R v Police HC Whangarei CRI 2007-488-9
[2007] NZHC 427
•3 May 2007
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CRI 2007-488-0009
R
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 2 May 2007
Appearances: Mr N Leader for appellant
Mr M Smith & Ms A L Hyndman for respondent
Judgment: 3 May 2007 at 3.00 pm
JUDGMENT OF WINKELMANN J
This judgment was delivered by me on 3 May 2007 at, 3.00 pm pursuant to Rule540(4) of the
High Court Rules.
Registrar/ Deputy Registrar
NS Leader, Barrister, Whangarei
Crown Solicitor, Whangarei
R V POLICE HC WHA CRI 2007-488-0009 3 May 2007
[1] The appellant was sentenced in the Whangarei District Court on 8 January
2007 following conviction for an offence under s 56(1) and (4) of the Land Transport Act 1998 having pleaded to one charge of driving with excess breath alcohol (third or subsequent conviction). The appellant’s breath level was 511 micrograms of alcohol per litre of breath. She had previously been convicted in relation to excess breath alcohol in 1991 (breath 500 micrograms) and in 2001 (breath 691 micrograms).
[2] Counsel appearing for the appellant in the proceedings before District Court Judge AJM Bouchier described the personal circumstances of the appellant. The Judge was advised in relation to the appellant:
She’s a mother of six children, they’re age, they range, they range in age from 10 to 23, all living at home except the oldest one. She’s undergoing counselling at the moment for alcohol and related issues but will be looking at rehab counselling on an out-patient basis with her counsellor stating in a month or so.
[3] The Judge said that she was satisfied that a sentence of community work was appropriate. She convicted the appellant and sentenced her to 120 hours community work and disqualified her from holding or obtaining a driver’s licence for 12 months and one day, the minimum period.
[4] This appeal was originally against both conviction and sentence. Counsel for the appellant confirms that the appeal against conviction is abandoned. The appeal against sentence is brought on the basis that the sentence was clearly excessive because given the personal circumstances of the appellant and the offending, it was inappropriate to order that the appellant be disqualified from holding or obtaining a driver’s licence but was rather appropriate to sentence her to an increased community based sentence. The appellant’s counsel says that there is no criticism of counsel appearing for the appellant in the District Court, nor of the District Court Judge. However, he submits that no application was made to the District Court Judge to consider substituting a community based sentence for the disqualification, and for this reason the District Court Judge was not fully appraised of the appellant’s personal circumstances. In this situation, and because this Court is now aware of
matters not before the District Court Judge, he argues it is appropriate that this Court exercise its discretion to consider the issue de novo.
[5] The circumstances surrounding the offending are that the appellant was stopped by the police at about 12.45 am on Saturday 25 November 2006 on Kamo Road, Whangarei, driving a Nissan motor vehicle. There was no irregularity detected in her driving. She was stopped pursuant to a random testing operation. She was spoken to and exhibited signs of recent alcohol intake. Breath test procedures were carried out and her breath was found to contain 511 micrograms of alcohol per litre of breath.
[6] As to the provisions regarding penalty, s 56(4) of the Act provides:
If a person commits a third or subsequent offence against subsection (1) or subsection (2) or [any of sections 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), the person commits an indictable offence and on conviction -
(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].
[7] That however is subject to s 94 of the Act which provides:
Substitution of community-based sentences
(1) This section applies if -
(a) The offender has previously been ordered on conviction for an offence to be disqualified from holding or obtaining a driver licence; and
(b) The court, having regard to -
(i) The circumstances of the case and of the offender;
and
(ii) The effectiveness or otherwise of a previous order of disqualification made in respect of the offender; and
(iii) The likely effect on the offender of a further order of disqualification; and
(iv) The interests of the public, -
considers that it would be inappropriate to order that the offender be disqualified from holding or obtaining a driver licence; and
(c) The court considers that it would be appropriate to sentence the offender to a community-based sentence in accordance with [Part 2 of the Sentencing Act 2002].
(2) Despite any provision of this Act that requires a court (in the absence of special reasons relating to the offence) to order a person convicted of an offence to be disqualified from holding or obtaining a driver licence, the court may instead make an order referred to in subsection (3) if this section applies.
(3) If the court sentencing an offender determines under this section not to make an order of disqualification, -
(a) The court must impose a community-based sentence on the offender; and
(b) The imposition of such a sentence does not limit or affect the power of the court to impose any other sentence for the offence that, in accordance with the provisions of the [Sentencing Act
2002], it may impose in addition to the community-based sentence;
and
(c) In determining the appropriate sentence to be imposed on the offender in respect of the offence, the court must take into account the gravity of the offence and the fact that the offender would otherwise have been liable to disqualification from holding or obtaining a driver licence.
