IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI 2016-419-32 [2016] NZHC 2093
BETWEEN CHRISTOPHER SEAN TINDLE
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 31 August 2016 Counsel:
P Borich for Appellant
J E Tarrant for RespondentJudgment:
5 September 2016
JUDGMENT OF DUFFY J
This judgment was delivered by me on 5 September 2016 at 2.00 pm pursuant to
Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Solicitors / Counsel:
Paul Borich, Barrister, Manukau City
Crown Solicitor, Hamilton
TINDLE v NEW ZEALAND POLICE [2016] NZHC 2093 [5 September 2016]
[1] On 7 January 2014 the appellant, Christopher Tindle, pleaded guilty in the District Court at Thames to one charge of driving with excess breath alcohol. He was sentenced to supervision for 12 months; ordered not to acquire an interest in a motor vehicle for twelve months; and disqualified from holding or obtaining a driver’s licence for a period of five years.
[2] Mr Tindle now seeks leave to appeal out of time the period of disqualification imposed on him. For reasons which will become clear when dealing with the appeal, the respondent did not oppose the granting of leave to appeal out of time. I am satisfied that the circumstances warrant Mr Tindle being granted leave to appeal out of time, and accordingly leave is granted.
[3] Mr Tindle submits that the five year disqualification was manifestly excessive. The circumstances of the offending were not egregious. In his case the offending came to light through him being randomly stopped by the police. The level of alcohol in his blood was moderate, being 124mg/100mL of blood in comparison to the (then) legal limit of 80mg/100mL of blood. Mr Tindle has three previous convictions for this type of offending, those being in 1995, 2003 and 2010. The previous offences all involved higher levels of excess blood alcohol. He has also been convicted in respect of two further traffic offences, though they were not alcohol-related.
[4] The respondent has very properly and responsibly recognised that the period of disqualification is not consistent with comparable cases, and so it has “acknowledged that the 5 year period of disqualification imposed was manifestly excessive in the circumstances.” This is also the reason why the respondent did not oppose leave to appeal being granted out of time.
[5] I am grateful to the respondent for making this concession. Had it not done so, it is a conclusion that I would have reached in any event.
[6] Counsel for both parties helpfully referred me to a number of relevant authorities.1 I do not propose to discuss all of those in depth here. However, it is
1 See Wilson v Police HC Rotorua CRI-2005-463-81, 2 December 2005; Barron v Police HC
useful to summarise a few of those cases to give a general impression of sentencing levels in relation to this type of offending.
[7] In Fairbrother v Police,2 the appellant had an excess breath alcohol level of
558mg/L.3 He had two previous convictions…
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CaseChat Overview and Summary
The court considered the legal issues involved in determining the appropriate period of disqualification for driving with excess breath alcohol. The court noted that the disqualification period should be proportionate to the severity of the offending and the offender's history. The court referred to several authorities, which suggested that offending such as Mr Tindle’s generally attracts disqualifications of between two to three years. The court found that the five-year disqualification period imposed on Mr Tindle was out of line with comparable cases.
The court found that while Mr Tindle may have significant mental health issues, there was nothing to suggest that these issues made him more of a risk to public safety than someone without them. The court considered that a two-year period of disqualification was appropriate for Mr Tindle's circumstances.
The court allowed the appeal against the period of five years' disqualification and imposed a period of disqualification of two years. Such disqualification would take effect from the date when the disqualification was originally imposed, being 21 January 2014.
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