Rayner v Police

[2018] NZHC 2276

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2018-463-000063

[2018] NZHC 2276

BETWEEN

KIRSTEN LEE RAYNER

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	29 August 2018
Appearances:	A R Allerton for the Appellant M S Jenkins for the Respondent
Judgment:	30 August 2018

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie On 30 August 2018 at 2.30 pm

Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

Solicitors/counsel:

LMC Law, Tokorua

Crown Solicitors, Rotorua

RAYNER v NEW ZEALAND POLICE [2018] NZHC 2276 [30 August 2018]

Introduction

[1]    On 3 July 2018, Judge Hollister-Jones, in the District Court at Tokoroa, found the appellant, Ms Rayner, guilty of one charge of careless use of a motor vehicle causing injury contrary to s 38(1) of the Land Transport Act 1998 (the Act).1 On the same day, the Judge sentenced Ms Rayner to 100 hours of community work and disqualified her from driving a motor vehicle for a period of six months.2

[2]    Ms Rayner appeals both the conviction and the sentence, on the ground that the Judge erred both in law and in fact.

[3]The Crown opposes the appeal.

Background facts

[4]    Sometime between 3.30 pm and 4.00 pm on Monday 18 September  2017, Ms Rayner was driving her Mitsubishi motor vehicle east on State Highway 5 near Tirau.

[5]    Ms Rayner turned right across the westbound lane to get to her driveway. She turned into the path of an oncoming motor vehicle being driven by a Mr Charteris. Mr Charteris’ vehicle collided with Ms Rayner’s vehicle. Both were extensively damaged and Mr Charteris suffered significant injury. He had to be cut from his vehicle and he was flown to Waikato Hospital. He suffered neck injuries, broken ribs and a bruised spinal cord.

[6]    In explanation, Ms Rayner stated that she did not see Mr Charteris’ vehicle when she made her decision to turn, as it was raining heavily and the sky was dark.

[7]    Mr Charteris’ vehicle was grey in colour. He did not have the headlights turned on at the time of the collision.

1      New Zealand Police v Rayner [2018] NZDC 15067.

2      New Zealand Police v Rayner [2018] NZDC 15340.

The District Court’s decisions

(a)The conviction decision

[8]    Judge Hollister-Jones started his oral judgment by setting out the factual background. He accepted that “the driving conditions at the time were difficult”.3 The Judge stated that the Crown had to prove beyond reasonable doubt that Ms Rayner’s actions in turning her vehicle across the state highway and failing to see the victim’s vehicle “fell below the standard of a reasonably prudent driver”.4 He stated that the “only issue for the Court to determine in respect of the charge is whether the prosecution have proved carelessness”.5

[9]    The Judge recorded that as a result of agreement between the prosecution and the defence, the prosecution evidence proceeded by way of formal statements.6 He received formal statements from Mr Charteris, the police constable who attended the scene, and a Ms Moody, a pharmacist in Putaruru. Ms Rayner read her brief and she was cross-examined. The formal statements of other defence witnesses – a Dr Stout, who is Ms Rayner’s psychiatrist, and a Mr Stedall, an optometrist – were also admitted by consent.

[10]   The Judge then turned to address a medical issue raised by Ms Rayner.7 At the time, she was prescribed with medication, clonazepam, at a dose of 0.5 milligrams to be taken up to twice a day as needed. This medication has side effects, such as drowsiness and impaired concentration. Dr Stout’s evidence was that Ms Rayner was tolerating the medication well and was medication compliant. On the morning of the offending, Ms Rayner had filled a prescription for the medication at a pharmacy in Putaruru. In error, she was dispensed clonazepam tablets with a dosage of two milligrams, as opposed to the prescribed 0.5 milligrams. This was not picked up by the pharmacy at the time. When Ms Rayner returned home, she realised that the tablets that had been dispensed to her were a different colour from her normal tablets. She called the pharmacy and spoke to the pharmacist, Ms Moody.

