Smith v Police

[2014] NZHC 2101

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2014-435-000004 [2014] NZHC 2101

BETWEEN

PAUL VICTOR SMITH

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	2 September 2014
Counsel:	J K W Blathwayt for Appellant I R Murray for Respondent
Judgment:	2 September 2014

JUDGMENT OF COLLINS J

Introduction

[1]      This judgment explains why I am allowing Mr Smith’s appeal against the length of his period of disqualification from driving which was imposed upon him by Judge Walsh in the Masterton District Court on 5 June 2014.

[2]      Mr Smith was sentenced to 250 hours’ community work and was disqualified from holding or obtaining a driver’s licence for a period of 12 months and one day.1

[3]      Mr Smith has appealed on the ground that the disqualification period of

12 months and one day imposed by Judge Walsh was manifestly excessive.

[4]      Mr Smith is a farmer.  He was granted a limited licence, which allows him to travel over his property along the road which bisects his farm, to and from a block

1      Land Transport Act 1998, s 56(1).  Maximum penalty of three months’ imprisonment or a fine

not exceeding $4,500.

SMITH v NEW ZEALAND POLICE [2014] NZHC 2101 [2 September 2014]

located  northeast  of  Featherston,  a  farm  supplies  dealer  in  Featherston  and  to

Tauherenikau to carry out his community work.

[5]      Mr  Smith  says  that  his  limited  licence  hinders  him  from  travelling  into Masterton  or  Martinborough  for  stock  sales.     Although  the  limited  licence ameliorates the disqualification, it remains a significant issue in terms of Mr Smith’s normal farming activities.

[6]      Of principle concern is that the period of disqualification imposed by Judge

Walsh means Mr Smith needs to re-sit his driver’s licence upon the completion of the

12 month and one day period of disqualification.

[7]      Mr Smith has one previous conviction for driving with excess breath alcohol in 2007.

Background

[8]      On 9 May 2014 at 11.35 pm Mr Smith was driving in Featherston.  He was stopped by the police due to the manner of his driving.  Police carried out breath test procedures  and  Mr  Smith  returned  a  positive  evidential  breath  test  of  919 micrograms per litre of breath.

[9]      On 7 July 2014 Mr Smith applied for a limited licence.  That application was granted by Judge Morris.

Judge Walsh’s decision

[10]     Judge Walsh noted Mr Smith’s reading was 919 micrograms of alcohol per litre  of  breath  and  that  on  the  previous  occasion  he  was  convicted,  in  2007, Mr Smith’s reading was 889 micrograms of alcohol per litre of breath.

[11]     Judge  Walsh  took  into  account  Mr  Smith’s  early  guilty  plea  and  his

acceptance of responsibility for his offending.

[12]     Judge Walsh convicted Mr Smith and then imposed the penalties which I

have described in paragraph [2] of this judgment.

Legal principles governing an appeal

[13]     Prior to the commencement of the Criminal Procedure Act 2011, appeals against sentence were governed by s 121 of the Summary Proceedings Act 1957. Section 250 of the Criminal Procedure Act 2011 now governs sentence appeals from the District Court to the High Court.  Section 250(2) of the Criminal Procedure Act

2011 provides:

(2)      The first appeal court must allow the appeal if satisfied that—

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

(b)      a different sentence should be imposed.

[14]     The Court of Appeal has since confirmed that s 250(2) was not intended to change the approach taken to sentence appeals under the now repealed s 385(3) of the Crimes Act 1961 and s 121(3) of the Summary Proceedings Act 1957.  Not every error in a sentence will provide the foundations for a successful appeal.  The types of error that are contemplated by s  250(2)(a) of the Criminal Procedure Act 2011 include:2

(1)Section 250(2) reflects a synthesis or rationalisation of the previous Crimes Act and Summary Proceedings Act provisions to provide a single test for all sentence appeals.

(2)The previous approach similarly required both the identification of an error and a need for the appeal court to be satisfied that a different sentence “should” be imposed.

