W v Police HC Palmerston North CRI 2006 454 49

[2006] NZHC 1567

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI 2006 454 49

BETWEEN  W

Appellant

AND  NEW ZEALAND POLICE Respondent

Hearing:         12 December 2006

Counsel:        M B Ryan for Appellant

D R Davies for Respondent

Judgment:      12 December 2006

ORAL JUDGMENT OF WILD J

[1]      This is an appeal against part of a sentence imposed by Judge Garland in the District Court at Palmerston North on 26 September.  The appeal is a few days out of time and leave is sought accordingly.  The Crown is not prejudiced and abides the Court’s decision on the leave application, which is granted.

[2]      The  appellant  pleaded  guilty  to  driving  with  excess  breath  alcohol  on

Tremaine Avenue in Palmerston North on 17 August.  His breath alcohol count was

974 against the legal maximum of 400.   In other words it was approximately 2½ times the legal limit.   The Judge referred to that as a “pretty high level”.   Having convicted the appellant, he fined him $750, ordered him to pay Court costs of $130 and  disqualified  him  from  holding  a  driver’s  licence  for  nine  months  from  26

September.  The appeal is only against that period of disqualification.

[3]      Apart from being well over the legal limit and travelling at 74 kph in a 50 kph zone, the appellant’s driving was unexceptional.  It was 2 a.m. on a Thursday.

W V NEW ZEALAND POLICE HC PMN CRI 2006 454 49 12 December 2006

But, because his alcohol level was over 650, his licence was automatically suspended for 28 days pursuant to s95(1)(a)(ii) of the Land Transport Act 1998.  The appellant was summonsed to appear in Court 40 days after being apprehended.

[4]      For the appellant, Mr Ryan is critical of this, submitting it is deliberate Police practice to ensure that drivers in the appellant’s position ‘serve’ all their 28 day suspension before any period  of disqualification  begins.    Mr  Ryan submits that drivers not caught by s95 are normally summonsed to appear within 14 days of apprehension.

[5]      Mr Ryan invited me to reduce the period of disqualification to seven months. He arrived at seven months by two steps.  First, there should be a reduction to reflect the 26 days difference between 14 and 40 days, to restore the position to where it ought to  have been had the appellant  been summonsed to appear 14 days  from apprehension.  Second, there should be an additional one month reduction to mark the Court’s concern and condemnation at the Police deliberately summonsing the appellant 40 days out from apprehension.

[6]      This is essentially a double jeopardy argument.  It is not one that can succeed. There are three reasons for that.  First, insofar as the argument is predicated on the Judge being unaware of s95, it is untenable.  Everyone is presumed to know the law, particularly District Court Judges.

[7]      Second, s95(5) specifically provides:

Nothing in this section affects or limits any power of the Court to impose a penalty.

The commentary on s95 in Lexis Nexis’ Transport Law edited by Becroft & Hall comments:

The powers under this section are in addition to any penalty the Court may impose upon conviction:  s95(5).

[8]      Third, it is clear from submissions made by the Ministry of Transport to the Select Committee upon the introduction of the Land Transport Bill, that what has become s95 was intended to be an additional, immediate and mandatory deterrent to

drivers who  were on the road with high blood or breath alcohol levels.   Those submissions are referred to in Becroft & Hall’s commentary at paragraph LTA95.2 at p303,004. In my view, Judge Tuohy correctly reflected this in his decision in Cuff v Director of Land Transport Safety (DC, Wanganui MA 70/00, 6 December 2000) when he described the s95 scheme at para [6] of his decision as:

… a fairly draconian system of dealing with matters of road safety under the penalty of suspension of licence equivalent to disqualification by the Court

… not imposed by the Court but administratively by an enforcement officer.

On the other hand the length of that suspension is limited to 28 days.

[9]      To that I add that Police Officers have no discretion under s95.  That is clear from the wording of s95(1) and (1A) which provides:

An enforcement officer must give a person a notice …

[10]     Mr Ryan’s submission that s25(b) of the New Zealand Bill of Rights Act applies here has no force.   Even if the Police had deliberately not summonsed the appellant until 40 days out from his apprehension that could not, in my view, amount to undue delay.  It could be criticised as constituting unnecessary delay, but not as undue or excessive delay such as to deny timely justice.  To put that in perspective, I was part of a Full High Court which permanently stayed a criminal proceeding in the District Court at Blenheim after a delay of 22 months from arrest to proposed date of trial.  That judgment was in Graham v District Court at Blenheim HC BN CIV 2006

406 119 10 October 2006.

[11]     Nor is there any force in Mr Ryan’s submission that the appellant requires a licence for his work. That was obviously not true at the time he was apprehended.  If it is now the position, or becomes the position, then in my view appropriate application should be made.  I refer to s103 and following of the Land Transport Act, the provisions for limited licences for employment for other purposes.

[12]     Mr Ryan refers to the Full High Court’s judgment in McEachen v R (1994)

12 CRNZ 440.   That judgment records disqualification periods for drivers in the appellant’s category, that is first offenders in the medium category in breath/blood alcohol reading terms, of between 6 and 12 months with an average of 7½ months, and to fines in the range $150 to $2,000 with an average of $801.   Nine months

disqualification is within that range, as also is the fine of $750 imposed by Judge

Garland.

[13]     Finally, I record that I adjourned the hearing of this appeal over the luncheon adjournment to enable Ms Davies to obtain instructions as to whether in fact the Palmerston North Police had deliberately not summonsed the appellant for 40 days to ensure that the 28 day s95 suspension period was served in full.   Ms Davies advises that her instructions are that the Police have no such policy, and that the Court appearance day is normally fixed in discussion with the offender at the time of apprehension.   Here, the officer who  apprehended the appellant  believes that  he simply got the wrong date.   He confirms that he did not deliberately postpone the appearance date.

[14]     Ms Davies made two further points.  The first is that the summons date has to be fixed at the time.  The Police do that with reference to Court list days, which are posted at the Police Station.  The summons subsequently has to be followed up by a Court information.   Her second point is that the summons has to be for a date no later than two months out.

[15]     For those reasons the appeal is dismissed.  The penalties and disqualification period imposed by the Judge are confirmed in all respects.

Solicitors:

M B Ryan, Palmerston North for Appellant

Crown Solicitor, Palmerston North for Respondent