Mitchell v Police - [2021] NZHC 1572

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.

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 Mitchell v Police

Details

AGLC: Mitchell v Police [2021] NZHC 1572
Case: [2021] NZHC 1572
Decision Date: 29 June 2021

CaseChat Overview and Summary

The case of Mitchell v Police was heard in the High Court of New Zealand. Mr Mitchell appealed against the decision of Judge Bonnar QC, who had imposed an alcohol interlock sentence for a charge of driving with excess breath alcohol. Mr Mitchell argued that there were "special reasons" under s 81 of the Land Transport Act 1998 which warranted the Judge not imposing disqualification. The High Court was required to determine whether the District Court had erred in concluding that there were no special reasons that triggered s 81.

The court considered the evidence and submissions from both parties. The court found that Mr Mitchell's decision to drive was not objectively reasonable, as he had not explored all reasonable or possible alternatives to his driving, such as calling for a taxi or Uber to take him home or to a nearby medical centre. The court also noted that Mr Mitchell did not drive on what would usually be the quickest route to his home. For these reasons, the court concluded that there were no special reasons under s 81.

The appeal was dismissed, and the decision of the District Court was upheld.

Orders