Timoti v Police HC Wellington CRI 2011-485-11

[2011] NZHC 400

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2011-485-11

PUIHI TIMOTI

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         5 April 2011

Counsel:         V C Nisbet for Appellant

[               ] for Respondent

Judgment:      4 April 2011

ORAL JUDGMENT OF RONALD YOUNG J

[1]      Mr Timoti   has   three   previous   convictions   for   offences   against   the breath/blood alcohol legislation.  In 1986 he was convicted of driving with an excess breath alcohol level.  In 1992 he refused an officer’s request for a blood specimen and then later that year he was convicted again of driving with an excess breath alcohol.

[2]      The current offence occurred on 3 November 2010, some 18 years later after the last conviction.  He eventually pleaded guilty to that offending and was convicted and sentenced to 80 hours community work and disqualified for driving for one year and one day.  He now appeals against his sentence.  He does not claim his sentence was manifestly excessive.   He could hardly do so the disqualification was for the

minimum period and the 80 hours community work, a very modest period.

PUIHI TIMOTI V NEW ZEALAND POLICE HC WN CRI 2011-485-11 4 April 2011

[3]      He says, however, that because of the 18 year gap between this offending and his previous offending “this is a situation where special reasons arise and those could assist the appellant”.

[4]      The special reasons provisions set out in s 81 of the Land Transport Act 1998 provides as follows:

81       Provisions relating to mandatory disqualification

(1)       If any provision of this Act (other than section 63) requires a court to disqualify a person from holding or obtaining a driver licence [or transport service licence] for a period not less than the specified minimum period, the court must order that the person be disqualified accordingly unless for special reasons relating to the offence it thinks fit to order otherwise.

(2)       Nothing in any provision referred to in subsection (1) or in section [65] restricts any other duty or power of the court to disqualify a person  from  holding  or  obtaining  a  driver  licence  [or  transport service licence] or to impose any other penalty.

(3)       This section is subject to section 94 (which relates to community- based sentences).

[5]      The  special  reasons  must  relate  to  the  offending  and  not  the  offender. Mr Timoti’s past record are matters relating to the offender and not this particular offence.  He cannot, therefore, invoke the provisions of s 81 of the Land Transport Act 1998.

[6]      For full reasoning on this point see my judgment in Dean John Merry v

New Zealand Police.[1]

[1] Dean John Merry v New Zealand Police HC Nelson CRI 2009-442-07, 19 May 2009.

[7]      For the reasons given, therefore, the appeal must be dismissed.

Ronald Young J

Solicitors:

V C Nisbet, Barrister & Solicitor, PO Box 10 909, Wellington, email:  [email protected]

S C Carter, Luke Cunningham & Clere, PO Box 10 357, Wellington, email:  [email protected]