3      New Zealand Police v Rayner, above n 1, at [1].

4 At [2].

5 At [5].

6 At [3].

7 At [6].

[11]   The Judge recorded that there was a dispute as to whether Ms Rayner had taken any of the tablets that morning. Ms Rayner gave evidence that she had taken two of the tablets, one outside the pharmacy shortly after she received the wrong dosage tablets and the other when she got home. Ms Moody’s evidence was that she asked Ms Rayner in the course of their telephone conversation if she had taken any of the two milligram tablets, and that Ms Rayner stated that she definitely had not done so.

[12]   Judge Hollister-Jones was satisfied that Ms Moody did ask Ms Rayner whether she had taken any of the two milligram tablets and that Ms Rayner had told her that she had not.8 He noted that the dispensing error was a serious issue for the pharmacy with potential medical and legal implications.9 He also noted Ms Moody’s evidence that she made a contemporaneous note of her conversation with Ms Rayner and that her formal statement was taken from that file note.10

[13]   The Judge went on to  consider  what  the  position  would  have  been  on  Ms Rayner’s evidence. He reviewed Dr Stout’s evidence and the assumption made by the doctor that Ms Rayner’s ability to make rational decisions about driving would have been impaired to a notable degree if she had taken two of the wrong dosage tablets. He considered this assumption against the facts as he found them and concluded that there was no material consequence or influence on what occurred between 3.30 pm and 4.00 pm as a result of any excess consumption of clonazepam.11

[14]   The Judge then turned to whether Ms Rayner’s decision to turn right across the state highway was prudent. He accepted, on the basis of the traffic crash report and Ms Rayner’s evidence, that “the driving conditions were difficult and that as a result of the downpours, it was difficult to see”.12 He concluded as follows:

[19]  … Ms Rayner said that it was difficult to see, so difficult to see that  she could not see where the edge of the road ended and she had slowed because it was so difficult to see and she was worried about the pressure of the drivers behind her. In these very difficult driving conditions on a busy state highway, I am satisfied that a reasonably prudent driver would not have attempted to make a right-hand turn across the state highway.

8 At [10].

9 At [10].

10 At [10].

11 At [13].

12 At [18].

[15]   The Judge also noted that Mr Charteris was driving a dark grey vehicle and did not have any headlights on.13 He accepted that “[c]learly, Ms Rayner did not see this vehicle”.14 Nevertheless, he concluded:

[21]     … Ms Rayner’s evidence is clear that she knew it was difficult to see.

… She had slowed considerably and this means that her responsibilities at that time were even greater. This means, as I have found, she should not have attempted the right-hand turn.

Judge Hollister-Jones was, therefore, satisfied that the charge was proved, and he entered the conviction accordingly.15

(b)The sentencing decision

[16]   Judge Hollister-Jones assessed Ms Rayner’s level of carelessness “as being at the lower end of moderate”.16 He accepted that she was very remorseful.17 He also noted that she has a “reasonably significant driving history with three convictions for careless use of a motor vehicle with the last one being in 2005”.18 He observed that she has other historic convictions under the Act for excess breath alcohol and driving while disqualified.19

[17]   The Judge rejected a submission that there were “special reasons” so directly connected to the act of carelessness that otherwise mandatory disqualification was not appropriate under s 81 of the Act.20 He also rejected a submission under s 94 of the Act that he should not disqualify Ms Rayner from driving because of her personal circumstances, namely her reliance on a licence.21

[18]   As noted, the Judge imposed an end sentence of 100 hours of community work and disqualification from driving for six months.22

13 At [20].

14 At [20].

15 At [23].

16     New Zealand Police v Rayner, above n 2, at [1].

17 At [1].

18 At [3].

19 At [3].

20 At [4].

21 At [4].

22 At [5].

Approach on appeal

Appeals against conviction

[19]   Pursuant to s 232(2) of the Criminal Procedure Act 2011, an appeal against conviction must be allowed if the Court is satisfied that:

(a)the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred; or

(b)a miscarriage of justice has occurred for any reason.

