Police v Noblett
[2024] NZHC 2195
•6 August 2024
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2024-485-22
[2024] NZHC 2195
BETWEEN NEW ZEALAND POLICE
Appellant
AND
MARK RICHARD NOBLETT
Respondent
Hearing: 23 July 2024 Counsel:
M J R Blaschke for the Appellant S M Barclay for the Respondent
Judgment:
6 August 2024
JUDGMENT OF GWYN J
Introduction
[1] This is an appeal by the New Zealand Police against a decision of Judge Nicholls in the Porirua District Court on the ground that the sentence given to Mark Noblett for driving with excess breath alcohol, third or subsequent,1 was manifestly inadequate.
[2] This appeal is one of four filed by the Crown on behalf of the Police raising the same issue. The defendants in the appeals were sentenced for driving with excess breath or blood alcohol third or subsequent under s 56(1) or (2) and (4) of the Land Transport Act 1998. This offence has a mandatory period of disqualification of at least one year, but in each case the Court found “special reasons” to depart from that mandatory disqualification period and imposed disqualification periods of six months
1 Land Transport Act 1998, s 56(1) and (4). The maximum penalty is two years’ imprisonment or a fine not exceeding $6,000 and the court must disqualify the person from holding or obtaining a driver licence for more than one year unless there are special circumstances relating to the offence.
NEW ZEALAND POLICE v NOBLETT [2024] NZHC 2195 [6 August 2024]
under s 81 of the Land Transport Act. The other three decisions2 were made in the Christchurch District Court. The Christchurch appeals were heard together by Harland J on 19 and 26 June 2024. The Court’s decision is reserved.
Background
The offending
[3] On 7 November 2023 at approximately 4.30 pm Mr Noblett was breath tested by the Police in Waikanae. His reading revealed 485 micrograms of alcohol per litre of breath, almost twice the limit.3 He told Police he had consumed four beers.
[4] In an affidavit filed prior to sentencing, Mr Noblett said that he had been at the pub on the night of the Melbourne Cup for one hour talking to a friend and “did not really think about how I would be affected by what I drank.” He also claimed he left “before the races started and the really heavy drinking began”. He says he did not realise he was over the limit until he was breath tested and he was “very disappointed” to be back before the courts because he had changed his behaviour since his previous conviction for drink-driving almost 20 years prior.
Criminal history
[5] Mr Noblett has an extensive criminal history, principally for drink-driving offences. His first conviction for driving with excess blood alcohol was entered in 1984. He has six total convictions for drink-driving including one as an unlicensed driver.
[6] His other convictions include failure to accompany, resisting police, common assault, driving while disqualified, male assaults female and offensive behaviour. However, they are historical offences. Between 2002 and 2023, Mr Noblett has three convictions, all for driving with excess blood or breath alcohol.
2 New Zealand Police v Keepa [2024] NZDC 4723; New Zealand Police v Piripi [2024] NZDC 4702; and New Zealand Police v Tahau [2024] NZDC 4570.
3 The maximum micrograms of alcohol per litre of breath would have been 250, before an infringement offence would arise.
The decision under appeal
[7] On 29 January 2024 Judge Nicholls in the Porirua District Court sentenced Mr Noblett to six months’ disqualification from holding or obtaining a driver licence for driving with excess breath alcohol, third or subsequent.4
[8] The Judge said that the decision “rests on”5 a previous case, Maniapoto v Police.6 In that case, there was a 20 year gap between Ms Maniapoto’s second and third drink-driving offences that Winkelmann J (as she then was) found could amount to special reasons not to impose the mandatory disqualification period of at least one year. The Judge imposed the shorter disqualification period of six months.
[9] Judge Nicholls noted that Mr Noblett’s offending also had a 20 year gap between the most recent offending and the qualifying offences that tipped the offence into third or subsequent, triggering the presumed mandatory period of one year disqualification.7
[10] The Judge interpreted Maniapoto v Police to say that a 20 year gap between the qualifying offences is a feature of the offending that he was presented with. The Judge found the gap, being the circumstances of the offending, was “seen to be something that is relevant to s 81” in Maniapoto v Police. For those reasons, the Judge imposed an effective disqualification of six months.8
Submissions
For the Crown
[11] Mr Blaschke, for the Crown, submits that the Judge was wrong to find there were “special reasons” under s 81 that justified a departure from the minimum period of disqualification from driving usually required under s 56(4).
