v v Police HC Auckland CRI 2009-404-219

[2009] NZHC 937

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2009-404-219

BETWEEN  V

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         31 August 2009

Counsel:         V Heather for Appellant

S Herdson for Respondent

Judgment:      31 August 2009

(ORAL) JUDGMENT OF POTTER J

on appeal against sentence

Solicitors:           V Heather, P O Box 40658, Upper Hutt 5140

Crown Solicitor, P O Box 2213, Auckland 1140

V V NEW ZEALAND POLICE HC AK CRI 2009-404-219 31 August 2009

Introduction

[1]      V   pleaded guilty in the District Court at Manukau on 12 May

2009 to a charge under s 56(1) of the Land Transport Act 1998 (“the Act”) that he drove a motor vehicle when his breath alcohol level exceeded 400 micrograms of alcohol per litre of breath.

[2]      The summary of facts on the basis of which Mr V   entered his guilty plea states that the evidential breath test result was 709 micrograms of alcohol per litre of breath.   Mr V   was sentenced in the District Court to 120 hours community work.  He was disqualified from driving for eight months.  A subsequent application to suspend the disqualification pending appeal was declined.

[3]      It is common ground, and the sentencing Judge’s notes record, that the charge was amended from a third drink driving charge to a drink driving charge simpliciter because while Mr V   has previous drink driving convictions in 1990 and 2003, the earlier of those did not count for the “third or subsequent” excess breath alcohol provisions of the Act.

[4]      Mr V   now appeals against the disqualification on the grounds that: a)       Special reasons under s 81 of the Act exist to not disqualify him; b)       The period of disqualification was manifestly excessive.

Background facts

[5]      On Friday 13 March 2009 at 9.20 p.m. Mr V   was the driver of a motor vehicle on St George Street, Papatoetoe.  He was stopped by Police on Huia Road, Papatoetoe.   He underwent breath test procedures which produced a result of 709 micrograms of alcohol per litre of breath.  The explanation he gave to the officers who stopped him was that he had only had six cans of beer.

[6]      In sentencing Mr V   in the District Court Judge Moore had this to say in relation to special reasons under s 81 at [3]:

Even on the most favourable view of your explanation, there was nothing special about this at all.   You were at a party.   You had had too much to drink and still drive, and you had your car with you.  You say you got a call from home that your daughter was not very well, and there is some support for that in the sense that it is clear from what counsel has given me that the following day she had to go to the doctor.  But so far as I can see the effect of that call was not that she was taken for treatment that night, there is no suggestion of that.  All that happened was you came home from the party a bit earlier and a bit more sober than you would otherwise have done.  Clearly your arrangement was it was always contemplated you were going to drive home from the party.

[7]      He continued at [6]:

This is really, when it is boiled down, just a typical after-party exercise, only you got caught a bit earlier at night.

[8]      At [4] the Judge referred to previous convictions for male assaults female and assault with a weapon in 2006 and domestic assault in 2007 and said the previous history of drink driving does not stand by itself.   He considered the appellant’s ability to pay a fine at the appropriate level.  He rejected that as not workable and imposed 120 hours community work, which is not the subject of appeal.

[9]      As to disqualification, the Judge said at [9]:

Third time up, even some of them a while ago, there is no way I can come down to the minimum period of disqualification, and you will be disqualified from driving for eight months.  … I am sorry it has got to be that way, but you chose to drive.

Relevant statutory provisions : s 56(1)(b) and s 81 of the Land Transport Act

[10]     Section 56(1) provides that it is an offence to drive if the evidential breath test  exceeds  400  micrograms  of  alcohol  per  litre  of  breath.    Subsection  (3)(a) provides  a  maximum  penalty  of  up  to  three  months  or  a  fine  of  $4,500  and subsection (b) says that the Court must order disqualification for six months or more. Pursuant to subsection (6) the mandatory disqualification period is subject to s 81.  It is s 81 which is particularly emphasised on appeal.  However, I note in passing that

the penalty provisions of s 56 make it abundantly clear how seriously Parliament regards this type of offending.

[11]     Section  81  provides  that  the  Court  must  order  disqualification  for  the minimum specified period:

… unless for special reasons relating to the offence it thinks fit to order otherwise.

It is important to note that the special reasons must relate to the offence, as distinct from the offender.

[12]     Mr Heather submitted that the decision of the Court about whether special reasons exist under s 81 is not a matter of judicial discretion but a matter of fact requiring judicial assessment.

