Vincent v Police

[2017] NZHC 283

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2017-412-000001 [2017] NZHC 283

BETWEEN

KEVIN MICHAEL VINCENT

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	27 February 2017
Appearances:	M Phillipps for Appellant M J Grills for Crown
Judgment:	28 February 2017

JUDGMENT OF DUNNINGHAM J

[1]      On 14 December 2016 Mr Vincent pleaded guilty to a charge of dangerous driving and a charge of driving with excess breath alcohol.   He was sentenced to

80 hours community work on each charge (to be served concurrently), nine months’

supervision and nine months’ disqualification from driving.1

[2]      Each of the two charges requires a mandatory period of disqualification of at least six months, but this is subject to an exception in s 81 Land Transport Act 1998 if the Court is satisfied there are “special reasons” relating to the offence which warrant  a  lesser  penalty  being  imposed.    The  District  Court  Judge  sentencing Mr Vincent held that the circumstances of the offending did not qualify as “special reasons”, and it is against that aspect of the sentencing decision that Mr Vincent

appeals.

1      Police v Vincent [2016] NZDC 26806.

Facts

[3]      In the early hours of 9 October 2016, Mr Vincent explained that his life was “not  going  well”.    He  was  having  issues  both  at  work  and  at  home,  and  was struggling financially.  He said he felt that he “could not cope any more”.  He drank a lot the previous evening and said that early in the morning he “felt like the world would  be  better  off  without  me”.     He  got  into  his  car  and  drove  out  to Blackhead Road, a rural road just outside of Dunedin.  He then intentionally drove into a safety barrier at speed.

[4]      Despite the car becoming airborne and crashing down the side of a bank, Mr Vincent suffered only minor injuries, although his car was extensively damaged. Mr Vincent was taken to hospital where his injuries were treated and where a blood sample was taken.   Analysis found it to contain  204 milligrams of alcohol per

100 millilitres of blood.2

[5]      Mr Vincent’s evidence is that he was depressed and overwhelmed by his personal circumstances and he intentionally drove through the barrier in order to take his own life.   That is clearly supported by the evidence.   After his injuries were treated in hospital he was referred to Emergency Psychiatric Services and staff there promptly referred him to Wakari Hospital as an inpatient, where he was treated for severe depression for one week.   Although now at home, he continues to receive treatment to address his depression.

Grounds of appeal

[6]      The  appellant  argues  that  the  Judge  erred  in  his  conclusion  that  the circumstances of the offending did not constitute special reasons under s 81, and so declined the application not to impose a mandatory six month disqualification on

each offence.

2      The current legal limit is 50 micrograms per 100 milligrams of blood.

Principles on appeal

[7]      Section 250(2) of the Criminal Procedure Act 2011, provides that the Court must allow an appeal if it is satisfied that:

(a)       for  any  reason  there  is  an  error  in  the  sentence  imposed  on conviction; and

(b)       a different sentence should be imposed.

In any other case the Court must dismiss the appeal.3

[8]      The  approach  taken  by  an  appellate  Court  when  considering  an  appeal involving s 81 was summarised in Morgan v Police:4

[13]    A decision not to waive an otherwise mandatory period of disqualification from driving can involve both:

(1)      an assessment of fact and application of law in determining

whether “special reasons” exist; and

(2)      the exercise of judicial discretion in making an order other than the mandatory disqualification.5

[14]     Thus,  an  appeal  from  a  decision  that  makes  an  assessment  of whether the circumstances of the offending constitute “special reasons” is subject to the standards of appeal articulated by the Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar.6  In this type of appeal:

(1)      The appellate court must reach its own view on the merits of the appeal, bearing in mind.

(2)      The appellant bears the onus of satisfying the appellate court that it should differ from the decision appealed from.