4 New Zealand Police v Noblett [2024] NZDC 4525.
5 At [2].
6 Maniapoto v Police HC Rotorua CRI 2008-463-1, 18 April 2008.
7 New Zealand Police v Noblett, above n 4, at [3].
8 At [5].
[12] The Crown submits that personal circumstances of the offender including the nature and age of their previous convictions cannot amount to “special reasons relating to the offence”. The Court should have made an order disqualifying Mr Noblett from holding or obtaining a driver licence for at least one year and one day. The end sentence of disqualification for six months was manifestly inadequate.9
[13] The Crown notes that the District Court used the power under s 81 to impose a six month period of disqualification although the Court referred to backdating.10 The Crown says that s 81 should not have been engaged if correctly interpreted because the Judge considered special reasons relating to the offender, not the offence as the provision requires. The discretion in s 81 was not open to the Judge and neither could backdating through s 85 have been justified to achieve the result of s 81.
[14] The Crown submits that Maniapoto v Police is no longer representative of settled law; it has been effectively overruled. In 2018 Parliament amended the Land Transport Act to make clear that s 81 is limited to special reasons relating to the offence. Further, subsequent High Court decisions have held that the special reasons must relate to the offence, not the offender.11
[15] The Crown submits that the District Court failed to consider the whole of the respondent’s history, instead focusing on the gap between his offences. His previous conviction for drink-driving resulted in disqualification for 18 months and community work. The Court also did not consider that the respondent had committed an infringement offence for drink-driving in 2021. His history makes the lenient approach unjustified.
[16] Accordingly, if this Court agrees that the District Court erred in law by departing from the mandatory minimum period of disqualification, the period of
9 For general principles applicable to prosecution appeals against sentence, the appellant refers to
McCaslin-Whitehead v R [2023] NZCA 259 at [29]–[32].
10 About backdating, see Hood v New Zealand Police [2022] NZHC 120.
11 Law of Transportation (online ed, Thomson Reuters) at [LT81.02(g)], citing Maranui v New Zealand Police HC Wanganui CRI-2009-483-9, 1 April 2009 and Merry v New Zealand Police HC Nelson CRI-2009-442-7, 19 May 2009. See also New Zealand Police v Tuhou HC New Plymouth CRI-2010-442-9, 12 May 2011; Anderson v New Zealand Police [2016] NZHC 942; and Rewi v New Zealand Police [2021] NZHC 1950.
disqualification should be set aside and replaced with a period of one of one year and one day disqualification.
For the respondent
[17] Ms Barclay, for the respondent, submits that the sentencing Judge did not err in the exercise of his discretion.
[18] The respondent submits that where previous convictions modify the penalty for an offence, they also modify the offence itself. When the legislation sets out that previous convictions are an essential element of the offence, they must relate to the offence itself and not only the offender. In support of that submission, the respondent refers to two provisions in the Criminal Procedure Act 2011:
(a)Section 22(3) which provides that:
… if a charge discloses the existence of a previous conviction or convictions in accordance with this section, and as a result the offence is a category 3 offence in accordance with section 6(3), the provisions of section 50 apply in the ordinary way.
(b)Section 142(4) reflects that if the charge is not amended to disclose previous convictions, the defendant is only liable to the maximum penalty for the offence they would otherwise be liable for if they did not have previous convictions.
[19] By analogy, the respondent submits that provisions in the Crimes Act 1961 require multiple sections to be read concurrently to constitute a full offence even if the primary provision alone can constitute an offence in some circumstances. Section 66, about party liability, is one example. Further the Crimes Act contains some offences where the penalty and element necessary to determine the penalty are in separate sections to the primary provisions. For example, the elements of theft are in s 219 but the penalty is in s 223.
[20] Relying on that analogy the respondent submits that the element of the charge set out in a different section of the Land Transport Act is still an element of the offence.
Offences under the Act should not be defined more narrowly than offences in other legislation.
[21] In response, Mr Blaschke says that even if the Criminal Procedure Act adopts a wider definition of offences, that is simply to provide for the procedure that follows. For example, whether there is a right to a jury trial or not. Ms Barclay’s analysis does not follow through into the Land Transport Act.