Submissions

[13]    In very helpful and competent submissions, Mr Heather referred to the judgments of the Supreme Court in Austin, Nichols & Co v Stichting Lodestar [2008]

2 NZLR 141, and Rajamani v R [2007] NZSC 68 and to Palmer v New Zealand Police WN HC CRI 2008-485-112 6 October 2008, Simon France J.   In oral submissions he also referred in the same context to the Court of Appeal decision in R v Hughes [2008] NZCA 546.

[14]     Ms Herdson for the Crown submitted that the provisions of s 81 enable the Court to exercise a discretion.   She referred to the mandatory direction at the beginning of s 81 that the Court must order disqualification, which she said can be contrasted with the discretionary language that follows:

… unless for special reasons relating to the offence it thinks fit to order otherwise.

[15]     Counsel were unable to refer me to  any judgment  subsequent  to  that  in Palmer which has considered the approach on appeal to the application of s 81 since the judgments in Stichting Lodestar and Rajamani.

[16]     My conclusion on the facts of this case is that on either approach, i.e. whether the determination of whether there are special reasons relating to the offence requires a judicial assessment by the sentencing Judge or is a matter of judicial discretion, the appeal must fail.  My reasons for that conclusion will follow shortly.   However, I observe that I incline to the view submitted by Mr Heather that the assessment of whether there are special reasons relating to the offence, is a matter of judicial assessment.  Only if the sentencing Judge finds special reasons may the Court then exercise the discretion conferred by s 81 to “order otherwise” than the period of minimum disqualification provided by the Act for the offence in question.

[17]     Simon France J in Palmer, also making an observation as I am doing, said at

[61]:

It is difficult to see that most aspects of the sentencing exercise are any more of a discretionary process than the issue in Stichting Lodestar where the decision maker had to decide if two trade marks were likely to cause confusion.  The sentencing exercise is one that is governed by many rules and principles.   Statute fixes the initial ambit, binding case law often sets more precise ambits, and the Act sets out a series of mandatory factors that must be considered.   The analysis in Rajamani, not a sentencing case, suggests many of the decisions that lead up to the fixing of the sentence fall with the Stichting Lodestar approach.  The reality will then be that the ambit of any discretion is severely curtailed by those prior decisions.  The correct answer may be that some aspects of a sentencing are subject to a Stichting Lodestar approach, and other aspects to an “appeal from the exercise of discretion” approach.

[18]     In relation to s 81 it seems to me that the aspect of whether there are special reasons relating to the offence, would be governed on appeal by the Stichting Lodestar approach.  If such special reasons are found to exist, then what follows is a discretionary determination.   In this respect, as Tipping J stated in McGowan v Police HC CHCH AP 139/91, 5 July 199, s 81 gives the Court, if there are special reasons, a discretion to impose either no disqualification or a lesser period than the otherwise mandatory minimum.

[19]     I consider this approach to be consistent with that of the Supreme Court in

Stichting Lodestar and Rajamani.

Were there special reasons relating to the offence?

[20]     I approach this assessment afresh, that being the approach on appeal required, in my view, by Stichting Lodestar and Rajamani, and the approach more favourable to the appellant.  It is also the approach, as Mr Heather submitted, which reflects the wording of s 115 of the Summary Proceedings Act and s 121 of that Act.

[21]     Mr V   has filed a fairly brief affidavit dated 24 August 2009 in which he states that on 13 March 2009 he went to a birthday party in Mangere.  Knowing he would be drinking alcohol that night and making arrangements for his mother to baby sit his children, which he says number six, he intended to stay the night at the residence.   He said he received a message from his daughter Gerry Putt at about

9 p.m. advising that he needed to go home urgently to take her to the doctors.  He says that no-one else had any money to take his daughter to the doctors and that although his mother was baby sitting the children there was no other vehicle at home.   He says he took his daughter to the doctors the following day, 14 March

2009.

[22]     That summary of events differs from the facts related by the sentencing Judge (which counsel have confirmed to me were based on the submissions made to him by counsel), only in that in his affidavit Mr V   says he planned to stay overnight and not to drive home from the party.  The Judge referred to the situation being that at some stage Mr V   would have driven home from the party.

[23]     There is a certificate from Dr Yogakumar at East Tamaki Healthcare that he saw Jerrika Putt aged 14 years on 14 March 2009 suffering from a sore throat, sore tongue and swollen glands in the left side of her neck.  He prescribed medication.