[15]     However, where the appeal focuses upon the way in which judicial discretion has been exercised, the test to be applied is that set out in May v May.7    In this type of appeal the appellant must show that the decision- maker:

(1)      made an error of principle; or

(2)      failed to consider all relevant matters or took into account irrelevant matters; or

3      Criminal Procedure Act 2011, ss 250(3).

4      Morgan v Police [2013] NZHC 3431.

5      Vaevae v Police [2009] BCL 780.

6      Austin, Nicholls & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

7      May v May (1982) 1 NZFLR 165 (CA).

(3)      reached a decision that was plainly wrong.

Section 81

[9]      Section 81 of the Land Transport Act 1998 provides as follows:

… the court must order that the person be disqualified accordingly unless for special reasons relating to the offence it thinks fit to order otherwise.

[10]     A special reason is one which is special to the facts of the offence, rather than one peculiar to the offender.8    It is a “mitigating or extenuating circumstance, not amounting in law to a defence to the charge, yet directly connected with the commission of the offence, and one which the Court ought properly to take into consideration when imposing punishment”.9

[11]     Mawkes v Otahuhu Borough Council adopted a three stage process for s 81 determinations.10 The court should consider:11

(i)       Whether   in   law   the   particular   circumstances   are   capable   of constituting special reasons;

(ii)      Whether on the facts this is to be regarded as so;

(iii)      Whether the Court should exercise its discretion in whole or in part. Are these circumstances capable of constituting special reasons? Appellant’s Submissions

[12]     The appellant submits that this question should be answered by reference to the considerations laid out in in Anderson v Police:12

Special   reasons   “embrace   only   factors   of   particular   or   exceptional character”. The reasons must arise from the circumstances in which the offence was committed or the manner of its commission as a whole. Personal circumstances are not relevant, except to the extent that they influence the events leading up to the commission of the offence, or a part and parcel of the offending itself. The special reason must be of a sufficiently compelling

8      Lower Hutt City Council v McAlpine [1972] NZLR 168 at 170, referencing Whittall v Kirby

[1947] KB 194.

9      Whittall v Kirby, above n 8, at 555.

10     Mawkes v Otahuhu Borough Council [1987] 1 NZLR 284.

11     At 286.

12     Anderson v Police [2016] NZHC 942 at [15].

nature to justify a departure from the usual consequences. The special reason must not conflict with the essential purpose of the statutory provision.

[13]     The District Court Judge held that what happened “actually relates directly to the issues that you were dealing with, not to the driving itself”.   However, the appellant submits that the Judge drew too sharp a distinction between Mr Vincent’s personal issues and the offending itself, when those issues were “part and parcel of the offending” as the entire event was motivated by his desire to commit suicide. The appellant’s submissions go on to detail a number of cases which he argues support his submissions that his personal circumstances are closely related to the special reasons.

[14]     In Mail v Police, Lang J noted:13

I readily accept that the personal characteristics of an offender may well influence the events leading up to the commission of an offence.  They may, in fact, explain and/or cause the offending.   In those circumstances the characteristics of the offender are part and parcel of the offending, and can properly be taken into account for the purposes of s 81 of the Act.

[15]     However, Lang J did not find that the appellant’s personal characteristics affected the offending in that case.  She suffered from severe obsessive-compulsive disorder.  She consumed alcohol because she found out her parents were separating and then drove to pick up a friend some hours later.  The Court found that s 81 did not apply because there was no apparent link between her disorder and the offending.

[16]     In contrast, Tipping J found that special reasons were made out in McGowan v  Police.14      The  appellant  had  been  disqualified  from  driving  but  drove  to  his business premises after Police notified him that it had been broken into.  His Honour concluded that the reason for driving was quite out of the ordinary and the decision to drive was made under significant emotional pressure.  Therefore he reduced the disqualification period from six to three months.