[22] The respondent submits that Maniapoto v Police has not been overruled; no higher court decision has considered it. It was open to the District Court to rely on that authority.
[23] As regards the other High Court decisions about whether the length of time since the last relevant conviction can constitute special reasons relating to the offence, the respondent notes:
(a)In Maranui v New Zealand Police,12 the Judge was not referred to
Maniapoto.
(b)Merry v New Zealand Police pre-dates the Criminal Procedure Act and is no longer good law.13
(c)Although New Zealand Police v Tuhou was decided in 2011, the Criminal Procedure Act did not come into force until July 2013.14
(d)Woolston v New Zealand Police15 is the only decision after the Criminal Procedure Act entered into force about the same issue. The respondent submits it was wrongly decided because it relied on case law pre-dating the Act, which was not good law, and did not consider the Act. The interpretation that s 56(4) was not intended to create a separate offence but rather concerned the level of penalty cannot stand in a post-
12 Maranui v New Zealand Police, above n 11.
13 Merry v New Zealand Police, above n 11.
14 New Zealand Police v Tuhou, above n 11.
15 Woolston v New Zealand Police [2013] NZHC 3225.
Criminal Procedure Act environment because that would have the absurd result of the offence being both category two and three.
[24] Moreover in 2018 Parliament amended the Land Transport Act including s 81 but did not clarify what reasons relate to the offence rather than the offender. The respondent submits that therefore the interpretation sections in the Criminal Procedure Act should be taken to apply.
[25] The respondent submits that s 81 is not a limited power and the appropriate route to finding an alternative sentence is not through s 94 nor the limited licence regime. Section 81 is a different power to s 94.
[26] The respondent submits that the six-month period of disqualification was appropriate. Mr Noblett pleaded guilty, accepting that he committed an offence. There are 18 years between his convictions. He has fewer markers of continuing to be a risk to the public than someone who has offended more regularly.
Relevant law
Jurisdictional provisions
[27] The Crown brings the appeal under s 246 of the Criminal Procedure Act. The appeal has the requisite consent of the Solicitor-General.16
[28] Section 250 then provides that the Court must allow the appeal if it is satisfied that there was an error in the sentence and a different sentence should be imposed. The disqualification is said to be a “sentence” because of the definition of sentence in s 212 of the Criminal Procedure Act: “includes any method of disposing of a case following conviction”.
Land Transport Act provisions
[29] The offence and mandatory period of disqualification are set out in s 56 of the Land Transport Act. This section relevantly provides:17
16 Criminal Procedure Act 2011, ss 246(2) and 248(3).
17 Emphasis added.
56 Contravention of specified breath or blood-alcohol limit
(1)A person commits an offence if the person drives or attempts to drive a motor vehicle on a road while the proportion of alcohol in the person’s breath, as ascertained by an evidential breath test subsequently undergone by the person under section 69, exceeds 400 micrograms of alcohol per litre of breath.
(1A) A person commits an infringement offence if the person drives or attempts to drive a motor vehicle on a road while the proportion of alcohol in the person’s breath, as ascertained by an evidential breath test subsequently undergone by the person under section 69, exceeds 250 micrograms of alcohol per litre of breath but does not exceed 400 micrograms of alcohol per litre of breath.
(2)A person commits an offence if the person drives or attempts to drive a motor vehicle on a road while the proportion of alcohol in the person’s blood, as ascertained from an analysis of a blood specimen subsequently taken from the person under section 72 or section 73, exceeds 80 milligrams of alcohol per 100 millilitres of blood.
(2A) A person commits an infringement offence if the person drives or attempts to drive a motor vehicle on a road while the proportion of alcohol in the person’s blood, as ascertained from an analysis of a blood specimen subsequently taken from the person under section 72(1)(b) to (e) or 73, exceeds 50 milligrams of alcohol per 100 millilitres of blood but does not exceed 80 milligrams of alcohol per 100 millilitres of blood.
(2B) A person commits an infringement offence if—
(a)the person fails or refuses to undergo an evidential breath test after having been required to do so under section 69; and
(b)analysis of a blood specimen subsequently taken from the person under section 72(1)(a) indicates that the person drove or attempted to drive a motor vehicle on a road while the proportion of alcohol in the person’s blood exceeded 50 milligrams of alcohol per 100 millilitres of blood but did not exceed 80 milligrams of alcohol per 100 millilitres of blood.
