Morgan v Police

[2013] NZHC 3431

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2013-485-000083 [2013] NZHC 3431

BETWEEN  ANDREW JOHN MORGAN Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:                   17 December 2013

Counsel:                  B A Crowley for Appellant

S A H Bishop for the Respondent

Judgment:                17 December 2013

Reasons:                  17 December 2013

REASONS FOR JUDGMENT OF COLLINS J

Introduction

[1]      The question I have to consider is whether the District Court made an error when it disqualified Mr Morgan from driving for six months after he was convicted of driving with excess breath alcohol.

[2]      Those who are convicted of driving with excess breath or blood alcohol face a mandatory period of disqualification of at least six months “unless for special reasons relating to the offence [the court] thinks fit to order otherwise”.1

Context

[3]      This  question  arises  in  the  context  of  an  appeal  by Mr  Morgan  from  a decision of Judge Harrop in the Wellington District Court.

1      Land Transport Act 1998, ss 56(3) and 81(1).

[4]      Mr Morgan pleaded guilty to charges of driving with excess breath alcohol and careless driving.   Judge Harrop convicted Mr Morgan on both charges and sentenced him to a six month period of disqualification and a fine of $400 plus court costs in relation to the excess breath alcohol charge.   No penalty was imposed in relation to the careless driving charge.

Background

[5]      On 21 September 2013, Mr Morgan attended a wedding with his former girlfriend.    In  an  affidavit  filed  in  the  District  Court  Mr  Morgan  said  that  he consumed no more than two glasses of wine at the reception.  He explained that he and his girlfriend took a taxi to where they lived in Grenada North.  Mr Morgan went to his girlfriend’s place for a short time and then drove his van to his place which is nearby.  Mr Morgan was not cross-examined on his affidavit.

[6]      At approximately 1.50 am on 22 September 2013, when he was driving to his home, Mr Morgan lost control of his van and in doing so veered off the road into a power pole, a small tree and a fence. The tree fell onto a car parked in a driveway.

[7]      Mr Morgan did not wait for the police at the scene.  He left and walked to his home which was a short distance away.  When he arrived home he started drinking Canadian Club Whisky.   When the police arrived at his home he was tested and found to have a breath alcohol level of 746 micrograms of alcohol per litre of breath. The legal limit for driving is 400 micrograms of alcohol per litre of breath.2

District Court decision

[8]      The reasons why Judge Harrop rejected Mr Morgan’s submission that there were special reasons relating to the offence which would otherwise justify him being allowed to continue to drive can be distilled to the following four points:

(1)First, Judge Harrop decided there was no proof from any other person as to how much Mr Morgan had to drink at the wedding reception and

what state he was in when he drove.  Judge Harrop said Mr Morgan’s

2      Section 56(1).

evidence about how much he had had to drink was “just” his “say so”.3

(2)Second,  the  fact  the  accident  occurred  on  a  road  with  which Mr Morgan was familiar and involved a collision with a power pole, tree and a fence indicated a significant degree of impairment.4

(3)Third, Mr Morgan failed to remain at the scene but instead went to his home and consumed whisky.5

(4)Fourth, the fact Mr Morgan did not comment on the accident to the police and did not explain why he departed the scene suggested he left the accident to escape the consequences knowing he had been drinking.6

[9]      In reaching these conclusions Judge Harrop held Mr Morgan’s breath alcohol level was above 400 micrograms but that it was likely to have been “considerably lower than 746” at the time he was driving.  For this reason Judge Harrop decided there were not special reasons relating to the offence, and imposed the minimum period of disqualification.

Grounds of appeal

[10]     First,  Mr  Morgan  re-litigates  his  submission  in  the  District  Court  that drinking after driving can be a special reason that justifies no period of disqualification being imposed.

[11]     Second, Mr Morgan’s unchallenged evidence in the District Court that he had been drinking whisky after driving provided a sufficient basis for him not to be

disqualified from driving.

3      Police v Morgan DC Wellington CRI-2013-085-10808, 20 November 2013 at [7].

4 At [8].

5 At [8].

6 At [9].

Test to be applied on appeal

[12]     Section 250 of the Criminal Procedure Act 2011 provides that I must allow the appeal if I am satisfied that “for any reason, there is an error in the sentence imposed”, and a different sentence should be imposed”.