[24]     Mr Heather cited from the judgment in Williams v Police HC WHA CRI

2007-0488-000068 12 December 2007 where Lang J said at [5]:

The courts have found that special reasons exist in numerous cases involving medical emergency or some other need for the offender to drive.  In reaching such conclusions the courts have borne in mind the circumstances in which the decisions were made and have tended to view matters in the round.  It is easier, of course, in hindsight to place an extremely high standard on an

offender who has made a decision that was forced upon him or her under circumstances of pressure.

[25]     In the previous paragraph Lang J referred to the judgment of Tipping J in

McGowan, when he said at 4:

It seems to me that what Parliament is saying to the Court is that there must be something truly special about the circumstances, but one cannot construe that in my view so tightly as to make the section virtually nugatory.  There was in my view a reason quite out of the ordinary for this driving and I accept also that the decisions to drive involved were no doubt entered into under some significant degree of emotional pressure.

[26]     Referring to those citations, Mr Heather submitted that the appellant was responding to what he considered to be a medical emergency on the night in question and that any solo father of several children all with health problems would have done the  same.     He  submitted  there  was  a  degree  of  emotional  pressure  in  the circumstances of this case.

[27]     He also referred to the judgment of Keane J in Cooper v New Zealand Police HC ROT CRI 2009-463-25 25 May 2009 where the Judge said at [10] that the response would have to be “objectively reasonable”.  On the facts of that case, which related to a cry for help, the Judge determined there was no “objectively reasonable” reason for the response involved.

[28]     I cannot accept Mr Heather’s submission that the response of Mr V   in this case was “objectively reasonable” or that the circumstances provide special reasons within s 81.

[29]     It  is  important  to  note  that  both  McGowan  and  Williams  concerned  the offence of driving while disqualified, not driving with excess breath alcohol.  In the case of McEachen v Police [1995] 2 NZLR 251, the Court noted that disqualification is not simply a punishment but a means of protecting the public from further driving that puts the public at risk.

[30]     In Lower Hutt City Council v McAlpine [1972] NZLR 168 Beattie J said at page 172:

In my view, special reasons in blood-alcohol cases could occur only on rare occasions.

There is nothing that has transpired since the Judge expressed that view in 1972, that could lead any court to approach the matter differently.  Driving with excess alcohol is a matter of major concern in our community.

[31]     Whether there were special reasons for Mr V   to drive that night must be assessed against the background that he was heavily intoxicated, approaching twice the legal limit on the result of the subsequent evidential breath test.  This was not a case of a driver fit to drive but disqualified from driving, as in the cases of McGowan and Williams.  Mr V   was significantly intoxicated.  He was a potential risk and threat to his own safety, the safety of others on the road and indeed would have been a risk to his daughter’s safety had he proceeded to take her to the doctor or a hospital that night, as he says he needed to do.

[32]     Mr V   says he received a message from his daughter that she was unwell and he should go home urgently.  The Judge accepted there was some support for that in that the daughter was seen by a doctor the next day.  But there is no other evidence, particularly evidence from an independent source, to support that this was a medical emergency or that Mr V   took any steps to check the nature and extent of the problem or to consider other options in a situation where he had been drinking and it is clear that he was significantly intoxicated.

[33]     On an independent assessment I therefore reach the same conclusion as the District Court Judge, that on the facts of this case there were no special reasons relating to the offence that would give rise to the Court’s discretion not to disqualify under s 81.

Period of disqualification

[34]     I turn to consider the period of disqualification.   Both Mr Heather and Ms Herdson  accept  that  this  was  a  decision  made  in  the  exercise  of  the  Court’s discretion.  I agree.  The Crown’s position is that the period of disqualification was not  manifestly  excessive.     Mr  Heather  submitted  the  Judge  did  not  appear

sufficiently to take into account that Mr V  ’s previous drink driving offending was somewhat historic in nature and that this was not a third instance of a drink driving conviction.

[35]     On this aspect the Judge said at [9]:

Third time up, even some of them a while ago, there is no way I can come down to the minimum period of disqualification, and you will be disqualified from driving for eight months.

That assessment was clearly open to the sentencing Judge.  It was within the range of his discretion.  It was not manifestly excessive for the reasons he gave.  This Court will not interfere on appeal.

Result

[36]     The result therefore is that the appeal is dismissed.