(3)If a person is convicted of a first or second offence against subsection
(1) or subsection (2),—
(a)the maximum penalty is imprisonment for a term not exceeding 3 months or a fine not exceeding $4,500; and
(b)the court must order the person to be disqualified from holding or obtaining a driver licence for 6 months or more.
(3A)The mandatory disqualification in subsection (3)(b) does not apply if—
(a)an order is made under section 65; or
(b)an alcohol interlock sentence is ordered under section 65AC(1).(4) If a person is convicted of a third or subsequent offence against subsection (1) or (2) or any of sections 57A(1), 57B(1), 57C(1), 58(1), 60(1), or 61(1) or (2) (whether or not that offence is of the same kind as the person’s first or second offence against any of those provisions),—
(a)the maximum penalty is imprisonment for a term not exceeding 2 years or a fine not exceeding $6,000; and
(b)the court must order the person to be disqualified from holding or obtaining a driver licence for more than 1 year.
(4)If a person is convicted of a third or subsequent offence against subsection (1) or (2) or any of sections 57A(1), 57B(1), 57C(1), 58(1), 60(1), or 61(1) or (2) (whether or not that offence is of the same kind as the person’s first or second offence against any of those provisions),—
(a)the maximum penalty is imprisonment for a term not exceeding 2 years or a fine not exceeding $6,000; and
(b)the court must order the person to be disqualified from holding or obtaining a driver licence for more than 1 year.
…
(6) The imposition of a mandatory disqualification under this section is subject to section 81 (which allows a court not to order disqualification for special reasons relating to the offence).
[30] The court’s discretion to not impose the mandatory period of disqualification is set out in s 81 of the Land Transport Act, which provides:18
81 Mandatory disqualification: court’s discretion if special reasons relating to offence
(1)If any provision of this Act (other than section 63) requires a court to disqualify a person from holding or obtaining a driver licence or transport service licence for a period not less than the specified minimum period, the court must order that the person be disqualified accordingly unless for special reasons relating to the offence it thinks fit to order otherwise.
(2)Nothing in any provision referred to in subsection (1) or in section 65 restricts any other duty or power of the court to disqualify a person from holding or obtaining a driver licence or transport service licence or to impose any other penalty.
(3)This section is subject to section 94 (which allows a court to substitute disqualification with a community-based sentence).
18 Emphasis added.
[31] In Maniapoto v Police, the Judge referred to the three steps to be examined in determining the existence of “special reasons” under s 81:19
The steps to be examined in determining the existence of special reasons are threefold. (1) whether in law, particular circumstances are capable of constituting special reasons. (2) If so, whether on the facts they are to be so regarded, and (3) whether the court should exercise its discretion to dispense with the minimum disqualification in whole or in part.
[32]Those three steps have been subsequently applied in some recent decisions.20
Previous case law
[33] This appeal turns on whether “special reasons relating to the offence” in s 81 of the Land Transport Act includes the time that has elapsed between the offences leading to the charge under s 56(1) and (4).21
[34] Counsel for both parties have helpfully referred me to previous case law interpreting the circumstances that can constitute special reasons under s 81 in relation to offences under s 56. The case law demonstrates a range of approaches.
[35] In two previous cases, the High Court held both that a large temporal gap between qualifying offences (for example, the second and third drink-driving offences) can constitute special reasons relating to the offence under s 81, and that the facts of the case established that special reason.
(a)In Maniapoto v Police,22 Winkelmann J held that special reasons relating to the offence can including the time between qualifying offences as a matter of law. The Judge concluded that the facts established those special reasons. Ms Maniapoto’s first two qualifying offences had occurred 20 years prior, and within six days of each other. She had not set out to drive on the day that she received her third drink-driving charge; the driving had come about in response to her
19 Maniapoto v Police, above n 6, at [14], quoting Martin v Auckland City Council HC Auckland M692/83, 13 May 1983.
20 See for example Merry v New Zealand Police, above n 11, at [5]; and Woolston v New Zealand Police, above n 15, at [8].
21 The same would apply if the charge was under s 56(2) and (4).
22 Maniapoto v Police, above n 6.
family members needing assistance in a perceived emergency. Although there were alternatives to driving, the Judge concluded that Ms Maniapoto could not properly be considered a recidivist drink-driver contemplated by the legislative intent to need to be off the roads for longer.
