Tindle v Police - [2016] NZHC 2093

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 Respondent

Judgment:

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Tindle v Police

Details

AGLC: Tindle v Police [2016] NZHC 2093
Case: [2016] NZHC 2093
Decision Date: 5 September 2016

CaseChat Overview and Summary

In the case of Tindle v Police, the appellant, Christopher Tindle, sought leave to appeal out of time the period of disqualification imposed on him for driving with excess breath alcohol. The appellant pleaded guilty to the charge in the District Court at Thames and was sentenced to supervision for 12 months, a prohibition on acquiring an interest in a motor vehicle for twelve months, and a disqualification from holding or obtaining a driver’s licence for five years. The appellant argued that the five-year disqualification was manifestly excessive, given the circumstances of the offending, which were not egregious. The level of alcohol in his blood was moderate, and the offending came to light through a random police stop. The respondent did not oppose the granting of leave to appeal out of time, acknowledging that the disqualification period was manifestly excessive.

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.

Orders