IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2018-463-000076
[2018] NZHC 2397
BETWEEN WARWICK PAUL TIMBRELL
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 29 August 2018 Appearances:
C A Gentleman for Appellant S J P Davison for Respondent
Judgment:
12 September 2018
JUDGMENT OF COURTNEY J
This judgment was delivered by Justice Courtney on 12 September 2018 at 11.00 am
pursuant to R 11.5 of the High Court Rules Registrar / Deputy Registrar Date……………………
TIMBRELL v NEW ZEALAND POLICE [2018] NZHC 2397 [12 September 2018]
Introduction
[1] Warwick Paul Timbrell pleaded guilty to one charge of driving with excess breath alcohol (third or subsequent) on 3 May 2018.1 At sentencing on 1 August 2018, Judge Bidois refused Mr Timbrell’s application for a community-based sentence under s 94 of the Land Transport Act 1998. Instead, he disqualified Mr Timbrell from holding or obtaining a driver’s licence for 12 months and one day and fined him $700 plus costs.
[2] Mr Timbrell appeals the disqualification on the ground that the Judge took too narrow an approach to the scope of s 94 in concluding that it did not apply to Mr Timbrell’s case.
District Court decision
[3] Mr Timbrell was the subject of a random stop and produced a moderate breath alcohol level when tested (477). He had two previous convictions for driving with excess breath or blood alcohol.
[4] Conviction for a third of subsequent offence of driving with excess breath alcohol carries a mandatory disqualification of 12 months and 1 day. Mr Timbrell’s counsel sought a community-based sentence under s 94 on the basis that Mr Timbrell was liable to lose his employment if disqualified. Although he was not prohibited from obtaining a limited licence, the 28-day stand-down period would still result in him losing his employment. Loss of employment would cause financial hardship.
[5]The Judge refused the application, saying:
My approach to these matters, Mr Timbrell, is that I have recently had a number of applications filed under s 94 for drink drive. You are not a recidivist disqualified driver because you have not been disqualified for some time and previous disqualifications have been complied with. In my view, the s 94 is not specifically, but particularly, aimed at those who are on the treadmill of just continuously disqualified when further disqualifications have to be imposed at the end of an expiry date of a current qualification. This is not the case. These s 94 applications are made for drink driving, third or subsequent. Every time we have one we have to go through the s 94 exercise. I think that would be wrong in principle. I have denied or refused previous s 94
1 Land Transport Act 1998, s 56(1).
applications for drink driving and I do not see that this is the treadmill type case that s 94 was specifically aimed at which relates to the disqualified driver.
I accept that there is discretion or that you…
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