Walford v Police - [2016] NZHC 2785

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI-2016-416-24 [2016] NZHC 2785

BETWEEN
RAYMOND GEORGE WALFORD

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 11 October 2016 via AVL

Appearances:

Mr Walford appearing in person
M M Mitchell for the Respondent

Judgment:

21 November 2016

JUDGMENT OF MALLON J

Introduction

[1] Mr Walford pleaded guilty to and was convicted of driving with excess breath alcohol (third or subsequent).1 He was sentenced in the Gisborne District Court to six months home detention with special and standard conditions for six months after the sentence end date. He was also disqualified from driving for two years.2 He appeals against his sentence.

[2] His principal ground of appeal concerns the disqualification order. He contends the Judge was wrong as to whether special reasons for not imposing the disqualification existed. Alternatively he seeks a reduction in the period of his disqualification. He also contends his solicitor did not act promptly on his instructions which affected the available discount for his guilty plea. Lastly he seeks
a variation to the conditions of his home detention sentence.

1 Land Transport Act 1998, ss 56(1) and (4) (maximum penalty two years imprisonment or a fine of $6,000 and mandatory disqualification from holding or obtaining a driver’s licence for more than one year).
2 Police v Walford [2016] NZDC 11588.

WALFORD v NEW ZEALAND POLICE [2016] NZHC 2785 [21 November 2016]

Disqualification

Special reasons

[3] A one year minimum period of disqualification that applies to a third or subsequent conviction for driving with excess breath alcohol.3 The Court is required to impose a period of disqualification not less than the one year minimum “unless for special reasons relating to the offence it thinks fit to order otherwise.”4

[4] Mr Walford sought to advance special reasons. For this purpose affidavits were filed concerning the circumstances which had led to Mr Walford driving on this occasion. Those circumstances were as follows.

[5] Mr Walford and others had been drinking with a friend (Mike) at Mike’s house in Gisborne. Mike fell asleep and some of the other people at the house left. Mr Walford and Mr Pomana remained at the house and continued to drink. Mr Pomana suffers from emphysema. As time went on he began to feel unwell and became breathless. He had run out of his medication and needed an atomiser.

[6] Mr Walford decided Mr Pomana needed to go to the hospital. They considered calling an ambulance. However Mr Walford’s cell phone battery was flat and Mr Pomana did not have a cell phone. Mr Walford decided to take Mr Pomana to get help. He did not think twice about driving because his only thought was getting help for Mr Pomana. When they got in the car Mr Walford remembered he had a friend (Les) who also had emphysema and lived around the corner from Mike’s house. He thought they could go there first and get an atomiser from him.

[7] A short distance after leaving Mike’s house, Mr…

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.

Keep reading for free

Create a free CaseChat account to read Walford v Police and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] NZHC 2785
Decision Date: 21 November 2016

CaseChat Overview and Summary

Mr Raymond Walford appeals against his sentence for driving with excess breath alcohol. The appeal is against the sentence imposed by the Gisborne District Court which included a period of six months home detention with special conditions and a period of disqualification from driving for two years. Mr Walford challenges the disqualification period, the period of his home detention, and the actions of his solicitor. The High Court was asked to consider whether the disqualification period was excessive and whether there were special reasons for not imposing the disqualification. The court also considered whether the period of home detention was excessive and whether the solicitor acted promptly in advising the court of the change of plea.

The High Court held that Mr Walford had not established special reasons for not imposing the disqualification period. The court considered that Mr Walford had not shown that other practicable options were explored before deciding to drive. The High Court found no error in the Judge’s conclusion about this matter. The court held that the disqualification period was not manifestly excessive. The minimum period of disqualification was one year. The court noted that the significant gap between Mr Walford’s last drink driving conviction and the present offence was to his credit. The court also considered that it was to Mr Walford’s credit that he was determined to remain sober and had taken steps to assist him to do so. However, the court held that Mr Walford’s history showed that alcohol had been a problem for him for a long time. The court held that although Mr Walford thought there was an emergency, the situation should not have led to him driving when he had consumed such a significant amount of alcohol.

The High Court held that there was no substance to the complaint that Mr Walford’s lawyer did not promptly advise the court of his change of plea. The court noted that the lawyer had filed a memorandum with the court on 13 April 2016 in which she advised that a guilty plea would be entered on 18 April 2016. The court noted that the reason why the Judge gave minimal credit for the guilty plea was because it was not made at the first opportunity. The court held that the sentence imposed on Mr Walford was not manifestly excessive taking into account his guilty plea, his acceptance of responsibility and his remorse.

The High Court held that the conditions of Mr Walford’s home detention were a matter to be raised with his probation officer. The court noted that the conditions of home detention included a condition that Mr Walford remain at the home detention address “at all times unless an absence has been authorised by [the] Probation Officer.” The court held that his probation officer would be able to assess whether a regular visit to the gym would be beneficial to Mr Walford and could be appropriately accommodated.

The appeal was accordingly dismissed.

Orders