R v Police HC Wellington CRI 2006-485-105

[2006] NZHC 1094

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2006-485-105

R

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         19 September 2006

Appearances: P H Mitchell for Appellant

T J Gilbert for Respondent

Judgment:      21 September 2006

JUDGMENT OF MALLON J

This judgment was delivered by Justice Mallon on 21 September 2006 at 2.30 pm pursuant to r540(4) of the High Court Rules 1985.

Solicitors:

P H Mitchell, Solicitor, PO Box 29078, Wellington

T J Gilbert, Luke Cunningham & Clere, Office of the Crown Solicitor, PO Box 10357, Wellington

R V NEW ZEALAND POLICE HC WN CRI 2006-485-105 21 SEPTEMBER 2006 21 September 2006

Introduction

[1]      This is an appeal from an order of 12 months’ disqualification in respect of an offence under s 56 of the Land Transport Act 1998 (driving with excess breath alcohol).

The facts

[2]      The  appellant  is  19  years  old.    On  16  July  2006  he  was  driving  on Raumati Road,  Paraparaumu.    He  was  stopped  and  spoken  to  after  the  Police observed that his vehicle was overloaded with seven people.  He was asked to carry out a breath-screening test, followed by an evidential breath test, which returned a reading of 1,010 micrograms of alcohol per litre of breath.

The District Court decision

[3]      The appellant pleaded guilty. In sentencing the appellant, the Judge referred to the appellant’s guilty plea, the fact that this was his first offence, and the absence of any driving fault apart from the overloading of the vehicle, as mitigating factors. The offending was, however, aggravated by the level of alcohol (over two-and-one- half times the legal limit of 400 micrograms per litre of breath). The appellant was convicted, fined $900, ordered to pay $130 court costs and disqualified from holding or obtaining a driver’s licence for 12 months commencing from the date of sentence.

The appeal

[4]      The appellant submitted that his 12 months’ disqualification from holding or obtaining a driver’s licence was manifestly excessive for a first offender. It was said that this period was in addition to the 28 day suspension of the appellant’s licence at the time of the offence.   It was said that the usual starting point for a first time offender was six months’ disqualification.  Where the level of alcohol was high, a

period of eight to nine months’ disqualification was usual.  This was demonstrated by McEachen v Police [1995] 2 NZLR 251 (HC). In that case the Court had reviewed the sentences from a number of sentencing decisions. That review showed that the average disqualification for a high reading of alcohol was 9.35 months.

[5]      Reliance was also placed on Fitzi v Police [1998] 1 NZLR 124 and Finlayson v Police (HC, Whangarei, Cartwright and Laurenson JJ AP 15/98) where lesser periods of disqualification were imposed in circumstances involving high alcohol readings.

[6]      Reliance was also placed on Ministry of Transport v Graham [1990] 3 NZLR

249 as emphasising that the issue was not merely a matter of considering whether a penalty imposed is out of line with penalties imposed by other District Court Judges and that all relevant circumstances should be taken into account.   It was said that there were a number of mitigating circumstances in this case (not mentioned in the sentencing decision) that when taken into account showed that a 12 month period was not justified.  Mitigating circumstances were said to include that the appellant had arranged for a sober driver on the night in question but that person became intoxicated, that the car had a current warrant of fitness and was registered, that the appellant was co-operative with the police and that he expressed genuine remorse.  It was also said that the disqualification was particularly difficult for the appellant because he was required to travel early to his work and public transport was not readily available.

[7]      The respondent said that the 28 day suspension could be disregarded because it had in fact amounted to a five day suspension.  This was because the appellant had been sentenced five days after the offence had occurred.  In respect of the 12 month period the respondent also relies on McEachen.  It notes that, although the average period of disqualification was 9.35 months for high alcohol readings, the range from the review of sentences carried out in that case was six to 18 months.  In that case, the Court was considering an appeal by four first time offenders who had all pleaded guilty to breath and blood-alcohol charges and had co-operated with Police.  It was said that the circumstances of the fourth appellant (Mr Scott) in that case were most similar to those of the present appellant.   Mr Scott had been  fined $1,250 and

disqualified for 14 months on a reading of 1,047 micrograms per litre of breath.  On appeal his counsel submitted that the appropriate disqualification was less than 14 months.  The Court rejected this submission (at p 256):

In the case of the term of 14 months’ disqualification imposed on Mr Scott, as it was common ground that a term of 12 months’ disqualification would have  been  within  the  permissible  range  for  such  offending,  we  have concluded that it is not open to regard that penalty as “manifestly excessive” and his appeal is dismissed.

[8]      I  agree  with  what  was  said  in  Fitzi  that  the  guides  provided  by  other sentencing decisions cannot be applied rigidly as the circumstances of the offending and the offender must be considered.  I note that the circumstances of the offender in Fitzi were quite different from the circumstances of the appellant.  I agree with the respondent that of the four appellants in McEachen the circumstances of Mr Scott are most similar to the appellant in this case.

[9]      As was said in McEachen, a term of 12 months’ disqualification is within the permissible range for a first offence where the excess breath alcohol was at such a high level.  Having taken into account all of the mitigating factors relied on by the appellant,  I  am  satisfied  that  the  disqualification  period  was  not  manifestly excessive.   If the disqualification is causing the appellant difficulties with his employment then, as the respondent said, the option of applying for a limited licence is available to him.

Result

[10]     The appeal is dismissed.

Mallon J