P v Police HC Auckland CRI 2008-404-280

[2009] NZHC 396

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2008-404-280

BETWEEN  P

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         2 April 2009

Appearances: Appellant, Mr P  , in person

Nicholas Whittington for Respondent

Judgment:      2 April 2009

JUDGMENT OF HARRISON J

SOLICITORS

Meredith Connell (Auckland) for Respondent

(copy to Appellant in person)

P V POLICE HC AK CRI 2008-404-280  2 April 2009

[1]      Mr P   was convicted in the District Court at Manukau on 21 August

2008 on charges of refusing to permit a blood sample to be taken (having previously been convicted of two alcohol related driving offences), careless driving and failing to stop for flashing lights.

[2]      On the first and most serious charge Mr P   was sentenced to a term of

125 hours community work and a period of indefinite disqualification: s 60 Land Transport Act 1998.  The statutory period for such disqualification is one year and one day.  On the charge of failing to stop he was convicted and discharged.  He does not challenge either sentence.  However, Mr P   appeals against a term of two years disqualification imposed for careless driving.

[3]      It is appropriate to record that  the careless  driving charge  was  amended downwards from the original charge of dangerous driving.  The maximum period of disqualification for the more serious charge is five years.  Judge Thorburn proceeded correctly on  the  basis  of  the  lesser  charge  but  nevertheless  imposed  a  term  of disqualification of two years.  There is no apparent statutory minimum or maximum.

[4]      Mr  P  ’s  helpful  notice  of  appeal  emphasises  his  submission  that  the prosecution did not make out grounds to justify a period of disqualification on the careless driving charge longer than that imposed on the charge of refusing to permit a blood sample to be taken.  Today, in the best traditions of fairness followed by the Crown  Solicitor,  Mr Nicholas  Whittington  accepts  that  the  Judge’s  sentence  of disqualification cannot be sustained.   The Crown accepts, by comparison with a number of other authorities in the Court of Appeal and this Court, that a period of two years disqualification for a charge of careless driving is manifestly excessive and wrong in principle.  Mr Whittington responsibly accepts that the more serious charge was of refusing to permit a blood sample.   The statutory period of indefinite disqualification applying to that charge should also apply to the charge of careless driving.

[5]     Accordingly, Mr P  ’s appeal is allowed.   The sentence of two years disqualification on the charge of careless driving is quashed.  A substitute term of indefinite disqualification (that is, one year and one day), concurrently with the same sentence  on  the  charge of  refusing to permit  a  blood  specimen  to  be  taken,  is

imposed.

Rhys Harrison J