[17]     A six month disqualification was also halved in Williams v Police.15    The appellant  there  was  disqualified  from  driving.    His  father  had  recently  died  in

13     Mail v Police [2012] NZHC 3049 at [15].

14     McGowan v Police HC Christchurch AP139/91, 5 July 1991.

15     Williams v Police HC Whangarei CRI-2007-488-68, 12 December 2007.

hospital, and he drove to the hospital as he lived in a remote area.  The High Court accepted that the stress the appellant was suffering when he drove was a special reason.

[18]     In Coulthard v Police, the appellant drove while disqualified.16     He was severely depressed, suicidal and had attempted to burn down his parents’ house by lighting a fire in his bedroom.  He drove to see his doctor, who referred him to the Emergency Psychiatric Services.  They released him in a taxi, but gave him back his car keys.  He then obtained his car and drove home.  Justice Hansen held that these facts constituted a special reason and quashed the disqualification.

[19]     The appellant submits that the circumstances in this appeal  are  factually similar to Coulthard.  Both involve a driver who was suicidal and severely depressed and who drove as a result of that mental state.  In both cases, the drivers’ mental state was sufficiently serious as to warrant a referral to Emergency Psychiatric Services. Mr Vincent submits that his mental state was “part and parcel of the offending” because his severe depression and desire to commit suicide were directly causative of the offending.   Consequently the special reasons are directly connected to the offending and are not merely unrelated personal characteristics.

[20]     The appellant also submits that a finding of special reasons in this scenario does not conflict with the purpose of the relevant statutory provisions.  Mr Vincent was disqualified for driving with excess breath alcohol and dangerous driving.  The purpose of the disqualification for drink driving is to punish drivers and deter others. Ms Phillips contended that a finding of special reasons here would not reduce the deterrent effect as suicidal drivers are unlikely to be factoring in the possibility of a disqualification when making decisions.

[21]     In regards to dangerous driving, Mr Vincent accepts that his driving posed a danger to the public.  However, this charge arose from the crash he engineered.  The appellant submits that the site was chosen for its isolation and occurred at 5.00 am on a Sunday morning when the road was relatively empty.  He submits that due to

his care in minimising the danger to others and the highly particular reason for his

16     Coulthard v Police HC Christchurch CRI-2007-409-83, 4 May 2007.

single act of dangerous driving, a finding of special reasons would not conflict with the purpose of protecting the public from dangerous drivers.

Respondent’s submissions

[22]     The respondent acknowledges that evidence of the appellant’s depression and desire to commit suicide may be relevant to whether special reasons arise on the charge of dangerous driving, but that they cannot form special reasons in relation to the drink driving charge.

[23]     The respondent notes that the combination of depressed mood and alcohol consumption is not uncommon in the context of drink driving and the appellant put other road users at risk while he travelled approximately 15 kilometres to where he drove off the road in his failed suicide attempt.  In support of this view Ms Grills drew my attention to the observation of Wylie J in Anderson where he stated:17

A Court will not lightly find that there are special reasons in the alcohol impairment context.  Whether reasonable or possible available alternatives to drink driving have or could have been explored, will often be a factor of considerable significance.

[24]     The respondent notes that the District Court Judge determined that, while the appellant was undergoing difficult personal circumstances, he still chose to act as he did and put everybody else on the road at risk and that this could not be tolerated.18

In addition, the respondent observes that the material before the Court does not indicate that the appellant’s state of mind was such that he was unable to consider alternatives to driving or that his state of mind was such that he was not responsible for his actions, in particular his decision to consume alcohol and then drive.

Discussion

[25]     In Anderson, Wylie J identified four relevant considerations in determining whether special reasons exist in law:

17     Anderson, above n 11, at [16].

18     Vincent, above n 1, at [4].

(a)      the reasons must arise from the circumstances in which the offence was committed or the manner of its commission as a whole.  Personal circumstances are not relevant, except to the extent that they influence events leading up to the commission of the offence, or are part and parcel of the offending itself;

(b)special  reasons  “embrace  only factors  of  particular  or  exceptional character”;

(c)      the  special  reason  must  be  of  a  sufficiently  compelling  nature  to justify a departure from the usual consequences; and

(d)the special reason must not conflict with the essential purpose of the statutory provision.19

[26]     For various reasons, I do not accept the appellant’s submissions that the entire driving event should be seen as part and parcel of the suicide attempt, and that therefore both offences should be encompassed by the “special reasons” exception to mandatory disqualification.