(b)In Rewi v New Zealand Police,23 Cull J adopted the reasoning of Maniapoto, holding that special reasons can include the time between qualifying offences in law and those special reasons were established on the facts. Ms Rewi’s third drink-driving offence had occurred 15 years before her fourth. In that time, she had made considerable changes including limiting her drinking. The Judge concluded that Ms Rewi could not properly be characterised as a recidivist drink-driver.
[36] In Woodward v New Zealand Police,24 Dobson J held that qualifying offences being of a historical nature can constitute a special reason relating to the offence. The appellant’s previous qualifying offence had occurred 20 years before. Under the first step of the test, the Court observed that the existence of relevant previous convictions is not an element of the offence, but they are a circumstance of the offender which goes to the range of penalties that would apply on conviction. Under the second step, the Court explained that the appellant had been drinking at a public park when she rode a 50cc child’s motor bike in the park. She argued that ignorance of the law was a special reason; she did not understand that she was driving on a road, nor on a vehicle. The Judge held that ignorance of the law in that way was not a special reason relating to the offence. The historical nature of the previous offences was not discussed in relation to the facts argued to constitute special reasons.
[37] In four previous cases, two of which relate to different charges, the High Court has held that previous qualifying offences being of a historical nature is not capable of constituting special reasons relating to the offence as a matter of law.
23 Rewi v New Zealand Police, above n 11.
24 Woodward v New Zealand Police HC Wellington CRI-20110485-67, 31 August 2011.
(a)In Merry v New Zealand Police,25 there was a 24 year gap between the appellant’s relevant offences. Justice Ronald Young held that the time between offences could not constitute special reasons in law because:26
Parliament has seen fit to exclude the personal circumstances of the offender from any category of special reasons entitling consideration of reduced mandatory disqualification. The previous criminal record of the offender is personal to that offender. Therefore, permitting the detail of the offender’s past record to be the basis of ‘special reasons’ seems to offend against Parliaments wish that personal circumstances of an offender must not be taken into account in deciding if there are special reasons. I am, therefore, satisfied that whatever the historic nature of the previous convictions of the appellant they cannot be considered as special reasons relating to the offence because they do not relate to the offence itself.
(b)In New Zealand Police v Tuhou,27 there was a 17 year gap between relevant offences. Justice Miller held that special reasons relating to the offence must “be compatible with the policy of the legislation.” The Judge noted that disqualification is not only a punishment but also a means of protecting the public from further offending. The Judge acknowledged the different opinions amongst High Court Judges as to whether a gap between offences is a special reason and concluded the “preponderance of view … is that previous convictions are personal to the offender, so cannot amount to special reasons.”28
(c)In Woolston, the appellant was charged with refusing to permit a blood specimen to be taken under s 60, not s 56 as in this case. It was the appellant’s third or subsequent charge under s 60 and 20 years had elapsed between relevant offences. Justice Andrews held that the historical nature of the previous convictions was not a special reason relating to the offence because s 60 specifies when a person commits an offence and creates an offence.
25 Merry v New Zealand Police, above n 11.
26 At [19].
27 New Zealand Police v Tuhou, above n 11.
28 At [12].
(d)In Maranui v New Zealand Police,29 there had been a 21 year gap between the appellant’s relevant driving convictions. However, the appellant was charged under s 60, not s 56 as here. Justice Dobson held that “the mere length of time since the last relevant conviction cannot constitute ‘special reasons relating to the offence’.”30 The Judge referred to previous decisions including Clotworthy v New Zealand Police31 where Wild J concluded that the lapse in time between convictions for excess breath alcohol offending is only a factor in determining the penalty and in context, the lapse is not in and of itself a special reason under s 81.32
[38] I was also referred to case law where the temporal gap was not the pleaded “special reason relating to the offence”, but the court discussed other special reasons.
(a)In Mitchell v New Zealand Police,33 the appellant had a rare form of diabetes. At a party, his blood sugar levels spiked. There were no sober drivers and he considered that ordering a taxi or Uber home would cause risky delay, although he had not inquired how long such a service would take to arrive. Mr Mitchell drove home to get insulin. Noting that the appellant could have ordered a ride to a nearby medical centre instead of driving to his home which was much further away, the Court held there were no special reasons to depart from the mandatory disqualification period. I note that Mr Mitchell was charged with driving with excess blood alcohol under s 56, but it was not third or subsequent, so a temporal gap between qualifying offences was not considered.