A miscarriage of justice is any error, irregularity, or occurrence in or in relation to or affecting the trial that:23

(c)has created a real risk that the outcome of the trial was affected; or

(d)has resulted in an unfair trial or a trial that was a nullity.

[20]   The Supreme Court, in Sungsuwan v R, said that a “real risk” is “a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone wrong”.24 Not every departure from good practice renders a trial unfair.25 The departure must instead be “so gross, or so persistent, or so prejudicial, or so irremediable” that the Court must quash the decision.26

[21]   An appeal against conviction proceeds by way of rehearing.27 This Court must consider all the matters that were before the trial Judge. Ultimately, the Court must reach its own decision.

23     Criminal Procedure Act 2011, s 232(4).

24     Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730 at [110].

25     Condon v R [2006] NZSC 62, [2007] 1 NZLR 300 at [78].

26     At [78]; citing Randall v R [2002] UKPC 19, [2002] 1 WLR 2237 at [28].

27     Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].

Appeals against sentence

[22]   Section 250(2) of the Criminal Procedure Act provides that an appellate Court must allow an appeal against sentence if it is satisfied that:

(a)for any reason, there is an error in the sentence imposed on conviction; and

(b)a different sentence should be imposed.

In any other case, the Court must dismiss the appeal.28

[23]   A sentence may be set aside where it is manifestly excessive.29 Whether a sentence is manifestly excessive depends on the end sentence, not the process by which the sentence was reached. The Court will not intervene where the sentence is within range. But, if the Court determines that the sentence imposed is manifestly excessive, it will form its own view of the appropriate sentence.30

Submissions

[24]   As to the conviction decision, Mr Allerton, for Ms Rayner, submitted that Judge Hollister-Jones erred in law by applying the incorrect legal test. He submitted that the Judge identified the test for carelessness as the decision to turn right across the path of an oncoming vehicle. He submitted that the correct legal test for carelessness for a change in direction is that of “failing to keep a proper lookout”.  Mr Allerton further submitted that the Judge erred by finding that, contrary to the expert medical evidence, no material consequence flowed from the incorrect dosage of clonazepam being consumed prior to the accident. He also submitted that the Judge erred by putting the evidence of the optometrist, Mr Stedall, as to the environmental conditions at the time to one side.

[25]   Mr Jenkins, for the Crown, submitted that the Judge applied the correct legal test. He argued that Ms Rayner seeks to unduly narrow the applicable test and further

28     Section 250(3).

29     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [33].

30     Tutakangahau v R, above n 29, at [30].

submitted that the factual findings challenged by Ms Rayner were open to the Judge on the available evidence.

[26]   As to the sentencing decision, Mr Allerton submitted that Judge Hollister-Jones erred in fact and law in declining Ms Rayner’s applications pursuant to ss 81 and 94 of the Act. Mr Jenkins, on the other hand, submitted that it cannot be said that the Judge erred in imposing the sentence noted above.

Analysis

Carelessness

[27]   Section 8 of the Act provides that a person may not drive a vehicle carelessly or without reasonable consideration for other persons. Under s 38(1) of the Act, a person who operates a vehicle on a road carelessly or without reasonable consideration for other persons, and by that act or omission causes injury to or the death of another person, commits an offence.

[28]   Whether a person was driving carelessly is a question of fact. The key issue for a finding of liability under s 38(1) of the Act is whether the defendant exercised the degree of care and attention that a reasonable and prudent driver would have exercised in the circumstances.31 As Mander J recently explained:32

[12] … It is not necessary in order to constitute carelessness for there to  have been negligence, rather it is a failure to exercise the degree of care and attention that a reasonable and prudent driver would exercise in looking after his or her own safety. To make such a determination the Court must have regard to the actions of each of the motorists involved.