…
(4) This section does not apply if -
(a) section 63 or section 65 applies; or
(b) the offender is prohibited from applying for a limited licence under section 103(2)(a), (b), or (d).]
[8] The police say that it can inferred that the District Court Judge did turn her mind to the provisions of s 94, because she had before her the personal circumstances of the appellant. There being no error in the District Court’s approach, the appeal can be dismissed. Alternatively, if it is accepted that the District Court Judge did not turn her mind to that provision, then it is conceded by the police that s 94(1)(a) is satisfied because the appellant has previously been ordered on conviction to be disqualified from holding or obtaining a driver’s licence. It is also accepted that s 94(1)(c) is satisfied given that the District Court Judge considered a community based sentence appropriate.
[9] The police concede that the issue for the Court is then whether s 94(1)(b) is satisfied.
[10] In relation to the s 94(1) discretion it is submitted for the appellant that the disqualification is causing great difficulty for the appellant and her family. The appellant sets out her family details at paragraph 10 of her affidavit filed in support of her appeal:
I am 41 years old. I live at 23 Puriri Street, Kamo, Whangarei. I rent this house. I have six children, with five of them living at home. The eldest is
23, she has three children and they all live with me. She rents her own place but she and her partner have had to move back with me so that she can drive for me. Her children are three, two, and a month old baby. The next eldest is 18 and he has recently moved out to work at a job up north, cleaning up after the floods. The next eldest is 16 years old. She is at Polytech. She does not have a licence. She is the one who is going to counselling at present. … The next child is 15. He is at Kamo High School. He does not have a licence. The next child is 14 years old. His is at Kamo High School. The next child is 9 years old. He is at Totara Grove Primary School.
[11] She says in addition that her 16 year old has been the victim of sexual abuse two years ago for which she has, until the disqualification, been receiving counselling. However, she is now unable to attend counselling because of the transportation difficulties caused by the disqualification. The eldest daughter of the family has had to move back home with her partner so that she can transport everyone to tech, school and work. The appellant says that the disqualification is having an adverse effect on her children, in particular her 16 year old who needs to go to counselling. Her 23 year old cannot continue to drive for the appellant and the rest of the children because she has her own three children to attend to. She is also paying rent for a place that she is now not living at. Finally, the appellant says that the family’s four bedroom house now has 11 people living there.
[12] The appellant’s counsel concedes that other considerations in the exercise of the discretion are the nature and seriousness of the offence, and interest of the public, However, the appellant’s counsel submits that it is significant that the offending did not involve any evidence of bad driving and that the breath alcohol, while above the legal limit, was not excessive. He says that it could more properly be described as being at a moderate level.
[13] I am satisfied that it is appropriate to consider this issue de novo because no application was made for an order under s 94 before the District Court Judge and I am satisfied that she did not turn her mind to the possibility of an order for community service in substitution for disqualification in the absence of such a submission. There is no reference to the section, or to the possibility of such an order by the Judge, as is to be expected in the circumstances.
[14] I accept the evidence that the effect of the disqualification is to cause difficulty to the appellant’s family. However, I do not accept that those difficulties are as insurmountable as the appellant claims. In particular I consider significant that the appellant’s failure to mention alternative transportation methods and why they are not available. The appellant resides in a city. It is not clear why the school age children cannot walk to school or use public transport.
[15] In relation to other commitments, it is also unclear why she and the family cannot access public transport to meet their transport requirements. It is also not clear on the evidence why it is that, although all members of the family have been able to make arrangements to attend their school commitments and work commitments, the 16 year old daughter is unable to continue to attend counselling. In short, I find the evidence of the appellant as to the extent of the difficulty unlikely and I do not accept it.
[16] I also take into account the effectiveness of previous orders of disqualification. Notwithstanding two previous disqualification orders, the appellant has reoffended. I do not see that as assisting the appellant with her appeal. This is not one of those cases where it is submitted to me that substituting a community based sentence for a disqualification will break “the circle of offending”.
[17] Even were I to accept that the disqualification is causing considerable hardship, I must balance against that the seriousness of the offending and the interests of the public. Disqualification fulfils an important deterrent function in relation to the drink driving range of offences, particularly in the case of repeat offenders. It also serves a road safety purpose. The interests of the public therefore
weigh heavily in the scale against substituting further community service for disqualification.
[18] In conclusion, although disqualification may continue to cause hardship to the appellant and her family, that is the inevitable consequence of the appellant’s own conduct, and the hardship is not such as to outweigh the public interest in the road safety and deterrent effects of disqualification. Accordingly, the appeal is dismissed.
Winkelmann J
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