Oldfield v Police
[2013] NZHC 3206
•3 December 2013
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2013-404-000277 [2013] NZHC 3206
BETWEEN SCOTT KEVIN OLDFIELD Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 3 December 2013
Appearances: B Ward for Appellant
L Mills for Respondent
Judgment: 3 December 2013
(ORAL) JUDGMENT OF ANDREWS J [Appeal against sentence]
This judgment is delivered by me on 3 December 2013 at am/pm pursuant to r 11.5 of the High Court Rules.
..................................................... Registrar / Deputy Registrar
Solicitors/Counsel:
Gellert Ivanson Limited, St Heliers, Auckland (Appellant) Meredith Connell, Auckland (Respondent)
OLDFIELD v NEW ZEALAND POLICE [2013] NZHC 3206 [3 December 2013]
Introduction
[1] The appellant has appealed against the sentence imposed on him by Judge Kiernan in the Waitakere District Court on 27 June 2013, after he pleaded guilty to a charge of driving with excess breath alcohol causing injury.1 It was the appellant’s second drink-driving conviction, he having been convicted on a charge of driving with excess breath alcohol on 21 April 2009, in respect of offending on 21 March
2009. The appellant was ordered to pay reparation of $1000, and disqualified from driving for 12 months. I note that the disqualification was suspended by the District Court on 14 August 2013, so the appellant would appear to have completed approximately six weeks of the disqualification.
Facts
[2] The relevant facts are that on 31 March 2012, at about 10 pm, the appellant was driving on state highway 16 at Waterview, Auckland. He collided with another car, which then hit a concrete barrier and veered off the road. As a result, the driver of that car suffered a fractured wrist. The appellant was stopped a short time later. He showed signs of recent alcohol consumption. A breath test showed a breath alcohol level of 637 micrograms of alcohol per litre of breath.
District Court proceedings
[3] The grounds of the appellant’s appeal are founded on alleged delays in moving the charges against him through the District Court, and changes in the charges brought against him. It is therefore necessary to set out the procedural history of the matter, as set out in the appellant’s submissions.
[4] The appellant first appeared in Court on 23 April 2012, and was remanded on bail to 14 May 2012, with a condition that he not drive, except for work purposes. The appellant appeared in Court again on 14 and 28 May, and again on 11 June
2012. A not guilty plea was entered on 25 June 2012, which is when the present charge was laid, and a status hearing was set down for 8 October 2012. That hearing
did not proceed, as the police were not ready, and the status hearing was adjourned to
29 October 2012.
[5] It appears that the appellant was first charged with driving with excess breath alcohol (simpliciter), and failing to stop to ascertain injury. The appellant did not accept that he had failed to stop, and says that the police agreed to withdraw that charge if he pleaded guilty to the charge of driving with excess breath alcohol. However, as I noted earlier, on 25 June 2012, the charges against the appellant were reviewed, and the charge of driving with excess breath alcohol was replaced by a charge of driving with excess breath alcohol causing injury.
[6] The appellant did not accept that his driving, irrespective of his breath alcohol level, had caused the accident, so entered a not guilty plea. Ms Ward, in her written submissions, submitted that the status hearing on 29 October 2012, did not proceed because police disclosure was still outstanding. The charges were then adjourned for a final status hearing on 10 December 2012. The Judge presiding on
29 October 2012 (Judge Ryan) noted that if disclosure were not finalised, an application for stay on the grounds of delay would likely be successful. On
10 December disclosure was still not complete, but Judge Ryan refused to grant a stay (referring to the judgment of the Supreme Court in R v Williams, to the effect that the remedy of stay is a last resort).2
[7] It appears from Judge Kiernan’s sentencing notes that the charge of failing to stop was withdrawn shortly before the appellant pleaded guilty to the charge of driving with excess breath alcohol causing injury. At the appellant’s sentencing, the police prosecutor acknowledged the police delays in disclosure and in ensuring that the correct charges were laid. In her notes Judge Kiernan recorded Ms Ward’s submission that a conviction and discharge would be sufficient penalty, given the procedural background, and the fact that the appellant had been subject to restrictive bail conditions as to driving.
[8] Judge Kiernan noted the delay in resolving the charges against the appellant, and that the delay was not the appellant’s fault, but rather the result of circumstances
to do with the prosecution and Court listings. However, her Honour could not agree that a conviction alone was sufficient. Instead, the Judge ordered that rather than pay a fine, the appellant was to pay reparation to the victim. The period of disqualification imposed was the statutory minimum, given that this was the appellant’s second conviction.
Appeal issue
[9] The sole issue is whether the Judge was right to conclude that a conviction and discharge was not appropriate, and that the appellant should be convicted and then subject to the mandatory disqualification.
[10] The power to convict and discharge an offender under s 108 of the Sentencing Act 2002 is discretionary. The appellant must therefore establish that the Judge’s decision arose from an incorrect consideration of factors, or was plainly wrong. The weight that the Judge gives to any particular factor is a matter for the Judge, the requirement is to consider relevant factors, not consider irrelevant factors, and that the Judge is not plainly wrong.