(Citations omitted)

[29]   The standard of care is objective.33 It is not related to an individual driver’s proficiency or experience.34

31     Huang v Police [2016] NZHC 1271 at [12]; citing Simpson v Peat [1952] 2 QB 24 at 28. See also

Love v Police [2012] NZHC 2952 at [22].

32     Huang v Police, above n 31.

33 At [12].

34     Love v Police, above n 31 at [22]. See also Brookers Law of Transportation (online looseleaf ed, Brookers) at [LT8.05].

[30]   As noted, the Judge  considered  that  the  prosecution  had  to  prove  that  Ms Rayner’s action in turning her vehicle across the state highway and failing to see Mr Charteris’ vehicle fell below the standard of a reasonably prudent driver.

[31]   Mr Allerton accepted that this statement was correct, but he went on to argue that the actus reus of the prosecutor’s case against Ms Rayner was that she failed to keep a proper lookout when she turned across the state highway.

[32]   I am satisfied that the Judge identified, and applied, the correct legal test. The overriding issue in this case was whether Ms Rayner exercised the degree of care and attention that a reasonable and prudent driver would have exercised in the circumstances when she turned across the state highway. It was not, as Mr Allerton suggested, whether Ms Rayner failed to keep a proper lookout. The charge was one of careless use – not some hypothetical offence of failing to keep a proper lookout35 – and the duty to keep a proper lookout is a fundamental obligation on all road users.36

[33]   Judge Hollister-Jones recorded that the accident occurred on “a busy state highway with a 100 kilometre per hour speed limit and no significant shoulder”.37 He noted that Ms Rayner was making a right-hand turn from the state highway into her driveway. He accepted that as a result of the weather at the time, driving conditions were difficult and that it was difficult to see.38

[34]   These matters were relevant. I also accept that Mr Charteris’ failure to turn on his lights was relevant. It made it more difficult for Ms Rayner to see his vehicle, particularly given the weather conditions. But, given the conditions at the time, a reasonable and prudent driver should have taken extra care and made certain that no vehicle was coming the other way before making a turn across the state highway.

[35]   Ms Rayner failed to do this. She knew she was driving in difficult conditions. It was her own evidence that it was difficult to see. Indeed, she said that she could not see the edge of the road.   She knew she was on a busy state highway.   She said  that

35     R v Slater [1997] 1 NZLR 211 (CA) at 216.

36     King-Turner v Police HC Nelson AP5/99, 6 July 1999.

37     New Zealand Police v Rayner, above n 1, at [14].

38 At [18].

she was worried about traffic approaching from behind her. On a busy state highway, it is always likely that vehicles will be coming from the opposing direction. She was intending to turn across oncoming traffic. Given the conditions at the time, essentially Ms Rayner took the chance that there were no vehicles coming from the opposite direction when she turned across the highway. Her actions in taking that chance fall below the standards of a reasonable and prudent driver.

[36]   The law is quite clear. A driver whose vision is affected must take all reasonable steps to avoid a collision with other persons or objects lawfully on the road, even if this involves stopping altogether, and a driver who fails to take appropriate steps can be convicted of careless driving, or, if the degree of fault is sufficiently great, of reckless or dangerous driving.39 By way of example, in R v Pegler, the appellant argued that he should not have been convicted for careless driving causing injury on the basis of sun strike.40 He had turned right out of a supermarket carpark, at low speed, and hit two pedestrians crossing the road. He claimed that his vision was obscured at the time by the glare of the sun and that he did not see the pedestrians. The Court of Appeal held as follows:

[21] The appellant’s argument - that it is consistent with the exercise of reasonable care to drive on the road in the immediate vicinity of a shopping centre where pedestrians are to be expected without knowing precisely that the way is clear - is simply untenable … To risk bringing the power and weight of a motor vehicle into collision with a pedestrian, when there is the option of simply stopping or indeed remaining stationary and lowering the sun visor before moving forward, is wholly unacceptable.

