S v Police HC Dunedin Cri-2008-412-30

[2008] NZHC 1508

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2008-412-000030

S

v

POLICE

Hearing:         25 September 2008

Appearances: A Stevens for Appellant

R D Smith for Crown

Judgment:      25 September 2008

ORAL JUDGMENT OF HON. JUSTICE FRENCH

[1]      This is an appeal against sentence.

[2]      On 8 April 2008 the appellant, who was a first offender, was convicted in the District Court on one charge of driving with excess breath alcohol and one charge of dangerous driving.  He was sentenced to 200 hours’ community work concurrent on each charge, and disqualified for two years from driving (the two years being comprised of 12 months’ disqualification imposed cumulatively on each charge).

[3]      The facts before the sentencing Judge were as follows:

[4]      The  appellant  was  travelling  on  State  Highway  1  between  Clinton  and

Balclutha.  In an area of poor visibility the appellant caught up with, and overtook, a

S V POLICE HC DUN CRI-2008-412-000030  25 September 2008

vehicle travelling at about 100 kilometres per hour.  The appellant then caught up with another vehicle.  Again, in an area of poor visibility controlled by ‘no passing’ yellow lines, he overtook that vehicle, forcing an oncoming vehicle to take evasive action to avoid a head-on collision.   The appellant then veered needlessly to the wrong side of the road on at least two occasions.

[5]      The appellant later lost control of his vehicle on a sweeping right-hand bend, skidding to the wrong side of the road, causing another vehicle to take evasive action to avoid a head-on collision.  The appellant’s vehicle skidded off the road and came to rest on its side down a steep bank.

[6]      An evidential breath test revealed a level of 839 micrograms of alcohol per litre of breath – twice the legal alcohol limit for an adult.

[7]      The Judge described the driving as appalling and stated:

[8]       You have chosen not to offer evidence to support your account.   I am going to deal with you upon the basis of the summary.  You were clearly a drunk driver and that is the explanation for your appalling driving.  You put yourself and a number of other road users at risk.   You continued in dangerous manoeuvres in sequence.  Instead of stopping and pulling to the side of the road at least after you first got into difficulties.   This unlawful driving must be condemned by appropriate sentences.  I am not prepared to deal with you by way of fine.   You need to  be  off the road for some considerable time.   There are minimum mandatory disqualifications of six months on each charge which must be accumulated as a matter of law and I think you deserve at least double that now.

[8]      In contending the sentence was manifestly excessive, the appellant points out that first offenders appearing on a charge of driving with excess breath alcohol are typically sentenced to a fine and a period of disqualification.

[9]      In support of the appeal, Mrs Stevens also provided the Court today with a letter from the appellant’s employer, which suggests that if the appellant is unable to obtain a limited licence, he is in jeopardy of losing his job.

[10]     For its part, the respondent points out the appellant was not a typical first offender.  The driving was particularly serious, involving as it did three near misses

and a decision to keep driving, the driving only coming to an end because of the accident.

[11]     I accept that in none of the cases cited by the appellant was the driving as bad as the driving in the present case.  This all took place on the open road and it was only by good fortune that some innocent person was not seriously injured, or killed. I agree entirely with the District Court Judge that the driving was absolutely disgraceful.

[12]   On the other hand, it does appear the Judge was labouring under a misapprehension that he was required by law to impose cumulative periods of disqualification.

[13]     In fact, the correct position, as explained in Nicol v Police HC Auckland CRI-2005-404-000312, 3 October 2005, Heath J, is that while there is jurisdiction to impose cumulative periods of disqualification, the better and more principled approach is to make them concurrent, with the period of disqualification for the second  offence  being  longer  to  reflect  the  aggravating  features.     Normally, cumulative sentences would be justified where the two charges arose out of two separate transactions, which in this case they obviously did not.

[14]     Counsel have referred me to the decisions of Dayson v Police, HC Auckland

CRI-2008-404-000088, 10 June 2008, Winkelmann J; Hitchens v R (CA380/03, 25

March 2004); Blanco v Police HC Auckland CRI-2008-404-000072, 6 May 2008, Hansen  J;  Martin  v  Police  HC  Auckland  CRI-2008-404-000044,  6  May  2008, Hansen J; Collins v Police HC Hamilton AP100/02, Heath J; Overington v Police HC Auckland CRI-2006-404-000125, 12 February 2007, Harrison J;

[15]     I  have  also  reviewed  other  comparator  cases  involving  first  offenders: Wilkins v Police HC Christchurch CRI-2008-409-000008, 21 February 2008, Chisholm J; Mikaere v Police HC Dunedin AP75/91, 18 October 1991, Tipping J; and Alkhaldi v Police HC Christchurch A108/02, 29 October 2002, Panckhurst J.

[16]     Having reviewed all the authorities, I am first of all satisfied the Judge was entitled to deal with the matter by way of community service  rather  than  fine, because of the grossly irresponsible driving.

[17]     However, even taking into account the appalling driving, the number of hours of community work and the length of the disqualification does seem out of kilter.  In Wilkins, for example, 15 months’ disqualification was described as being at the highest end of the range, while in Mikaere, two years’ disqualification for a first offender also guilty of grossly irresponsible driving was considered by Tipping J as manifestly excessive.

[18]     I also consider there is some force in Mrs Stevens’ argument that the Judge does not appear to have given any credit for the mitigating personal factors.

[19]     I have therefore decided to allow the appeal.

[20]     The sentence of 200 hours’ community work is quashed and substituted with a sentence of 120 hours concurrent on both charges.

[21]     The period of disqualification of 12 months cumulative on each charge is quashed and substituted with a period of disqualification of six months on the drink driving charge, and a concurrent period of disqualification of 10 months on the dangerous driving charge.  That means the appellant will be effectively disqualified for a total period of 10 months.

Solicitors:

A Stevens, Dunedin

Crown Solicitor, Dunedin