[27]     At the outset, I observe that the affidavit evidence was inadequate to support the assertion that the 15 kilometre drive was itself motivated by the desire to reach an empty rural road in order to commit suicide in a place where others were unlikely to be endangered.  However, even if that evidence had been given, I would not see the drink driving charge as giving rise to special reasons for the purpose of s 81.

[28]     First,  I consider there is an obvious inconsistency in suggesting that  the decision to drive 15 kilometres in a significantly intoxicated state was motivated by a desire to avoid putting others at risk.  Second, I consider that recognising the purpose of the journey as a special reason to avoid drink driving charges would conflict with the essential purpose of the statutory provision.  The level of intoxication was high, and the risk to the public was not outweighed by the reasons put forward for making

this  journey in  this  particular  case.    While  I  accept  that,  given  the  purpose  of

19 At [15].

Mr Vincent’s trip, he likely did not turn his mind to these risks, and so in one sense the appellant is right in saying that the deterrent purpose of sentencing is not particularly relevant in such unusual circumstances, I consider the same would be true in many cases where people drive in a depressed or mood affected state.  It is an insufficient reason, in my view, to treat this case more leniently.

[29]     However, I do consider that special reasons arise in relation to the dangerous driving charge.  That charge relates solely to the action of driving through the safety barrier at speed.  Here, Mr Vincent’s mental state was integral to the commission of the offence and this clearly was an incident of quite unusual or exceptional character. I think these unusual circumstances are of a sufficiently compelling nature to justify departure from the usual consequences of dangerous driving.   I also note that the consequences for Mr Vincent’s personal life have been momentous, including the loss of his job as a security officer.

[30]     Given the unusual circumstances of the driving which led to the charge, I also accept  that  recognising  it  would  not  conflict  with  the  essential  purpose  of  the statutory provision.   The driving occurred in unique circumstances, and where it appears the appellant had, at least in relation to this specific action, considered minimising the risk to the public by undertaking this act in a rural area.  Mr Vincent does not have a record of dangerous driving, and I do not consider that deterrence is a particularly strong factor to take account of here, either for him or others, given the unusual reason for the actions which led to the charge.

[31]     Accordingly,   in   my   view,   the   Judge   was   incorrect   to   discount   the circumstances which gave rise to the dangerous driving charge, as not amounting to special reasons for the purpose of s 81 Land Transport Act 1998.

If a special reason is established, should the discretion to impose less than the mandatory sentence be exercised?

[32]     Having determined that there is scope to exercise the discretion afforded in s 81,  the  next  issue  is  whether  I  should  reduce  the   mandatory  period  of disqualification and if so, what sentence I should impose.

[33]     The District Court Judge disqualified Mr Vincent from holding or obtaining a driver’s licence for nine months, which he said took into account that there were two charges, but “totality principles apply”.  While it was not expressly stated, it appears he chose to impose the disqualification periods concurrently but then uplifted the six month period imposed to reflect the fact there were two charges.

[34]     In  my view,  the  appropriate  course  of  action  is  to  reduce  the  period  of mandatory disqualification  on  the  dangerous  driving  charge  by three  months  to three months, to be served concurrently with the six month disqualification period imposed on the drink driving charge.

Outcome

[35]     The appeal is therefore allowed in part.   The nine months’ disqualification from driving is replaced with a six month period of disqualification.  The balance of the sentence remains unchanged.

Solicitors:

Public Defence Service, Dunedin

RPB Law, Dunedin