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…

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 Vincent v Police

Details

AGLC: Vincent v Police [2017] NZHC 283
Case: [2017] NZHC 283
Decision Date: 28 February 2017

CaseChat Overview and Summary

The case of Vincent v Police is an appeal against the sentencing decision of the District Court, where the appellant, Kevin Michael Vincent, was convicted of dangerous driving and driving with excess breath alcohol. The appeal focuses on the District Court Judge's decision not to impose a lesser penalty than the mandatory six-month disqualification from driving for each offence under section 81 of the Land Transport Act 1998. The appellant argued that his personal circumstances, specifically his severe depression and desire to commit suicide, constituted "special reasons" that warranted a lesser penalty. The legal issues before the Court were whether the appellant's personal circumstances constituted "special reasons" as per section 81, and if so, whether the discretion under the statute should be exercised to impose a lesser penalty.

The Court examined the principles governing special reasons under section 81, noting that such reasons must arise from the circumstances of the offence itself and not merely the personal characteristics of the offender. The Court found that while the appellant's mental state was integral to the dangerous driving charge, it did not constitute a special reason for the drink driving charge due to the significant risk posed to other road users. However, for the dangerous driving charge, the Court accepted that the appellant's mental state was part and parcel of the offending and the circumstances were sufficiently compelling to warrant a departure from the usual consequences. The Court reduced the disqualification period for the dangerous driving charge to three months, to be served concurrently with the six-month disqualification for the drink driving charge.

The appeal was allowed in part, and the Court substituted the original nine-month disqualification with a six-month disqualification, while the balance of the sentence remained unchanged. The Court's decision emphasised the need to balance the personal circumstances of the offender with the essential purpose of the statutory provisions and the need to deter such behaviour in the public interest.

Orders