy Registrar
MITCHELL v NEW ZEALAND POLICE [2021] NZHC 1572 [29 June 2021]
[1] Mr Mitchell pleaded guilty to a charge of driving with excess breath alcohol1 and a charge of careless driving.2 On the excess breath alcohol charge, Judge S Bonnar QC fined Mr Mitchell $750 and ordered an alcohol interlock sentence under s 65AC of the Land Transport Act 1998 (the Act). The general effect of that sentence was that Mr Mitchell was disqualified from driving for 28 days, after which he was permitted to drive only if he had an alcohol interlock device fitted to the vehicle he was driving.
On the careless driving charge, Mr Mitchell was convicted and discharged.3
[2] For the excess breath alcohol charge, Mr Mitchell submitted to the Judge that there were “special reasons” relating to the offence such that the Judge should exercise the discretion in s 81 of the Act not to impose disqualification. The Judge held there were no special reasons that triggered s 81. Mr Mitchell appeals that decision.
The offending
[3] At about 11.42 pm on 17 July 2020, Mr Mitchell was driving a car on Hukanui Crescent in Ponsonby. He rounded a corner and crashed into the back of a stationary car. The crash awoke nearby residents. Police were called. When they arrived, Mr Mitchell was found walking away from the car. He was spoken to by Police. He exhibited signs of recent alcohol intake. He admitted drinking prior to driving. An evidential breath test established Mr Mitchell’s breath alcohol level was 854 micrograms of alcohol per litre of breath. Mr Mitchell told the Police he had just come from a friend’s party on the North Shore.
Basis of submission that court not order disqualification
[4] At sentencing, counsel for Mr Mitchell submitted the Court should, under s 81, not order disqualification. Section 81 provides, in part:
81Mandatory disqualification: court’s discretion if special reasons relating to offence
(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
1 Land Transport Act 1998, s 56(1). Maximum penalty: three months’ imprisonment or a fine not exceeding $4,500 and disqualification for six months or more.
2 Land Transport Act 1998, s 37. Maximum penalty: fine not exceeding $3,000.
3 Police v Mitchell [2021] NZDC 9046.
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.
…
[5] Mr Mitchell made an affidavit to support his submission under s 81. In the affidavit he explained that in adulthood he was diagnosed with late autoimmune diabetes. A letter from his doctor said this was an uncommon form of diabetes that was difficult to manage, and that with Mr Mitchell’s current form of short-acting insulin his blood sugars can often “yo-yo and be potentially dangerous”.
[6] In his affidavit Mr Mitchell said that when his blood sugar level spikes he is often unable to think clearly. To address this, he uses a short-acting insulin. On the night of the offending he attended a party at Northcote Point. He said he consumed about six drinks. Mr Mitchell said he had intended to stay at a friend’s home nearby. However, he then realised he had run out of insulin. His blood level spiked up, and he said he had “no choice” but to drive home to retrieve his insulin and bring his blood levels back down.
[7] Mr Mitchell said he briefly considered other options such as calling for an Uber or a taxi. However, because it was late at night and he wanted to bring his blood sugar level down as soon as possible he did not think those options were plausible. He said he was conscious of the fact that he could be hospitalised if he did not address his blood sugar levels. There were also no sober drivers at the party. He therefore chose to drive to his home in Sunnyvale (which is in west Auckland).
District Court decision
[8] Judge Bonnar noted Mr Mitchell’s explanation for his conduct. He said that Mr Mitchell’s breath alcohol reading was very high, some three and a half times the legal limit. He observed that Mr Mitchell had not been released by Police until about
1.30 am after the offending, and that Mr Mitchell had not at any time mentioned to Police that he was lacking insulin or that he had driven because of a medical emergency (despite telling Police that he had come from a party and had been drinking).
