Mortensen v Police

[2013] NZHC 85

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2012-454-35 [2013] NZHC 85

BETWEEN  MARIAN MORTENSEN Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         5 February 2013

Counsel:         S N Hewson for Appellant

P L Murray for Respondent

Judgment:      7 February 2013

In accordance with r 11.5 I direct that the delivery time of this judgment is 3.30pm on the 7th day of February 2013.

RESERVED JUDGMENT OF MACKENZIE J

[1]      On 5 October 2012 the appellant, who lives in Wellington, travelled to Levin to meet a friend for dinner.  She arranged to stay at a motel in Levin overnight.  She drove to the restaurant.  After dinner, at about 11pm while driving to the motel, she performed a U-turn manoeuvre over a raised traffic island in front of a marked patrol vehicle.   She was stopped, a breath test was administered and a reading of 947 micrograms of alcohol per litre of breath was recorded.   Her driver’s licence was suspended for 28 days.

[2]      She later arranged for her daughter to uplift her car from Levin and return it to Wellington.  The daughter left it parked on the street, in a restricted parking area. At  9.15 am  on  Saturday 15 October 2012,  the appellant  was  driving the vehicle

home from where it was parked when she was stopped by a police officer.

MORTENSEN V NEW ZEALAND POLICE HC PMN CRI-2012-454-35 [7 February 2013]

[3]      The   appellant   pleaded   guilty   in   the   District   Court   at   Levin   on

7 November 2012 to a charge of driving with excess breath alcohol and to a charge of driving while suspended.   Those pleas were entered at an early stage.   On the excess breath alcohol charge she was convicted and fined $750 plus costs and disqualified  from  driving  for  eight  months.    On  the  charge  of  driving  while suspended she was fined $250 and costs.   The minimum statutory period of disqualification of six months was imposed, to commence on the expiry of the eight month disqualification.

[4]     The appellant appeals against her sentence.   She submits that the total disqualification  period  of  14 months  was  manifestly excessive.    The  essence  of Mr Hewson’s submission is that a total period of disqualification of 14 months is manifestly  excessive  for  what  were,  in  his  submission,  essentially  errors  of judgment.

[5]      Viewed  in  isolation,  I  do  not  consider  that  the  disqualification  of  eight months on the drink driving charge can be considered to be manifestly excessive, having regard to the circumstances, particularly the breath alcohol level, and the minimum disqualification of six months prescribed in s 56(3) of the Land Transport Act 1998 (the Act).

[6]      Likewise,  viewed  in  isolation,  the  disqualification  of  six  months  for  the charge of driving while suspended cannot be regarded as manifestly excessive.  A minimum period of six months is required by s 32(3) of the Act.

[7]      Nor could it be said that the decision to impose cumulative periods of disqualification was wrong in principle.   The two offences were quite separate, committed over a week apart.   The only connection between them was the quite tenuous one that the drink driving charge was the reason for the suspension.  That would not, on ordinary sentencing principles, have justified a concurrent approach. Further, s 85 of the Act provides that orders for disqualification will ordinarily take effect sequentially and cumulatively.

[8]      Despite all of this, I consider that it is open to the Court to stand back and review the totality of the penalty imposed. A total disqualification of 14 months will have the additional consequence that, to regain her licence, the appellant will be required by s 83 of the Act to re-qualify and pass the appropriate tests.   That is a consequence which would not apply if the minimum period of six months was imposed on each of the charges.

[9]      The appellant has a long and unblemished driving record with no previous driving convictions.   The drink driving charge occurred in circumstances where it can  properly be described  as  an  error  of judgment.   Taking into  account  those considerations,  a disqualification  of the minimum  period  of six  months  on  that charge to give a total disqualification of 12 months, would appropriately serve the relevant principles and purposes of sentencing.

[10]     For these reasons the appeal is allowed, to the extent that the disqualification of   eight   months   imposed   on   the   drink   driving   charge   is   quashed   and   a disqualification of six months on that charge is substituted.  In all other respects the decision appealed against is confirmed.

“A D MacKenzie J”

Solicitors:         Ord Legal, Wellington, for Appellant

Crown Solicitor, Palmerston North, for Respondent