T v Police HC Rotorua Cri-2010-463-9

[2010] NZHC 162

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2010-463-000009

BETWEEN  T   

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         23 February 2010

Appearances: M J Hine for Appellant

S L Wootton for Respondent

Judgment:      23 February 2010

ORAL JUDGMENT OF VENNING J

Solicitors:           Crown Solicitor, Rotorua

Families Matter Law Practise (M Hine) Rotorua

T   V NEW ZEALAND POLICE HC ROT CRI-2010-463-000009  23 February 2010

[1]      On 8 February 2010, in the District Court at Rotorua the appellant pleaded guilty to driving with excess breath alcohol on a third occasion.   Judge McGuire convicted and sentenced the appellant to 13 months’ disqualification, 150 hours’ community work and six months’ supervision.  As a condition of the supervision the appellant was directed to undertake any course or counselling for alcohol abuse as may be directed by a probation officer.  He was also given a final warning.

[2]      The appellant appeals against that sentence on the grounds that:

•         the disqualification was excessive in all the circumstances;

•the sentence of supervision was unnecessary and, when taken with the sentence of community work, was excessive;  and

•the sentence imposed was inconsistent with the analysis of the type detailed in R v Clotworthy.1

[3]      The appellant had previously been convicted of driving with excess blood alcohol in 1981 and 1992.  On this occasion, on 28 November 2009, he was stopped by the police.  An evidential breath test gave a positive reading of 696 micrograms of alcohol.    His  explanation  was  that  he  had  consumed  beer  and  was  driving  an associate home.   Apart from the previous driving with alcohol offences he had a careless use conviction in 1999.

[4]      In  sentencing  the  Judge  noted  that  the  appellant  was  a  bus  driver  by profession and that he should have been acutely aware of the need for compliance of road traffic laws.   The Judge also noted that this was a third offence, taking into account there was a period of 18 years since the last one.  The Judge said the reading of 696 put the appellant in the category of a person who was very dangerous to be on the road.

1      R v Clotworthy (2003) 20 CRNZ 439.

[5]      There is nothing in the issue taken with the period of disqualification and the failure  of  the  Judge  to  carry  out  an  analysis  as  set  out  in  Clotworthy.    The experienced District Court Judge was obviously aware of the decision of Clotworthy. It is not necessary for a Judge in a busy list Court to expressly refer to that case.  The important point is that that case identified a number of considerations for sentencing offenders who come before the Court as multiple drink driver offenders and the Judge addressed the relevant factors in this case.  The considerations can include the breath or alcohol blood alcohol level, length of time elapsed since the last drink driving conviction, manner of driving and whether the offender was disqualified, guilty pleas, previous sentences and response, record for other types of offending, remorse, mitigating personal or family circumstances.

[6]      It  is  apparent  from  the  Judge’s  sentencing  notes  he  was  aware  of  the appellant’s circumstances as a bus driver and the potential effect on his employment. The Judge also properly took into account the length of time since the last driving offence and also recorded the high level of breath alcohol concentration on this occasion.

[7]      Section  56(4)(b)  of  the  Land  Transport  Act  1998  directed  the  Court  to disqualify the appellant for more than one year.  That section was amended as from

2006.  It had previously referred to one year or more.  It is apparent that Parliament intended to direct Judges to disqualify for more than the 12 month period.  This is also consistent with the amendment at the same time to s 83 requiring a person disqualified for more than one year to re-sit their licence.

[8]      Given the level of the appellant’s reading in this case the disqualification of

13 months was appropriate and cannot, by any stretch of the imagination, be described as excessive let alone manifestly excessive.

[9]      Mr Hine also submitted that the sentence of supervision was unnecessary.  He accepted it seemed to have been imposed with the intention to ascertain if there was an alcohol issue but, absent a report or advice to that effect he suggested it was unnecessary, particularly taken with the community work sentence.

[10]     The maximum penalty available to the Court was a term of two years or a fine not exceeding $6,000.  The Judge was, with respect, right to take into account the passage of time that had elapsed after the earlier convictions in deciding not to impose a custodial sentence.

[11]     The sentence of community work was appropriate to address the concern the community has in relation to such offending.  But the sentence of supervision was also open to the Judge.   He clearly was satisfied it was required to reduce the likelihood of further offending through the appellant’s rehabilitation in particular in relation to the use of alcohol.   Although there has been a lengthy period of time between convictions it is a serious matter for anyone to be before the Court on a third occasion of drink driving.  That is particularly so with a level as high as 696 without any reasonable excuse at all for driving on this occasion.   The offending and the appellant’s previous history suggest that the appellant, despite his previous convictions, has  not  learnt  his  lesson  and  does have  an  issue  with  alcohol.    A sentence of supervision directed at counselling in relation to alcohol was entirely appropriate.

[12]     There is no way that the sentence or any components of it can be described as manifestly excessive.

[13]     The appeal is without merit.  It is dismissed.

Venning J