[37]   In my judgment, it cannot be said that Judge Hollister-Jones erred in stating, that in the circumstances of this case as he found them to be, “a reasonably prudent driver would not have attempted to make a right-hand turn across the state highway”.41

Medication

[38]   As noted, Ms Rayner put in evidence the mistake by the pharmacy in Putaruru in prescribing to her pills of the wrong dosage. Mr Allerton submitted – by reference

39     Strawbridge v Mason [1939] NZLR 877 (CA) at 897-898; Police v Robertson (1945) 4 MCD 407;

Police v James (1951) 7 MCD 384.

40     R v Pegler CA214/03, 10 November 2003. See also Gregory-Hunt v Police HC Auckland CRI- 2004-404-36, 27 May 2004.

41     New Zealand Police v Rayner, above n 1, at [19].

to s 64 of the Act – that this explained Ms Rayner’s actions. He accepted that she was not charged with “drugged” driving under s 62 of the Act, but he argued that the principle and spirit of the legislation in respect of defences involving the impairment through the inadvertent consumption of drugs, should remain.

[39]   Mr Jenkins argued that s 64 of the Act applies to specific and identifiable offences, and that it does not apply to offending under s 38(1). He argued that if Parliament had intended the defence to apply, it would have said so. In any event, he argued that Judge Hollister-Jones addressed the claim of impairment advanced by Ms Rayner, and that he was firm in his conclusion that the medication, if taken, had no material consequence or influence on her careless use of the motor vehicle.

[40]Section 64(1A) of the Act provides as follows:

(1A) It is a defence to proceedings for an offence against section 57A(1) or 62(1B) if the court is satisfied that the person has consumed the relevant qualifying drug—

(a)in accordance with—

(i)a current and valid prescription written for that person by a health practitioner; and

(ii)any instructions from a health practitioner or from the manufacturer of the qualifying drug; or

(b)because it was administered by a health practitioner, provided that the person complied with the instructions (if any) that the health practitioner has given.

[41]   I agree with Mr Jenkins that the section does not apply to the offending alleged in this case under s 38(1) of the Act. I also agree with him that in any event the Judge addressed the issue.

[42]   As the Judge noted, in her statement, Ms Moody said that she asked Ms Rayner whether she had taken any of the tablets of the wrong dosage. Ms Moody said that Ms Rayner’s reply was that “she definitely had not”. Ms Moody documented the phone call on a file note after the call, as well as filling out a full three-page incident report the next day. As the Judge noted:

[10] … This was a serious issue for the pharmacy with potential medical  and legal implications and the pharmacist says that she made a note of this conversation in the electronic patient file and her evidence is drawn from that note.

He queried why Ms Rayner would lie to the pharmacist when she was otherwise acting in a “very conscientious way” that day; he considered that Ms Rayner would have disclosed that information if she had taken any.42

[43]   Judge Hollister-Jones recorded that he was  satisfied  that  the  pharmacist, Ms Moody, had asked Ms Rayner whether she had taken any of the wrong dosage tablets and that Ms Rayner told her that she had not done so.43

[44]   The Judge faced difficulties in dealing with this issue. Ms Moody was not called for cross-examination. Her formal statement came in by consent. However, unfortunately, although Ms Rayner was cross-examined, she was not asked about her assertion in her written brief of evidence read in Court that she had taken two of the wrong dosage pills – one shortly after she picked up the prescription from the pharmacy and another a little later when she got home. This left the Judge in a difficult position; neither Ms Moody nor Ms Rayner had been challenged as to their conflicting assertions.

[45]   Perhaps for this reason, the Judge went on to consider whether it would have made any difference had Ms Rayner taken the wrong dosage pills as she asserted.

[46]The Judge summarised the evidence of Dr Stout:

[12] Dr Stout says that it is difficult to accurately describe the extent to which a person would become impaired on four milligrams of clonazepam, but she would assume that after a sudden increase from one to four milligrams, a person would experience noticeable drowsiness and other effects, such as impaired concentration and co-ordination. That seems a reasonable statement. Then the doctor says that the onset of clonazepam can take up to an hour and a person would become aware of impairment within an hour. The doctor says it is difficult to accurately comment on whether a person would be able to make rational decisions to drive, but she says she would assume that making rational decisions about driving would be impaired to a notable degree. However, that statement of opinion has to be considered against the events that day.

