Waihape v Police

[2012] NZHC 1459

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2012-485-000051 [2012] NZHC 1459

BETWEEN  ROGER TETAU WAIHAPE Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         26 June 2012

Counsel:         V C Nisbet for Appellant

J A Eng for Respondent

Judgment:      26 June 2012

ORAL JUDGMENT OF COLLINS J

Introduction

[1]      The appellant was stopped at a police checkpoint at approximately 10.50am on Sunday 27 November 2011.   Breath testing procedures were carried out.   The appellant’s  breath  was  found to  contain  544 micrograms  of alcohol  per litre of breath.

[2]      The appellant has four previous convictions for driving with excess breath or blood alcohol. Those convictions related to incidents which occurred on:

(1)       14 January 1982; (2)     9 November 1983; (3)           22 March 1984;

(4)       23 June 1993.

WAIHAPE V NEW ZEALAND POLICE HC WN CRI-2012-485-000051 [26 June 2012]

[3]      On the last occasion he was convicted of driving with excess breath/blood alcohol.     The  appellant  was  sentenced  to  75  hours  community  service  and disqualified from driving for six months.  The appellant pleaded guilty to the latest charge.   Judge Behrens QC fined the appellant $1,000 and disqualified him from driving for 18 months.  Mr Waihape appeals the length of disqualification imposed by the District Court Judge.   He submits that the length of the period of disqualification  imposed  upon  him  by  the  District  Court  Judge  was  “clearly excessive or inadequate or inappropriate” within the meaning of s 121(3)(b) of the Summary Proceedings Act 1957.

Submissions for appellant

[4]      Mr  Nisbet,  counsel  for  Mr  Waihape  has  based  his  submissions  on  the following points:

(1)There was no suggestion Mr Waihape’s driving was wayward and/or dangerous.   Mr Waihape had been drinking the previous night at a work function and ensured his car was not available to him.   He, however, believed he needed to drive on the Sunday morning to look for a family member.

(2)      Mr Waihape’s previous convictions were 19 years ago, or longer.

Submissions for the respondent

[5]      In opposing the appeal, Mr Eng has drawn the Court’s attention to a number

of cases, namely:

(1)Fairbrother v Police[1]  where an appellant, convicted of driving with excess breath alcohol (558 micrograms per litre of breath) was fined

[1] Fairbrother v Police HC Wellington MA16/02, 5 December 2002.

$1,500 and disqualified from driving for two years.  In the High Court

Ellen France J observed that disqualification of up to 18 months can

be legitimately imposed for a second drink drive conviction and that the sentence under appeal was not manifestly excessive.

(2)Gregory v Police.[2]   In that case there were three previous convictions for drink driving which were of an historical nature.  The appellant had been convicted of driving with 600 micrograms of alcohol per litre of breath.  A disqualification period of 18 months was upheld by Neazor J in the High Court.

Analysis

[2] Gregory v Police HC Palmerston North AP36/00, 16 August 2000.

[6]      In considering whether or not to allow the appeal I have:

(1)had regard to the requirements of s 8(e) of the Sentencing Act 2002 which requires reasonable consistency and uniformity in the disposition of similar cases;

(2)had regard to s 8(g) of the Sentencing Act 2002 that requires that a sentence impose the least restrictive outcome that is appropriate;  and

(3)       had regard to recent comparable cases.  In particular I have examined:

(a)        Sala v Police[3]  where an  appellant, who had seven convictions and was found to have a blood alcohol level of 111 micrograms per 100 millilitres of blood was disqualified for one year and one day.

[3] Sala v Police [2012] NZHC 421.

(b)Police  v  Tuhou[4]    where  the  appellant,  with  nine previous convictions was convicted with a breath alcohol level of 792 micrograms per litre of breath. His last conviction was 17 years old.   He was also

[4] Police v Tuhou HC New Plymouth CRI-2010-442-9, 12 May 2011.

disqualified from driving for one year and one day.

(c)      Yorston v Police[5]  where the appellant had three convictions that were at least ten years old.  He was found to  be driving with  100  micrograms  per  100 millilitres of alcohol in his blood.   He also was disqualified from driving for one year and one day.

[5] Yorston v Police HC Auckland CRI-2010-404-164, 14 September 2010.

[7]      In my assessment, the period of disqualification was manifestly excessive.  In reaching this conclusion I take note of the fact that the appellant’s blood alcohol level was comparatively low.  The authorities to which I have referred make clear that a period of disqualification which is imposed should reflect the culpability of the offending and the offender.

[8]      The fact that Mr Waihape has previous convictions of this kind in his past does not, in the circumstances of this case need to impact upon the length of disqualification that is necessary to protect the public.

Conclusions

[9]     For these reasons I will allow the appeal and substitute a period of disqualification of one year and one day. All other orders made by the District Court

will remain.

D B Collins J

Solicitors:

Val Nisbet, Wellington for Appellant

Crown Solicitor, Wellington for Respondent