[13]     A decision not to waive an otherwise mandatory period of disqualification from driving can involve both:

(1)       an assessment of fact and application of law in determining whether

“special reasons” exist; and

(2)the exercise of judicial discretion in making an order other than the mandatory disqualification.7

[14]     Thus, an appeal from a decision that makes an assessment of whether the circumstances  of  the  offending  constitute  “special  reasons”  is  subject  to  the standards of appeal articulated by the Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar.8   In this type of appeal:

(1)The appellate court must reach its own view on the merits of the appeal, bearing in mind.

(2)The appellant bears the onus of satisfying the appellate court that it should differ from the decision appealed from.

[15]     However, where the appeal focuses upon the way in which judicial discretion has been exercised, the test to be applied is that set out in May v May.9   In this type of appeal the appellant must show that the decision-maker:

(1)       made an error of principle;  or

7      Vaevae v Police HC Auckland CRI-2009-404-219, 31 August 2009.

8      Austin, Nicholls & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

9      May v May (1982) 1 NZFLR 165 (CA).

(2)failed to consider all relevant matters or took into account irrelevant matters;  or

(3)       reached a decision that was plainly wrong.

[16]     In the present case, both types of appeal were engaged because Mr Morgan appeals Judge Harrop’s finding in fact and law that there were not special reasons and the way Judge Harrop exercised his judicial discretion.

Were there special reasons?

[17]     A special circumstance is a mitigating or extenuating circumstance that does not constitute a defence to the charge, but is nevertheless sufficiently connected with the commission of the offence that it ought properly be taken into account when assessing the appropriate punishment.10    In this case, Mr Morgan has consistently maintained that his consumption of whisky after he had been driving meant that he was likely to be under the 400 microgram limit when he drove, and that was a

special reason.

[18]     Judge Harrop appears to have accepted that by drinking whisky after he arrived home Mr Morgan significantly increased his breath alcohol level, and he took this into account when imposing sentence.

[19]     However, Mr Morgan’s argument on this aspect of appeal is that in light of his unchallenged evidence that he had consumed just two glasses of wine prior to driving, his breath alcohol level would have been below 400.

[20]     Ms Bishop, counsel for the Crown, very properly accepted that if any person consumed just two glasses of wine over many hours before driving it would be highly  unlikely  that   they  would   have  a  breath   alcohol   level   that   exceeds

400 micrograms per litre of breath.

[21]     In my assessment Mr Morgan did discharge the onus of establishing on the balance of probabilities that his breath alcohol level was under 400 micrograms per

10     R v Cross [1939] NI 106.

litre of breath at the time he was driving.  His affidavit states “I am sure that I only had 2 glasses of wine that day before I drove.  Everything else I drank was after I crashed my van”.

[22]     The police would have been fully entitled to challenge the credibility of Mr Morgan’s explanation of how much he had to drink if the police had a basis for doing so.  The fact this evidence was unchallenged means, in the context of this case, it has to be accepted as a fact.   Judge Harrop was entitled to be suspicious and sceptical but he could not ignore the unchallenged facts about Mr Morgan’s consumption of alcohol before driving.

[23]     Accordingly, I am driven to the conclusion Judge Harrop erred as a matter of fact when he concluded Mr Morgan must have been driving with a breath alcohol level above 400 micrograms per litre of breath and that he had therefore failed to establish the existence of special reason.

How should the judicial discretion be exercised?

[24]     Judge Harrop’s exercise of his discretion was predicated on his conclusion

Mr  Morgan  was  driving  with  a  breath  alcohol  level  that  was  greater  than

400 micrograms.   In view of my finding that Judge Harrop approached this key factual  issue in  an  erroneous  manner  I will  approach  the discretionary exercise afresh.

[25]     In my assessment, the fact Mr Morgan was driving with a breath alcohol level below the legal limit is a special circumstance that justifies me in dispensing with the need for a period of disqualification in the unusual circumstances of this case.

Conclusion

[26]     I am satisfied that there was an error in the sentence imposed on Mr Morgan in the District Court and that a different sentence should be imposed.

[27]     The order that Mr Morgan be disqualified for a period of six months is quashed. All other orders made by the District Court are upheld.

D B Collins J

Solicitors:

Crown Solicitor, Wellington