Shrimpton v Police HC Christchurch Cri-2011-409-20

[2011] NZHC 396

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2011-409-000020

PENELOPE ELIZABETH LAURA SHRIMPTON

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         1 April 2011

Appearances: S Bailey for Appellant

D Elsmore for Respondent

Judgment:      1 April 2011

ORAL JUDGMENT OF CHISHOLM J

[1]      The appellant pleaded guilty to a third charge of drink driving and was fined

$1000.  In addition she was disqualified for 18 months and her car was confiscated. This is an appeal against length of the disqualification.

[2]      The appellant is 58 years of age.  She has two previous convictions for drink driving, one in 1991 and one in 2008.   The level in 1991 was 600.  Although the record does not show the level in 2008, it is Ms Bailey’s understanding that it was in the region of 600.  On the latest occasion it was 593.  The appellant was stopped at a road block, and there are no issues about the standard of driving.

[3]      This  appeal  alleges  that  the  disqualification  of  18  months  is  manifestly excessive and that it is out of line with decisions of this Court.  Ms Bailey noted that

SHRIMPTON V NEW ZEALAND POLICE HC CHCH CRI-2011-409-000020 1 April 2011

under s 56 of the Land Transport Act 1998 the minimum period of disqualification for a third or subsequent conviction jumps from six months to “more than” a year.

[4]      Ms Bailey submitted:  although during submissions the Judge had indicated that he was going to disregard the first offence because of its age (20 years ago), the

18 month disqualification did not reflect that  factor;   the Judge was obliged to impose the least restrictive outcome and a 50% increase on the minimum disqualification did not represent that outcome; this was a random stopping with no aggravating features; the alcohol level was relatively low; and the appellant’s vehicle has been confiscated.

[5]      In reply Ms Elsmore noted that the norm for a third or subsequent conviction is somewhere between 12 and 18 months. While she acknowledged that the sentence on this occasion was at the higher end of the available range, she submitted that it was nevertheless within that range.   Ms Elsmore also submitted that leniency had been extended to the appellant by virtue of the imposition of a fine rather than a more severe sentence.

[6]      When considering this matter I have taken into account a number of decisions of this Court, Blackler v NZ Police,[1] Brough v NZ Police,[2]  Martin v NZ Police,[3]

Rogers v NZ Police,[4] Lawrie v NZ Police,[5]  Reid v NZ Police[6]and Driver v NZ

Police[7].    Although the circumstances of all of those cases differ in some respects, they do lead me to the conclusion that in all the circumstances the disqualification in this case was beyond the range reasonably available to the Judge.

[1] Blackler v NZ Police HC Hamilton CRI-2005-419-159 16 December 2005

[2] Brough v NZ Police HC Invercargill CRI-2008-425-38 10 March 2009

[3] Martin v NZ Police HC Auckland CRI-2008-404-44 6 May 2008

[4] Rogers v NZ Police HC Hamilton CRI-2010-419-44 9 July 2010

[5] Lawrie v NZ Police HC Christchurch, CRI-2010-409-190 21 October 2010

[6] Reid v NZ Police HC Wellington, CRI-2010-485-75 12 October 2010

[7] Driver v NZ Police HC Whangarei, CRI-2010-488-45 21 October 2010

[7]      One of the pivotal factors is the historic nature of the first offending and the Judge’s  indication  that  he  would  ignore  that  conviction  for  the  purposes  of sentencing.  That does not mean to say, of course, that for the purposes of s 58 this

was anything other than a third conviction or that a disqualification of “more than”

12 months needed to be imposed.   What it means is that for the purposes of disqualification  the  third  conviction  must  have  been  reasonably  close  to  the minimum disqualification period of “more than” 12 months for a third conviction.

[8]      I agree with Ms Bailey that the least restrictive outcome required by s 8 (g) of the  Sentencing Act  2002  did  not  permit  an  increase  of  50%  on  the  minimum disqualification.   Taking all circumstances into account including, the decisions mentioned above, the age of the first conviction, the Judge’s indication that it would be ignored for sentencing, the fact that there was a fine rather than a more severe penalty, and the confiscation of the appellant’s motor vehicle, I have reached the conclusion that a disqualification of 14 months would have been appropriate.

[9]      The appeal is allowed.   The disqualification of 18 months is quashed and replaced with a disqualification of 14 months.

Solicitors:

S Bailey, Christchurch

Raymond Donnelly & Co, Christchurch