N v Police HC Auckland CRI 2006-404-442

[2007] NZHC 414

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2006-404-442

N

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         2 May 2007

Appearances: Appellant in person

M Gatland for Crown

Judgment:      2 May 2007 at 10:55am

(ORAL) JUDGMENT OF ANDREWS J [on appeal against sentence]

Solicitors/Parties:

N V NZ POLICE HC AK CRI 2006-404-442  2 May 2007

Meredith Connell, PO Box 2213  Auckland

Mr J N  , 9 Whittle Place, Avondale

[1]      This is an appeal against sentence.  The appeal was originally set down for hearing on 30 April 2007.  The appellant did not appear.  He has now provided an explanation  for the  non-appearance.    Leave  has  been  granted  for  the  appeal to proceed.

[2]      On 20 November 2006 the appellant, Mr N  , pleaded guilty to a charge of driving while disqualified.  He was convicted and disqualified from driving for six months.

Background

[3]      On 25 October 2006 at 3:30am the appellant was stopped on Tamaki Drive in Auckland driving a Subaru Station Wagon.   At the time he was disqualified from holding or obtaining a drivers licence having been disqualified from driving for six months as from 28 September 2006.

[4]      According to the summary of facts on the Police caption sheet Mr N   admitted that he as a disqualified driver.

[5]      On 20 November 2006 Mr N   was convicted  and  disqualified  from driving for a further period of six months.   That   means he is disqualified from driving until 28 September 2007.

Grounds of appeal

[6]      As set out in Mr N  ’s notice of appeal, the appeal is on the grounds that:

a)        The Judge erred in not granting special reasons not to disqualify;

b)       Mr N   is disqualified from driving even though he drove due to a medical emergency;

c)        It is in the interests of justice that this appeal be granted.

[7]      The medical emergency referred to in the grounds of appeal will be referred to in greater detail later.

Law

[8]      Section  81  of the  Land  Transport  Act  1988  provides  that  if  one  of  the provisions in that Act requires a Court to disqualify a person from driving for a period not less than a specified minimum period, the Court must order the person to be disqualified for that period unless there are special reasons relating to the offence that cause the Court to consider it fit to order otherwise.

[9]      For a charge of driving  while  disqualified  the  mandatory disqualification period –  unless the  Court  finds  special  reasons  –  is  six  months.    The  “special reasons” must relate to the offence, not the offender, and must directly mitigate or extenuate the seriousness of the offence.

Submissions on appeal

[10]     Mr N   claims that the District Court Judge did not consider the special reasons relating to the offence.   From his submissions and evidence given, under oath, by Mr Glenn Brian Williams I understand that the circumstances of the offence are as set out below.

[11]     Mr Williams was driving the car, having taken Mr N   out for a drive to see the lights of Auckland.   As he was driving the vehicle Mr  Williams  felt  a migraine attack coming on and started to feel unwell.    He says that he suffers from severe migraines and attacks can last two days or longer.   He says he is a chronic sufferer.   It is essential, he says, that when such an attack starts he must take his medication as soon as possible.  On this particular occasion Mr Williams’ symptoms got worse and he asked Mr N   if he could drive him home immediately because he needed to take his medication.  He said that he would normally carry medication with him but on this occasion did not have it.

[12]     This meant that Mr N   was required to drive the car from Tamaki Drive to Mr Williams’ home in Avondale.

[13]     Mr Williams knew that Mr N   was disqualified from driving and knew the  consequences  if  he was caught  driving.    He  did  not  consider  other  options because in fact, he considered, there were no other options available to him but to get home to bed as soon as possible.   He considered that the quickest way to get him home to bed and medication was to have Mr N   drive him.

[14]     Accordingly, Mr N   started driving the car.  They were then stopped by the Police on Tamaki Drive.  Mr N   says that the emergency, i.e. Mr Williams’ migraine, was mentioned to the Police Officer who stopped them.

[15]     Mr N   and Mr Williams were taken to a Police Station and eventually at about 6am Mr Williams’ father came and collected them.  By that time Mr Williams was really ill and wanted only to lie down.

[16]     The vehicle was impounded and the following week Mr Williams decided to go through the process of appealing to have it returned.  He made an application to the District Court which was heard by Judge Joyce QC.  Mr Williams gave evidence as to his migraine attack and presented a medical certificate from his doctor which confirmed that he does indeed suffer from migraines and has been prescribed appropriate medication.   Judge Joyce QC allowed Mr Williams’ appeal and allowed release of the vehicle.  Mr Williams was held not to liable for any storage or towage fees.

[17]     Mr N   then appeared in the District Court, first, on 31 October 2006 then on 20 November 2006.  Mr N   said that he saw the duty solicitor and told him about the emergency.   Both he and Mr Williams said that submissions were made to the District Court Judge as to the circumstances of the offence.   Mr N   also said that the medical certificate and the decision of Judge Joyce QC were put before the Court when Mr N   appeared on 20 November 2006.

Discussion

[18]     I note first that there is no indication from the Court file that either the Police Officer or the Court was told of Mr Williams’ migraine attack.  The Police summary does not indicate any explanation having been offered to the Police Officer at the time and the Judge’s notes on sentencing made no mention of an argument being raised as to special reasons for not imposing the mandatory disqualification period.

[19]     However, as noted earlier, both Mr N   and Mr Williams stated in Court today that the matter was raised both with the Police and in the District Court.

[20]     I am therefore in a difficult position in considering an appeal.   The matter having been raised in Court, the District Court Judge had a discretion as to whether to impose the mandatory sentence.  Normally this Court is reluctant to interfere with the exercise of such a discretion.  This is for the reason that the District Court Judge is usually in the best position to consider the factors relevant to the exercise of that discretion.  However, in the present case, there is no indication as to the reasoning for the Judge’s refusal to find that there were special reasons so as to justify the imposition of a  period  of disqualification  that  was  less  than  the  mandatory six months.

[21]     Having heard from Mr N   and the evidence given by Mr Williams I am satisfied that Mr Williams’ migraine attack constituted special reasons relating to the offence such that the mandatory period of six months should be imposed.

[22]     That being the case I turn to consider whether the disqualification should be quashed in total or whether a different period should be imposed.  In relation to that issue it is relevant to note that Mr N  , when he appeared in the District Court on

20 November 2006, had previously been convicted of driving while disqualified. That conviction was on 24 July 2006 in the Whangarei District Court.  Accordingly, when he appeared on 20 November 2006 Mr N   was not a “first time” offender for driving while disqualified, this was his second appearance on that charge.

[23]     On  that  basis  I  consider  it  would  not  be  appropriate  to   quash  the disqualification period totally.  There had to be some recognition of the seriousness of driving while disqualified.  Totally removing the disqualification would not meet the requirement for deterrence for a person who had been disqualified from driving. That said, I consider in this case it is sufficient that the disqualification be for three months rather than the mandatory period of six months.

[24]     Accordingly, Mr N  ’s appeal is allowed to the extent that the period of disqualification of six months is quashed and a disqualification of three  months imposed in its stead.

Andrews  J