(b)In Vincent v New Zealand Police,34 the appellant was charged with driving with excess breath alcohol but, unlike Mr Noblett’s circumstances, it was not his third or subsequent such charge. The High
29 Maranui v New Zealand Police, above n 11.
30 At [15].
31 Clotworthy v New Zealand Police (2003) 20 CRNZ 439 (HC).
32 Maranui v New Zealand Police, above n 26, at [18].
33 Mitchell v New Zealand Police [2021] NZHC 1572.
34 Vincent v New Zealand Police [2017] NZHC 283.
Court held that drink-driving in the midst of a mental health crisis was not a special reason relating to the offence.
(c)In Walford v New Zealand Police,35 the time between qualifying offences was not the pleaded special reason. The High Court held that Mr Walford drink-driving a friend to receive medical attention, in circumstances where they had no charged phone to call for help, was not a special reason relating to the offence.
(d)In Rota v New Zealand Police,36 there was an 18 year gap between qualifying offences but the Court did not expressly state a conclusion as to whether such a gap can constitute a special reason relating to the offence. Ultimately, the Court concluded there were no special reasons on the facts. The Court’s assessment regarding special reasons focused on the appellant’s reason for driving: he was removing a young person from a situation said to involve a fight. The Court found it was open to the appellant to call the Police or leave the property and call a taxi, and as such, driving was not reasonable.
(e)In Anderson v New Zealand Police,37 the appellant was charged with driving with excess breath alcohol, but it was not third or subsequent. Justice Wylie held that special reasons embrace only factors of particular or exceptional character and personal circumstances of the offender are not relevant unless they either influence events leading up to the commission of the offence or are part and parcel of the offending. Special reasons need to be a of a sufficiently compelling nature to justify departure from the usual consequences and must not conflict with the purpose of the legislative provision. Special reasons are unlikely to be established when all reasonable and possible alternatives have not been explored. The Judge held that no special reasons were established by the facts. The pleaded special reasons were that the
35 Walford v New Zealand Police [2016] NZHC 2785.
36 Rota v New Zealand Police [2019] NZHC 2812.
37 Anderson v New Zealand Police, above n 11.
appellant been at a friend’s birthday celebration, intending to stay overnight with no intention of driving. Her friend’s son became agitated as a result of methamphetamine withdrawal, which Ms Anderson became distressed by. She chose to drove home because no bus was available, and she believed a taxi would have been prohibitively expensive. The Judge concluded that driving was a result of the situation being unpleasant, not as a result of immediate danger or threat to safety.
[39] On the basis of that summary of the cases it is clear that there remains a range of views as to the application of s 81 and it cannot be said that the approach in Maniapoto has been displaced.
[40] The only Court of Appeal decision I was referred is R v Cameron.38 In that decision, the Court declined special leave to appeal on the question of whether s 10B of the Limitation Act 1950 applied to s 56(4) of the Land Transport Act such that the appellant’s previous convictions from 25 years before the instant offending could not be considered in proving that the offence was third or subsequent. The Court concluded that Parliament could not have intended for historical previous convictions not to be able to be proved for s 56(4) purposes. The Court also observed that s 56(4) is not intended to create a separate offence, but rather concerns the penalty available for a s 56(1) offence in the circumstances postulated in s 56(4).39 As such, previous convictions are an ingredient of the offence of s 56(1) but do not need to be proved for s 56(4). That decision does not concern whether the time that elapsed between the qualifying offences was a special reason under s 81.
My assessment
[41] I apply the three-step process initially set out in Martin v Auckland City Council40 and applied in Maniapoto v Police41 and some of the other cases cited above.
38 R v Cameron CA329/02, 29 November 2002.
39 At [5].
40 Martin v Auckland City Council, above n 19.
41 Maniapoto v Police, above n 6.
Are the particular circumstances capable of constituting special reasons at law?
[42] The special circumstances asserted here are a long gap (18 years) between the current offending and Mr Noblett’s previous drink-driving charge.
[43] Mr Blaschke put some reliance on 2018 amendments to the Land Transport Act, which changed the heading to s 81 and specifically set out in s 56 the key words of s 81. However, the amendments do not prohibit the time between offences being considered as a special reason or otherwise limit the application of the section. I do not think anything can be taken from those amendments — they do not change the words or the interpretation of s 81.
