Police v Tuhou HC New Plymouth CRI 2010-442-9

[2011] NZHC 477

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI 2010-442-9

BETWEEN  NEW ZEALAND POLICE Appellant

ANDEDWARD DENA TUHOU Respondent

Hearing:         12 May 2011

Counsel:         AWM Britton for Applicant

T Bolstad for Respondent

Judgment:      12 May 2011

ORAL JUDGMENT OF MILLER J

[1]      The Police appeal with leave of the Solicitor-General under s 115A of the Summary Proceedings Act 1957 against Mr Tuhou’s sentence of 6 months disqualification for his ninth offence of driving with excess breath or blood alcohol. He was  also sentenced  to 40 hours community work, which  sentence  has been completed and is not appealed.

[2]      For the offence of driving on a third or subsequent occasion with excess alcohol the legislation prescribes a maximum sentence of two years imprisonment or a fine of $6,000, and a mandatory minimum disqualification of at least 12 months. The mandatory minimum disqualification is subject to s 81(1), which provides that the Court must impose the specified minimum unless for special reasons relating to the offence it thinks fit to order otherwise.   The issue on appeal is whether the District Court Judge was right to find that such reasons existed.

[3]      Mr Tuhou was stopped for a random breath test by the Police at 9:10 pm on

15 December 2010.   He exhibited signs of recent alcohol consumption and breath

NEW ZEALAND POLICE v TUHOU HC NWP CRI 2010-442-9 12 May 2011

tests were carried out.   His reading was 792 micrograms of alcohol per litre of breath, almost twice the limit.  He said he had been at after work drinks and had been travelling to work to pick up an item from his truck.

[4]      He is 49 years old and is employed as a road worker.  The summary of facts says he has eight previous EBA convictions though seven are shown in his criminal history:  1993 (breath level of 668), 1993 (breath level of 982), 1990 (breath level of

500), 1989 (breath level of 600), 1987 (breath level of 750), 1986 (blood level of

189), 1984, and 1982.   He has $1,008.35 in fines outstanding.   He also has an extensive list of other convictions:  six violent or sexual offending convictions, 10 dishonesty convictions, and 26 convictions for breach of orders (including 15 convictions driving while disqualified convictions).

[5]      The pre-sentence report described Mr Tuhou as having a quiet and well- ordered home life.  He lives with his partner of 25 years, their adult daughter and her

2 year old son.  He is committed to his partner.  The house and section that they rent is well-maintained.  He is foreman of a work group which paves footpaths in the city, a position he has held for five years.  He does not have a harmful level of alcohol use and has not used cannabis for many years.  His decision to drive was an impulsive one; he did not consider his alcohol consumption.  He strongly regrets the offending. He had been indefinitely disqualified but regained his licence in 2006.   Since he entered his forties he has matured and now makes a more positive contribution to the community.   He has successfully attended alcohol counselling in the past and has generally committed himself to the wide range of sentences he has been subject to. He has served sentences of community work and is generally seen as a punctual and good worker.  He is assessed as having a low risk of re-offending.

[6]      The Judge noted that Mr Tuhou pleaded guilty at an early stage.  The test was random (meaning, I take it, that there was no driving fault), but his reading was quite high.   Mr Tuhou had a troubled past but has largely settled down, holding a supervisory position at his work, where he is well thought of.  This was a significant improvement.  The Judge formed the view that community work was appropriate;  it was 17 years since his last conviction for drink driving so he “could almost be called a first offender”.

[7]      He also considered that this was a s 81 special considerations case so he need not impose the mandatory one year disqualification.  He reasoned that the offending exhibited  a  lack  of  aggravating  features,  the  test  was  a  compulsory  one,  and Mr Tuhou pleaded guilty early.

[8]      Section  56(4)  of  the  Land  Transport  Act  provides  that  for  a  third  or subsequent offence the Court “must order the person to be disqualified from holding or obtaining a driver licence for more than one year”.   However, that mandatory disqualification is subject to s 81, which I have quoted above.

[9]      Although the Judge imposed community work, it is not suggested that this is a  case  to  which  s  94  of  the Act  applies.    That  section  further  provides  that  a community-based sentence under Part 2 of the Sentencing Act 2002 may be passed in  substitution  for disqualification  in  certain  circumstances,  notwithstanding any provision of the Act that requires a Court, in the absence of special reasons relating to the offence, to order a minimum period of disqualification.  The Court must be satisfied that it would be inappropriate to order disqualification, having regard to the circumstances of the case and the offender, and the effectiveness or otherwise of a previous order of disqualification, and the likely effect on the offender of a further disqualification, and the interests of the public.   I observe that in Blake v Police, Neazor J discussed the relationship between ss 81 and 94, holding that if the mandatory disqualification applies then it must be imposed unless for special reasons relating to the offence the Court decides not to make the order.   If there are no special reasons, so that the order must be made, attention may turn to s 94 and the

possibility of a community-based sentence in lieu of disqualification.[1]

[1] Blake v Police HC Nelson T8/02 31 May 2002, Neazor J.

[10]     The first question for a Court which is called upon to assess whether special reasons exist under s 81 is whether the particular circumstances of the case are capable of constituting special reasons.[2]     The special reasons must relate to the

offence, and be compatible with the policy of the legislation.   The Court must

recognise that disqualification is not merely a punishment but a means of protecting the public from further offending.[3]

[2] Martin v Auckland City Council HC Auckland M692/83, 13 May 1983, Eichelbaum J.

[3] McEachen v Police [1995] 2 NZLR 251.

[11]     The leading case on special reasons is Lower Hutt City v McAlpine.[4]   Beattie J there accepted that special reasons must be special to the offence, not the offender. As it was put by Richardson J in Basile v Atwill, a fisheries case, special reasons must “relate to the facts involved in or connected with the commission of the offence in the particular case”.[5]

[4] Lower Hutt City v McAlpine [1972] NZLR 168 (SC)

[5] Basile v Atwill [1995] 2 NZLR 537 (CA) at 539

[12]     There is a difference of opinion among High Court Judges about whether the age of previous disqualifications may amount to special reasons.  The preponderance of view, which I accept, is that previous convictions are personal to the offender, so cannot amount to special reasons.[6]

[6] Maniapoto v Police HC Rotorua CRI 2008-463-1, 18 April 2008; Maranui v Police HC Wanganui CRI 2009-483-9, 1 April 2009; Merry v Police HC Nelson CRI 2009-442-7, 19 May 2009.

[13]     I sympathise with the Judge’s desire to recognise the mitigating factors and Mr Tuhou’s rehabilitation.  It was open to him to conclude that the public does not need protection from Mr Tuhou.   But for the reasons just given, the age of the previous disqualifications could not amount to special reasons relating to the offence. Nor do the other reasons relied upon, notably lack of impairment as manifested in absence of driving fault, amount to special reasons.[7]

[7] Lower Hutt City v McAlpine (above) at 172.

[14]   Accordingly, the appeal must be allowed.   The sentence of six months disqualification is quashed and a sentence of 12 months’ and one day’s disqualification is substituted.

Miller J

Solicitors:

Crown Solicitor’s Office, New Plymouth for Appellant