42 At [11].

43 At [10].

[47]   The Judge then set out the evidence of Ms Rayner’s behaviour post the alleged taking of the tablets.44 He noted that during the period between taking the medication and the accident, Ms Rayner:45

(a)had a sleep (this was not unusual – she was working long hours on a nearby farm);

(b)drove 25 minutes to the farm, finished the milking and attended to the calves;

(c)drove 25 minutes back to her home; and

(d)made a series of decisions as she approached her driveway.

The Judge considered that none of these actions suggested that Ms Rayner was subject to cognitive impairment at the time.

[48]   In any event, the Judge found that there was no material consequence or influence on what occurred as a result of the excess consumption of clonazepam.46

[49]   The Judge did not make a definitive finding the one way or the other as to whether Ms Rayner had taken the incorrect dosage of clonazepam. Rather, his finding was that there was no material consequence on what occurred as a result of any excess consumption of clonazepam. This finding was clearly open on the evidence.

[50]   To an extent, Ms Rayner’s evidence that she took two pills prior to working and driving on the day in question, is a two-edged sword. The evidence was that the pills were labelled with a warning recording that they may cause sleepiness.   If     Ms Rayner took four times her prescribed dosage on the day in question, and was aware of that as her evidence acknowledges, then one would have thought that she should not have driven at all.47 The Judge referred to this briefly. He noted that the

44 At [13].

45 At [13].

46 At [13].

47     See Hoeta v Ministry of Transport HC Auckland AP29/91, 19 April 1991.

label on the bottle would have created a greater obligation upon Ms Rayner when she knew she had effectively taken four times the dose.48 He went on to observe, however, that on the facts, there was no material consequence or influence on what occurred as a result of the excess consumption of clonazepam.49

Driving conditions

[51]   At trial, Ms Rayner called evidence from Mr Stedall, an optometrist specialising in low light vision rehabilitation. As Judge Hollister-Jones explained:

[21] … Mr Stedall tested Ms Rayner’s eyesight and found it to be normal. Mr Stedall’s evidence is to the effect that visibility can be reduced in heavily overcast days creating dusk-like conditions in which there is insufficient illumination or contrast and, as a result, the human eye is unable to see objects. This means that in these conditions, it is almost impossible to distinguish vehicles. Obviously, I accept that Mr Stedall has the requisite expertise to provide this evidence. However, Ms Rayner’s evidence is clear that she knew it was difficult to see. She knew that because she could not see the edge of the road and where the drainage ditch was. She had slowed considerably and this means that her responsibilities at that time were even greater. This means, as I have found, she should not have attempted the right-hand turn.

[52]   I agree with Mr Jenkins that Mr Stedall’s evidence was rather beside the point. The Judge accepted Ms Rayner’s evidence about the poor driving conditions at the time, even though this evidence was inconsistent with Mr Charteris’ evidence of the prevailing conditions. On the evidence which the Judge accepted, it was Ms Rayner’s act of trying to cross the state highway which was careless – not any difficulty in seeing the oncoming vehicle. On the Judge’s findings, the conditions were such that Ms Rayner should not have chanced her arm and attempted to cross the road at all.

[53]   I am satisfied that the Judge did not err. The Judge was entitled to accept on the basis of the traffic crash report and Ms Rayner’s evidence that it was extremely difficult to see.50 He was equally entitled to draw the conclusion that in those circumstances, Ms Rayner’s decision to turn across the state highway was careless.