[44] As the Court of Appeal noted in R v Cameron,42 s 56(4) is not a separate offence, but concerns penalty. Justice Andrews applied that approach in Woolston v New Zealand Police,43 and concluded that previous convictions were not therefore part of the offence under s 60(3) of the Act (which has a similar scheme to s 56(4)) and previous convictions could not therefore constitute “special reasons relating to the offence”.
[45] I acknowledge that s 56(4) is not framed as a separate offence and that the previous offending referred to in s 56(4) relates to penalty. However, I think Ms Barclay’s reference to the provisions of the Criminal Procedure Act provides a helpful context to consider the question. Here, s 56(4) has the effect of modifying the offence itself (subss (1) and (2)), making it more serious offending. As a matter of practicality, when a defendant is charged with driving with excess breath alcohol, third or subsequent, it will always be necessary to provide the court with evidence as to the previous convictions in order to prove that the offending was third or subsequent. As in this case, such defendants will be charged under both s 56(1) and (4), not either subss (1) or (4) alone. That is because subs (1) is the offence of driving with excess breath alcohol simpliciter (that is, not third or subsequent) and subs (4) is the penalty applying to subs (1) when that offence under subs (1) is third or subsequent.
42 Above, n 38.
43 Woolston v New Zealand Police, above n 15.
Subsections (1) and (4) are inherently interlinked for the charge of driving with excess breath alcohol, third or subsequent.44
[46] That link between subss (1) and (4) will have consequences not only for the period of disqualification, but for other aspects of the particular sentence, including potential imprisonment. In Rewi v New Zealand Police,45 Cull J referred to Samson v Police,46 where Whata J identified a guiding range of starting points for third or subsequent excess breath alcohol offences. Justice Cull noted that in Samson:47
…both the length of time that has elapsed since the last drink driving convictions, and convictions for two or more drink driving offences in close succession are conceptualised as aggravating factors “for the purpose of assessing the start point for the offending”. It would be inconsistent to consider these factors as relevant to establishing the starting point of the offending, and then to fail to return to these factors again when evaluating the appropriate consequences for the offending.
[47] I respectfully agree with Cull J’s reasoning. For the purpose of the analysis required in this judgment, it is artificial to distinguish between subss (1) and (4). Any such distinction is not helpful for assessing whether special reasons relating to the offence can include a time gap between qualifying offences.
[48] In light of that, and having regard to the legislative purpose of s 56(4) (discussed below), I conclude that the gap between the previous offending and the third or subsequent offence is capable at law of constituting “special reasons relating to the offence”.
[49] In Anderson v New Zealand Police48 Wylie J noted that the special reason invoked must not conflict with the essential purpose of the statutory provision. Similarly, in the earlier case of New Zealand Police v Tuhou49 Miller J noted that the “special reasons” must be compatible with the policy of the legislation.
44 The same applies for driving with excess blood alcohol, third or subsequent, under subss 56(2) and (4).
45 Rewi v New Zealand Police, above n 11, at [38].
46 Samson v New Zealand Police [2015] NZHC 748 at [15].
47 Rewi v New Zealand Police, above n 11, at [38] (footnote omitted).
48 Anderson v New Zealand Police, above n 11, at [15].
49 New Zealand Police v Tuhou, above n 11, at [10].
[50] In my view, a finding that the time gap between second and third offences may at law constitute a special reason relating to the offence does not undermine the legislative purpose of s 56.
[51] That legislative purpose principally concerns deterring recidivist drink-drivers and preventing such drivers from driving for extended periods of time.
[52]In Maniapoto v Police, Winkelmann J commented:50
I consider that the fact that the two previous offences were committed some 20 years previously and both within a period of six days is in itself capable of amounting to “special reasons”. It can readily be ascertained by a contextual analysis of the legislation that the legislative intent behind the increased minimum period of disqualification under s 56(6) is an escalation of penalty to deter repeated drink driving. There may also be public safety considerations in the increased period of minimum disqualification; taking recidivist drink drivers off the roads for a longer period of time.
