Perkins v Police HC Greymouth CRI-2011-418-6 - [2011] NZHC 1186

IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY

CRI-2011-418-6

BETWEEN ANDREW HAYES PERKINS Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 3 October 2011

Appearances: Appellant (in person)
P A Currie for Respondent

Judgment: 4 October 2011

JUDGMENT OF MILLER J

[1] Mr Perkins appeals his disqualification of 18 months and a fine of $1,500 for his tenth offence of driving with excess alcohol. His grounds of appeal focus exclusively on the term of the disqualification.

[2] On 22 April 2011 Mr Perkins was stopped at a compulsory check point when riding his motorcycle on Kapiti Road, Paraparaumu. He recorded an evidential reading of 754 micrograms of alcohol per litre of breath, almost twice the legal limit. His explanation was that he was still okay to ride.

[3] Mr Perkins is 48 years of age, and unemployed. It appears that he suffers from a brain injury following a car accident in 1981. Since then he has earned a substantial number of convictions, including not only the nine previous convictions for driving with excess alcohol but also 17 others related to driving, eight for breaching court orders (including driving while disqualified). His most recent drink- driving conviction, however, was in 1999.

[4] There are no sentencing notes available, so I must approach the matter afresh.

ANDREW HAYES PERKINS V NEW ZEALAND POLICE HC GRY CRI-2011-418-6 4 October 2011

[5] Mr Perkins has filed two notices of appeal, which largely overlap. He maintains that the disqualification is extreme, that he has not been disqualified since his conviction since 1999, that disqualification will prevent him from gaining a job, that he is a truck driver and too old to resit heavy traffic licence tests, that a mitigating factor, the death of his sister, was not mentioned, and that if there were a problem with his ability to ride his motorcycle while drunk he would be dead. Of these, the only significant ground is the absence of any conviction for driving with excess alcohol since 1999.

[6] It is evident that Mr Perkins suffers a disability, presumably as the result of his injury. The probation officer describes her interview with him as problematic, saying he continually went off on a tangent, abusing government and the police and ACC. He soon began to abuse the probation officer too. She suggested that the court obtain a health assessment under the Criminal Procedure (Mentally Impaired Persons) Act 2003. He elaborated on his grievances before me. However, there is nothing to suggest that he is mentally disordered or intellectually disabled so as to merit compulsory care, and no question of imprisonment arises in any event. Nothing in his criminal history suggests that the issue has ever arisen. He has been allowed to obtain a licence, and there is no reason why he should not have to prove he can pass the tests. In the circumstances, I treat his unfortunate life story as a mitigating factor.

[7] Mr Perkins’ breath alcohol level was high, and although he has not offended…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Perkins v Police HC Greymouth CRI-2011-418-6

Details

AGLC: Perkins v Police HC Greymouth CRI-2011-418-6 [2011] NZHC 1186
Case: [2011] NZHC 1186
Decision Date: 4 October 2011

CaseChat Overview and Summary

In the High Court of New Zealand, Greymouth Registry, Mr. Andrew Hayes Perkins appeals his disqualification of 18 months and a fine of $1,500 for his tenth offence of driving with excess alcohol. The grounds of appeal focus on the term of the disqualification. Perkins was stopped at a compulsory checkpoint in Paraparaumu, where he recorded an evidential reading of 754 micrograms of alcohol per litre of breath, almost twice the legal limit. Perkins is 48 years old and unemployed, with a history of convictions, including nine previous convictions for driving with excess alcohol and 17 other driving-related convictions. His most recent drink-driving conviction was in 1999.

The legal issue the court needed to decide was whether the disqualification period was manifestly excessive. Perkins argued that the disqualification would prevent him from gaining employment and that he was too old to resit heavy traffic licence tests. The court considered his history of convictions and his disability, but ultimately found that the disqualification period was not manifestly excessive. The court noted that Perkins' breath alcohol level was high, and although he had not offended in 12 years, he had many previous convictions of a relevant nature. The court accepted that his disability may affect his judgment and attitude towards the law, but also noted that his background was a mitigating factor. The court found that the disqualification of 18 months was only six months above the mandatory minimum period.

The court dismissed the appeal and upheld the disqualification period. Perkins' argument that the disqualification would prevent him from gaining employment and that he was too old to resit heavy traffic licence tests was not sufficient to overturn the original sentence. The court considered Perkins' history of convictions and disability, but ultimately found that the disqualification period was not manifestly excessive. The court's decision highlights the importance of considering a defendant's history of convictions and any mitigating factors when determining an appropriate sentence.

Orders