W v Police HC Auckland CRI 2008-404-39

[2008] NZHC 641

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2008-404-000039

BETWEEN  W

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         6 May 2008

Counsel:         KK Harding for Appellant

EJ Walker for Respondent

Judgment:      6 May 2008

ORAL JUDGMENT OF RODNEY HANSEN J

Solicitors:           KK, Harding, P O Box 105-590, Auckland for Appellant

Meredith Connell, P O Box 2213, Auckland for Respondent

W V  POLICE HC AK CRI 2008-404-000039  6 May 2008

[1]      Mr W   pleaded guilty to driving with excess breath alcohol.  He was fined

$850, ordered to pay Court costs of $130 and disqualified from driving for a period of twelve months.  He appeals against the term of disqualification.

[2]      On 26 January 2008, Mr W   was found slumped behind the steering wheel of his vehicle, which was stopped in the middle of the road in a residential area with its engine running and headlights on.  An evidential breath test disclosed that he had

696 micrograms of alcohol per litre of breath.  The maximum permissible level is

400 micrograms.

[3]      Mr W   has a previous conviction for driving with excess breath alcohol. In December 2002 he was fined $500 and disqualified from driving for six months after conviction for driving with a level of 839 micrograms of alcohol per litre of breath.  Mr W   also has a conviction in December 2002 for operating a vehicle inconsiderately and two convictions for careless use of a motor vehicle in 1983 and

1993.

Submissions

[4]      Ms Harding submits that the period of disqualification imposed on Mr W   is an appropriate response to a third conviction for excess breath or blood alcohol but is excessive for a second-time offender in the circumstances of the appellant.  She argues there was insufficient recognition of the particular hardship that Mr W   and his family would suffer from the loss of his driver’s licence.  He is a married man with five children aged 11 to 22, all living at home.  He is the main breadwinner. His  wife  is  suffering  from  cancer.     She  is  undergoing  chemotherapy  and radiotherapy, necessitating frequent trips to hospital.   I am told she is required to attend hospital everyday, five days a week for a period of six months.  Mr W   has been responsible for transporting her to and from hospital and has been given time off by his employer for that purpose.  The cost of public transport or taxis would be a significant financial burden to the family.

[5]      The disqualification also creates difficulties for the appellant’s job.  He is a shopfitter, who is required to start early and work late and to transport equipment and material to sites around the city.

[6]      Ms Walker acknowledges that the term of disqualification is towards the upper end of the available range but submits that it is not manifestly excessive having regard, in particular, to the relatively high level of alcohol involved – close to double the maximum – the bad driving associated with the offending involving, as it did, significant risk to other road users, and Mr W  ’s previous conviction.   She points out that on the previous occasion Mr W  ’s breath alcohol level was even higher, in excess of twice the legal maximum.

Discussion

[7]      In the course of a decision given earlier today (Blanco v Police AK HC 2008-

404-000072, 6 May 2008, Rodney Hansen J), I discussed the factors relevant to a sentence of disqualification for a second conviction.  It is convenient to repeat what I said at paragraphs 11-14:

“[11]    Under s 56(3) of the Act, a person convicted of first or second blood or breath alcohol offence must be disqualified for a minimum period of six months.   For a third or subsequent offence, the minimum period of disqualification increased to 12 months.   The period of disqualification imposed in individual cases, like other elements of the sentence, will depend on the circumstances of the offending and the offender – see the decisions of the Full Court in Ministry of Transport v Graham [1990] 3 NZLR 249 and McEachen v Police [1995] 2 NZLR 251. Of particular relevance to a second conviction will be the level of blood or breath alcohol involved, whether the offending was associated with other driving offences, the date in circumstances of the previous conviction and the personal circumstances of the offender.

[12]      In Graham, a term of disqualification of two years was upheld on a second conviction.  In that case, the usual range of disqualification in such cases was said to be 12-18 months and in a case referred to me by Mr Wright, Edwards v Police HC New Plymouth AP 31/02 13 August 2002, Chambers J, a total disqualification period of 18 months for a second offence was held not to have been manifestly excessive.  More recent decisions have suggested the usual range for second convictions is 6-12 months – see for example Lake v Police HC Palmerston North AP14/03 4 June 2003, Ronald Young J.

[13]      This trend is supported by a schedule prepared by Ms Harding in which she summarised sentences imposed on clients whom she has represented for second and subsequent excess breath and blood alcohol offences.   This data tends to indicate that the terms of disqualification currently being imposed for second convictions are within the 6-12 months range and, in the absence of serious aggravating circumstances, often not materially greater than the minimum of six months.

[14]     I  accept  that  the  minimum  term  of  disqualification  may  be appropriate  on  a  second  conviction,  particularly  where  there  are  no significant aggravating circumstances, the blood or breath alcohol level is not greatly in excess of the limit and a significant period of time has elapsed since the earlier conviction.   However, it does seem to me that the earlier offence will generally be an aggravating factor and all things being equal the period of disqualification for a second offence will be greater than the minimum.”

[8]      As Ms Walker submits, the aggravating features associated with Mr W  ’s offending justify a period of disqualification materially greater than the minimum of six months.   I take into account particularly the relatively high levels of alcohol involved in both offences and the danger to the public posed by his driving. Were it not for his personal circumstances, a sentence at or close to the top of the usual range might have been justified.

[9]      I am satisfied also that the personal circumstances of Mr W   and his family warrant a significant reduction in the term of disqualification.  The Judge explicitly took those circumstances into account in opting for a fine instead of community work.  There is, however, no indication that she had regard to the special impact a disqualification would have.  There can be little doubt that the loss by Mr W   of his driving licence will cause him and his dependants a greater than usual level of hardship.   It will have financial consequences for a family which is already under siege.  It will be much more than an inconvenience.  It will add significantly to the pressures on the family unit.

[10]     By s 8(h) of the Sentencing Act 2002, a sentencing Court must take into account circumstances of the offender that mean that a sentence that would otherwise be appropriate would, in the particular instance, be disproportionately severe.  I am satisfied that this principle is directly applicable in this case.

[11]     Having regard to the aggravating factors I have referred to, I consider that a period of disqualification of no less than nine months would have been justified were it not for Mr W  ’s personal circumstances.  However, the particular hardship that a term of disqualification will mean for the appellant and his dependants persuades me that in this case a period of disqualification no greater than the minimum is appropriate.

Result

[12]     The appeal is allowed.  The term of disqualification is reduced to six months.