R v Police HC Wellington CRI 2010-485-75

[2010] NZHC 2055

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2010-485-75

BETWEEN  R

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         12 October 2010

Counsel:         L Ord for Appellant

M W Snape for Respondent

Judgment:      12 October 2010

ORAL JUDGMENT OF MILLER J

[1]      Ms R   appeals against a sentence of one year and one day’s disqualification imposed for a third or subsequent offence of driving with excess alcohol.  She was convicted and discharged for failing to stop and was also sentenced to 200 hours community work.  The appeal is concerned with the disqualification alone.

[2]      The facts are she drove a car at 2am in Courtenay Place and stopped at a green light.  Seeing this, a police officer ordered her to pull over, but she drove off. She was stopped some distance away.  Her alcohol reading was 610 micrograms per litre of breath.

[3]      The Judge imposed the minimum disqualification prescribed under s 56 of the Land Transport Act, which provides for a mandatory disqualification of more

than one year.  Section 81 of that Act provides that mandatory disqualification can

R V NEW ZEALAND POLICE HC WN CRI 2010-485-75  12 October 2010

be relaxed for special circumstances relating to the offence but not for special circumstances relating to the offender.

It does not appear to have been suggested in the District Court that there were any special circumstances relating to the offence that merited a lesser sentence.

[4]      On appeal, Ms R   effectively throws herself on the mercy of the Court, relying on her personal circumstances and the impact of the sentence upon her.  She deposes to the loss of not only a car driver’s licence but also two licence endorsements, for heavy and medium trucks.  She has already lost the opportunity to gain one driving job as a result.  Further, the period of disqualification means that she must re-sit these licences.   That is an expensive process, costing hundreds or even thousands of dollars.  She fears that she will not pass, for she would need to gain additional heavy transport driving techniques that are now required and her literacy is poor.   Had the Judge been made aware of these matters he might have been more lenient.  She also explains that she has suffered a difficult separation from the father of her eight children and is only now getting her life back on track.  She made an error of judgement when others urged her, as the most sober of her group, to get behind the wheel.  Her position is that she would willingly do more community work in exchange for a shorter period of disqualification.

[5]      The difficulty with this, as Ms Ord properly recognised, is that the grounds relied upon relate not to the offence, as the legislation requires, but to the offender. They simply do not allow the Court to reduce the sentence.   The plain legislative policy is that a recidivist offender’s personal circumstances cannot justify a lesser disqualification than the period imposed in this case.  That being so, it cannot be said that the Judge was wrong.  Nor can Ms R   complain about the need to re-sit her licence.  If she is unable to pass, she should not be on the road at all.

[6]      The appeal is dismissed.

Miller J

Solicitors:

Ord Legal, Wellington for Appellant

Luke Cunningham & Clere, Wellington for Respondent