[53]In Rewi v New Zealand Police, Cull J discussed Maniapoto v Police, noting:51
… Any public safety considerations, such as taking recidivist drink drivers off the roads for longer periods of time, was not relevant in the circumstances as the defendant could not properly be characterised as a recidivist drink driver. This was prior to the enactment of s 65AC of the LTA.
…
I consider the legislative intent behind the increased minimum period of disqualification is to deter repeated drink driving, as well as the public safety reason of keeping recidivist drink-drivers off the roads for a longer period. I adopt the approach of Winkelmann J in Maniapoto. Ms Rewi cannot properly be characterised as a recidivist drink driver. I consider Ms Rewi does not pose a risk to the public to warrant disqualification period of one year and one day. A six-month disqualification period, being that imposed on first and second EBA offenders, 35 is an appropriate deterrent and penalty in the circumstances.
On the facts should Mr Noblett’s circumstances be regarded as special reasons?
[54] While I have found that, as a matter of law, previous qualifying offences being of an historical nature may constitute special reasons relating to the offence, an analysis of the particular circumstances is necessary in each case. As Wylie J said in Anderson, special reasons “must be of a sufficiently compelling nature to justify a
50 Maniapoto v Police, above n 6, at [20] and [22].
51 Rewi v New Zealand Police, above n 11, at [36] and [40] (footnotes omitted).
departure from the usual consequences” and they are unlikely to be established on the facts when all reasonable and possible alternatives have not been explored.52 Courts will not find special reasons lightly in the context of alcohol-impaired driving.53 Among the considerations in previous cases, particularly Maniapoto v Police, Woodward v New Zealand Police and Rewi v New Zealand Police, were the reason for the offender driving, whether alternatives were available and any changes the driver had made between the qualifying offences to their driving habits. These go to the assessment whether the offender is someone who cannot properly be considered a recidivist drink-driver contemplated by the legislation for a longer period of disqualification.
[55] I am not satisfied that the circumstances of Mr Noblett’s offending establish special reasons relating to the offence. Although there was a large temporal gap between Mr Noblett’s second and third qualifying offences — almost 20 years — I have assessed the circumstances of the offending as a whole. The circumstances are not sympathetic, unlike those in Maniapoto v Police and Rewi v New Zealand Police. Mr Noblett was not driving in emergency circumstances; he was driving home from the pub after drinking beer with a friend. Mr Noblett had driven to the pub, he says, to talk to a friend. I infer from that he did not have an intention of drinking alcohol. Nevertheless, having done so, other transport options were available for Mr Noblett to get home, including walking, as he acknowledges in his affidavit.
[56] It is also relevant to the second step of the assessment that Mr Noblett was convicted of an infringement offence for drink-driving on 10 September 2021 under s 56(1A). The previous case law referred to me does not consider the effect or relevance of infringement offences. Infringement offences come into a different category of offending,54 they are not an element of the offence of driving with excess blood or breath alcohol, third or subsequent. But the infringement offence does colour an assessment of Mr Noblett’s assertion that he has changed his behaviour in the intervening 18 year period between his fourth and fifth drink-driving charges. In the
52 Anderson v New Zealand Police, above n 11, at [15] and [16].
53 At [16], citing Maniapoto v Police, above n 6; Lower Hutt City v McAlpine [1972] NZLR 168 (SC); and Daniels v New Zealand Police [2015] NZHC 358 at [28].
54 Land Transport Amendment Act (No 2) 2014, s 5. Parliament separated driving with excess blood or breath alcohol into criminal and infringement offences in 2014.
light of the infringement offence I cannot conclude that Mr Noblett is no longer a recidivist drink-driver.
[57] It would offend the legislative purpose of deterring recidivist drink-driving and keeping such drivers off the roads for at least one year after their third or subsequent qualifying offence to conclude that in Mr Noblett’s case that there are special reasons relating to the offence to depart from the mandatory disqualification period.
Discretion to dispense with the minimum disqualification period
[58] Given my conclusion that the facts of this case do not establish a special reason relating to the offence, it is unnecessary to consider whether to exercise my discretion to dispense with the minimum disqualification under the third step.
Result
[59] The appeal is allowed. The sentence of six months’ disqualification from driving is set aside and replaced with a disqualification period of one year and one day, effective from the date of the original period of disqualification.
Gwyn J
Solicitors:
Crown Law | Te Tari Ture o te Karauna, Wellington Public Defence Service, Wellington
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