[9] The Judge referred to some decisions on s 81 in the alcohol impairment context. He said that whether reasonable or possible available alternatives to drink driving have or could have been explored will often be a factor of considerable significance. When a sudden onset of illness or some other emergency may require an intoxicated person to drive, “the decision to do so must nevertheless be objectively reasonable. Where all reasonable or possible alternatives are not explored it is unlikely that special reasons will be found.”4
[10] Even allowing for Mr Mitchell’s medical condition, the Judge did not consider Mr Mitchell’s actions were objectively reasonable. Mr Mitchell was in Northcote Point, a central suburb of Auckland. There were readily available alternatives to driving, such as taxi services or Uber drivers. Mr Mitchell’s decision to drive was, on his own evidence, a product of some rational thought. The Judge was not satisfied that Mr Mitchell’s decision-making process was objectively reasonable in all the circumstances. There were no special reasons relating to the offence which justified not making an order for disqualification.5
Submissions on appeal
[11] On behalf of Mr Mitchell, Mr Lai submitted that the Judge did not give sufficient weight to the uncommon and difficult to manage medical condition from which Mr Mitchell suffers. Given those circumstances, it was objectively reasonable for Mr Mitchell, having briefly explored available alternatives, to decide to drive home. While Mr Lai accepted that Northcote Point is not a remote area, he noted it is a suburban area, and there would have been some delay in waiting for a taxi or an Uber service. This made Mr Mitchell’s decision to drive objectively reasonable.
[12] Mr Lai referred me to Williams v Police, in which Lang J cautioned against using hindsight to “place an extremely high standard on an offender who has made a decision that was forced upon him or her under circumstances of pressure”.6 Mr Lai submitted that the Judge had assessed Mr Mitchell’s decision-making using hindsight,
4 At [19].
5 At [21].
6 Williams v Police, CRI-2007-488-000068, 12 December 2007.
by taking into account that Mr Mitchell did not become seriously ill while in Police custody.
[13] Mr Patanasiri delivered the oral submissions for the Police. He submitted the Judge was right to find no special reasons under s 81. Mr Mitchell had not explored reasonable alternatives that were open to him: a taxi or ride-share service, or attending a nearby emergency medical centre to address his blood sugar levels. Additionally, he submitted that even if there were special reasons, the discretion under s 81 should not be exercised, given Mr Mitchell’s high breath alcohol reading and that he had collided with a stationary car.
Decision
[14] One of the cases on which Judge Bonnar relied (and which both parties cited to me) was Anderson v Police. Wylie J considered what might constitute “special reasons” under s 81 which warrant not imposing a period of disqualification. He said:7
[15] Special reasons “embrace only factors of particular or exceptional character”. … The special reason must be of a sufficiently compelling nature to justify a departure from the usual consequences. …
[16] A Court will not lightly find that there are special reasons in the alcohol impairment context. Whether reasonable or possible available alternatives to drink driving have or could have been explored, will often be a factor of considerable importance. When a sudden onset of illness or some other emergency may require an intoxicated person to drive, the decision to do so must nevertheless be objectively reasonable. Where all reasonable or possible alternatives are not explored, it is unlikely that special reasons will be found.
…
[21] Whether reasonable or possible alternatives to drink driving have been fully explored goes to the issue of whether or not there are special reasons pursuant to s 81. …
[15] I am of the clear view that Mr Mitchell’s decision to drive was not objectively reasonable. This is because Mr Mitchell did not explore all reasonable or possible alternatives to his driving. The obvious and reasonable alternative was to call for a taxi or an Uber to take him home. Mr Mitchell deposed that he “briefly considered”
7 Anderson v Police [2016] NZHC 942.
those options, but because he wanted to get his blood sugar level down as quickly as possible, he did not think those options were plausible. Mr Mitchell did not call either a taxi or an Uber, so he had no reasonable basis for making any assumption about any delay that might have occurred with either service. His decision not to use those options, in the absence of any evidence that there would have been any undue delay with them, was not reasonable. This is very different from Williams v Police, where there was evidence of a considerable delay in any available taxi service.
[16] Another alternative that Mr Mitchell could have explored was to call for a taxi or Uber to take him to a nearby medical centre. There are 24-hour medical centres within a little over three kilometres of Northcote Point, whereas Mr Mitchell’s home in Sunnyvale is about 24 kilometres away. Mr Mitchell says nothing about whether he considered that option.
[17] Moreover, the reasonableness of those alternatives needs to be assessed in light of the route that Mr Mitchell chose to drive. Despite saying that he wanted to bring his blood sugar level down as quickly as possible, Mr Mitchell did not drive on what would usually be the quickest route to his home in Sunnyvale. The quickest route would have involved Mr Mitchell remaining on the motorway system through central Auckland and then on to the north western motorway. Instead, Mr Mitchell appears to have left the motorway after crossing the Harbour Bridge, and travelled through Ponsonby. Mr Mitchell did not provide any explanation for that.
[18] For these reasons I agree with Judge Bonnar that Mr Mitchell’s decision to drive was not objectively reasonable, so that there were no special reasons under s 81.
Result
[19]The appeal is dismissed.
Campbell J