48     New Zealand Police v Rayner, above n 1, at [13].

49 At [13].

50 At [18].

Sentence appeal

[54]   Pursuant to s 38(2) of the Act, if a person is convicted of an offence against s 38(1), he or she is exposed to a maximum penalty of imprisonment for a term not exceeding three months, or a fine not exceeding $4,500. In addition, the Court must order that he or she be disqualified from holding or obtaining a driver’s licence for six months or more. The imposition of a mandatory disqualification under the subsection is subject, however, to s 81.51

Section 81

[55]Section 81 of the Act provides as follows:

(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 relates to community- based sentences).

[56]   Judge Hollister-Jones found that there were no “special reasons that were so directly connected to the act of carelessness that means that the strict criteria under s 81 are made out”.52

[57]   Mr Allerton asserted that there were special reasons relating to the offence, namely the medication issue and the very bad driving conditions at the time.

[58]A “special reason” has been defined as:53

… a mitigating or extenuating circumstance, not amounting in law to [a] defence to the charge, yet directly connected with the commission of the

51     Section 38(3).

52     New Zealand Police v Rayner, above n 2, at [4].

53     R v Crossen [1939] NI 106 at 112.

offence, and one which the Court ought properly to take into account when imposing punishment.

As was explained in Anderson v Police:54

[15] Special reasons “embrace only factors of particular or exceptional character”. The reasons must arise from the circumstances in which the offence was committed or the manner of its commission as a whole. Personal circumstances are not relevant, except to the extent that they influence the events leading up to the commission of the offence, or a part and parcel of the offending itself. The special reason must be of a sufficiently compelling nature to justify a departure from the usual consequences. The special reason must not conflict with the essential purpose of the statutory provision.

(Citations omitted)

[59]   Given Judge Hollister-Jones’ finding that any taking of the clonazepam had no material influence on Ms Rayner’s driving, it cannot be said that this was a special reason relating to the offending. It was not directly related to the commission of the offence.

[60]   As for the driving conditions at the time, the Judge took those into account. As I have noted, he effectively concluded that they meant that additional caution was required and that Ms Rayner failed to exercise that extra caution. The driving conditions went to Ms Rayner’s carelessness and were not of themselves a special reason relating to the offence which justified departing from the requirement for mandatory disqualification in the event of a conviction under s 38.

Section 94

[61]Section 94(1) of the Act provides:

(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

54     Anderson v Police [2016] NZHC 942.

(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.

[62]Judge Hollister-Jones stated:55

[4] … Section 94 exists to provide a community-based sentence for defendants who are on a cycle of driving offending in repeat disqualifications and is essentially a circuit breaker, whereas you have not offended against the Land Transport Act for some time. The provisions of s 94 are not applicable in this situation.

[63]In Wilson v Police, Dobson J stated:56

[12] Section 94 should only justify a variation from the norm where the personal circumstances of the offender, and in particular the rehabilitative prospects, justify affording the offender an opportunity to break the cycle of circumstances contributing to the recidivist offending.

[64]   Mr Allerton submitted that the Judge erred in declining to apply s 94 and that he failed to have regard to the wide application of the section. Mr Jenkins was prepared to accept that the wider approach to the application of s 94 applies.57 He nevertheless argued that the section did not apply in the circumstances of this case.

[65]   Ms Rayner has a number of previous driving related convictions commencing in the early 1990s. None of her convictions are particularly recent, however. The last were in 2007. Moreover, her previous offending is largely different in character. Her prior convictions relate almost entirely to driving with excess breath alcohol or driving whilst disqualified. She has three prior convictions for careless driving – one in 1991, one in 1996 and one in 2005. I cannot see that there was a cycle of recidivist offending

55     New Zealand Police v Rayner, above n 2.

56     Wilson v Police [2014] NZHC 3028.

57     As suggested by Woodhouse J in Beeston v Police [2012] NZHC 1064 at [24].

to break. Nor is there anything to suggest that Ms Rayner has any relevant rehabilitative prospects. The issue of recidivist driving related offending was not in issue given Ms Rayner’s criminal history.

[66]   This is nothing to persuade me that the Judge erred in rejecting the application under s 94.

Conclusion

[67]The appeals against both conviction and sentence are dismissed.

Wylie J