[11] In her written submissions Ms Ward acknowledged that in contrast to the position as to discharge without conviction, there is no guidance as to how the discretion to convict and discharge is to be exercised, save that s 109 of the Sentencing Act provides that the Court must not convict and discharge an offender unless it is satisfied that a conviction is sufficient penalty in itself. Ms Ward submitted that a conviction and discharge is regularly applied to lesser charges where the offender is facing multiple more serious charges, and is also warranted where the offence is of a relatively minor nature warranting a conviction but not any further contact with the criminal justice system.
[12] Ms Ward submitted that the Judge took into account irrelevant considerations. She submitted that the Judge failed to take into consideration that the appellant would most likely lose his job if he were disqualified for 12 months. She also submitted that the Judge failed to give sufficient weight to the fact that the appellant had already been penalised by restrictive bail terms as to driving for a period of eight months. Further, Ms Ward submitted that the Judge gave undue weight to the
seriousness of the appellant’s breath alcohol level, but insufficient weight to his
genuine remorse and his offer to be involved in restorative justice.
[13] For the appellant, Mr Mills submitted that the disqualification was mandatory, that having been convicted the Judge was required to impose not less than 12 months disqualification unless the appellant could establish special reasons relating to the offence, pursuant to s 81 of the Land Transport Act 1998, or seek a community based sentence under s 94 of that Act. It was submitted that the appellant had not sought to establish either at sentencing or on appeal.
[14] Counsel also referred me to the judgment of Lang J in Trollope v Police where his Honour rejected a submission that a bail condition as to driving could be regarded as a special reason.3 As an aside, I note that the issue raised in Trollope was different from the present case in which it has been acknowledged that a submission based on the special reasons provision could not succeed.
[15] I am not satisfied that there was any error in the Judge’s sentencing. Clearly, the Judge did consider a conviction and discharge, but decided against it. The appellant had a high breath alcohol level. The driver of the other car was injured as a result of the appellant’s offending. Further, notwithstanding that the appellant had expressed remorse, had paid reparation, and had written a letter of apology, the Judge noted Ms Ward’s submission to her that the appellant did not entirely accept that he was the case of the accident.
[16] Accordingly, I am not persuaded that the Judge erred in refusing to convict and discharge.
[17] However, I have raised with counsel at the hearing of this appeal an issue as to whether, pursuant to s 85 of the Land Transport Act, if a submission might have been made in the District Court and indeed on appeal that there might be grounds for the disqualification to be back-dated pursuant to s 85 of the Land Transport Act.
Section 85(1) provides:
3 Trollope v NZ Police [2013] NZHC 1676.
If an order is made by a Court under any Act disqualifying a person from holding or obtaining a driver licence, the period of disqualification starts on the day the order is made unless the Court otherwise directs or that Act otherwise provides.
[18] I note that Venning J discussed s 85 in his judgment in Edwards v Police and noted as follows:4
[12] In the event of a conviction … section 85(1) would enable the District Court Judge to backdate the mandatory period of disqualification … The wording of the section enables the District Court Judge to order the disqualification to commence on any date fixed by the Court.
[19] His Honour also noted that the predecessor to the Land Transport Act 1998 (s 36 of the Transport Act 1962), had previously provided that disqualification could only be postponed or directed to apply from a date later than the date of the order. However, that constraint had been removed by s 85(1) of the 1998 Act. His Honour commented that “the only reason can have been to provide the Court with flexibility and to enable the disqualification period to run from a date preceding the date of the
order as well as from a later date.”5
[20] Ms Ward acknowledged that no submission had been made under s 85 in the District Court. However, she submitted that this Court could consider it and that the Court should consider backdating the disqualification as far as possible. to take account of the delay in the appellant’s prosecution. She noted that the appellant had first appeared on 23 April 2012 and was not sentenced until some 14 months later. She would expect a prosecution to be completed within a period of more or less four months. Ms Ward also noted that the prosecution accepted that its delays had contributed to the delay in dealing with the appellant.
[21] In response on this point, Mr Mills submitted that the sentence imposed on the appellant was not ungenerous, and that the Judge was entitled, and indeed required, to impose a disqualification of at least 12 months. As to the point as to whether the appellant will be caused inconvenience or indeed other difficulties as a
result of the disqualification, Mr Mills submitted that that is the purpose of the
4 Edwards v Police [2012] NZHC 1350, at [12].
5 At [27].
regime; that is, it is to keep people who are convicted of drink-driving offences off the road.
[22] In this case I have concluded that it is appropriate, given the delays at the District Court, to consider making an order to backdate the commencement of the appellant’s disqualification. It is not only the delay in the process that is significant, it is also the fact that the appellant has for all of the period been subject to a bail condition which considerably restricted his driving. The question is as to the length of the backdating. I cannot accept that it would be appropriate to backdate it to such an extent that there is virtually no period of disqualification left. However, I am prepared to backdate the disqualification by a period of four months so that it takes effect as from 1 August 2013, rather than as from today, and I note that the appellant has already completed approximately six weeks of the period of disqualification.
Result
[23] The effect therefore is that insofar as the appellant sought that he now be convicted and discharged, the appeal is dismissed.
[24] However, the disqualification, which in essence remains, is backdated so that the 12 month period is to commence from 1 August 2013. I note that the appellant
has already completed approximately six weeks of the 12-month disqualification.
Andrews J
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