(3)The practical effect of preserving the previous approach is that the appeal  court  does  not  start  afresh  nor  simply  substitute  its  own opinion for that of the original sentencer.  Rather, it must be shown that  there  was  an  error  “whether  intrinsically,  or  as  a  result  of

additional material submitted” on appeal.3    If there is an error of the

2      Tutakangahau v R [2014] NZCA 279 at [26]-[36].

3      R v Shipton [2007] 2 NZLR 218 (CA) at [139].

requisite  character,  the  court  will  then  form  its  own  view  of  the appropriate sentence.

(4)In assessing whether an alleged error is of the requisite character, it will be helpful to consider whether the error is material.

(5)Although s 250(2) makes no express reference to the concept of a manifestly excessive or inadequate sentence, those concepts are long- standing  and  should  continue  to  be  utilised  when  considering s 250(2).

(6)The  focus  in  sentence  appeals  remains  on  whether  the  sentence imposed is within range rather than the process by which the sentence was reached.  In exceptional cases, it may nonetheless be necessary to correct a sentence that is within range (for example, where there has been an arithmetical error).

Analysis

[15]     The relevant subsections of s 56 of the Land Transport Act 1998 (the Act)

state:

(1)       A person commits an offence if the person drives or attempts to drive a motor vehicle on a road while the proportion of alcohol in the person’s breath, as ascertained by an evidential breath  test  subsequently  undergone  by  the  person  under section 69,  exceeds  400  micrograms  of  alcohol  per  litre  of breath.

…

(3)       If a person is convicted of a first or second offence against subsection (1) or (2), –

(a)      The maximum penalty is imprisonment for a term not exceeding 3 months or a fine not exceeding $4,500; and

(b)The court must order the person to be disqualified from holding or obtaining a driver licence for 6 months or more.

[16]     The purpose of disqualifying drivers convicted of driving with excess blood or breath alcohol is to protect other road users rather than to punish the defendant.4

Consistent with s 8(g) of the Sentencing Act 2002, those who impose periods of disqualification should impose the least restrictive period of disqualification that is reasonably available.5

[17]     In my assessment, the sentence Judge Walsh imposed upon Mr Smith was manifestly excessive for two reasons.

[18]     First, the imposition of a 12 month and one day disqualification period was the typical period of disqualification for a person convicted of a third offence of driving with excess breath or blood alcohol.  The period of disqualification in this case  was,  however,  above  the  normal  range  of  nine  to  12  months’ periods  of disqualification normally imposed on persons convicted of a second offence of driving with excess breath or blood alcohol.6

[19]     Second, the imposition of a 12 month and one day disqualification would mean Mr Smith would have to re-sit his driver’s licence upon the completion of the disqualification period.   Having regard to Mr Smith’s personal circumstances, the disqualification period would effectively be more punitive than protective of other road users.

[20]     Judge Walsh  was  justified  in  being  concerned  about  the  level  of  breath alcohol found in Mr Smith’s breath on the two occasions he has been convicted.  For this reason, I will impose a period of disqualification at the higher end of the range normally imposed on those convicted of a second breath or blood alcohol offence.

Conclusion

[21]     The appeal against the period of disqualification is allowed.

4      Husband v Napier City Council [1979] 1 NZLR 317 (CA) at 320; McEachen v Police [1995] 2

NZLR 251 (HC) at 254.

5      Eteuati v Police HC Wellington CRI-2003-485-91, 16 December 2003 at [15], citing Fleming v

Commissioner of Transport [1958] NZLR 101 (SC).

6      Sherley v Police [2012] NZHC 1499; Blanco v Police HC Auckland CRI-2008-404-72, 6 May

2008.

[22]     Mr Smith is disqualified from holding or obtaining a driver’s licence for a

period of 11 months from 5 June 2014.

D B Collins J

Solicitors:

WCM Legal, Carterton for Appellant
Crown Solicitor, Wellington for Respondent