Watt v Police

[2013] NZHC 2343

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-265 [2013] NZHC 2343

BETWEEN  COLIN ANDREW WATT Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:                   9 September 2013

Counsel:                  MJ Mellin for Appellant

RE Savage for Respondent

Judgment:                9 September 2013

ORAL JUDGMENT OF RODNEY HANSEN J

Solicitors:           Patrick Winkler, Auckland

Meredith Connell, Auckland

WATT v POLICE [2013] NZHC 2343 [9 September 2013]

[1]      Mr Watt appeals under s 107 of the Land Transport Act 1998 (the Act) against the refusal of Judge Andree Wiltens to defer the commencement of a sentence of disqualification imposed on him following his plea of guilty to a charge of driving with excess breath alcohol.

[2]      Mr Watt had applied under s 94 of the Act for an order that the Court impose a community-based sentence on him instead of making an order for disqualification. That application had been refused by Judge Andree Wiltens.   Mr Watt appealed against his decision and at the same time made an application for deferment of the period of disqualification.

[3]      Mr Watt’s application under s 94 relied heavily on the likely effect on his employment  of  a  sentence  of  disqualification.    He  is  a  printer  who  had  been employed by the same firm for some eight years working 12-hour shifts which commenced at 6.00 a.m. on the days he worked. He lives on the North Shore.  His place of work is in Mt Albert.  Public transport is not available to get him to work at

6.00 a.m. in the morning.  His application for deferment was supported by a letter from his employer which indicated that if he were unable to report to work at the stipulated starting time, he would likely lose his job.

[4]      There was also some weight placed on Mr Watt’s obligations to his elderly parents with whom he lives and who are in poor health.  In evidence filed in support of the application he maintained that they were dependent on him to obtain medical supplies and keep medical appointments and the like.

[5]     Judge Andree Wiltens was not convinced that the consequences of disqualification  for Mr Watt’s  employment  would  be as  dire  as  he  feared.    He thought that there were means by which his circumstances could be accommodated. Similarly, he saw Mr Watt’s obligations to his parents as unlikely to amount to a commitment of such a nature that he could properly take them into account for the purpose of the application.

[6]      Against  that  he  had  regard  to  the  fact  that  Mr  Watt  had  five  previous convictions for excess alcohol offending.  He said he had not taken the opportunity

to rehabilitate himself.  Having regard to the public interest in keeping the roads free of recidivist drunk drivers, he did not see a case for exercising his discretion to provide an exemption under s 94 of the Act.

[7]      In his amended grounds of appeal, Mr Watt argues that the District Court Judge erred in the way in which he interpreted the evidence relating to the likely effect on his employment and failed to put sufficient weight on his obligations to his parents.   He also argues that the District Court Judge misdirected himself in his approach to s 94, in particular, in requiring some certainty of the consequences of disqualification as opposed to a real risk that the apprehended consequences may occur.

[8]      Judge Andree Wiltens declined the application for a deferment of sentence on the short ground that there are no obvious grounds of appeal which might support success.

[9]      In advancing the appeal against this decision, Mr Mellin argues that, contrary to  the  Judge’s  view,  the  quite  extensive  amended  grounds  of  appeal  set  out arguments of some merit and that the possible success of the appeal cannot be dismissed.  He also relies on an updated affidavit by Mr Watt in which he explains that he has been able to avoid bringing matters to a head with his employer by relying on his sister to provide him with transport to work.   However, that is not assistance that he believes he can rely on pending the outcome of the appeal.

[10]     Mr Mellin, relying on comments in Broad v Police,[1] submits that the appeal against the refusal to defer the period of disqualification should be granted if the substantive appeal has not been brought in bad faith or in reliance on spurious points of law.  While it is the case that there is, in practical terms, a presumption in favour of granting applications for deferment as Brewer J said in Singleton v Police,[2]  the discretion is, nevertheless, one that must be exercised judicially and it is necessary to have regard to the merits of the appeal and the implications of a refusal to grant

deferment.

[1] Broad v Police HC Auckland CRI-2008-404-186, 4 July 2008.

[2] Singleton v Police HC Auckland CRI-2012-404-131, 7 May 2012.

[11]     Having regard to his history as a recidivist drinking driver, Mr Watt faces formidable obstacles in persuading this Court that Judge Andree Wiltens erred in rejecting his application under s 94.  That said, it seems to me that on the basis of the evidence now available, there is at least an arguable case.   And while the appeal would by no means be rendered nugatory if deferment is not granted, there is some risk that if Mr Watt is unable to get to and from work pending the determination of the appeal, the consequences could be the loss of long-term employment.

[12]     In the circumstances and by a fine margin, I am persuaded that the appeal should be allowed and the period of disqualification deferred pursuant to s 107 of the Act. That is, however, on the basis that the substantive appeal is dealt with promptly. I am told that time is available on 24 September 2013.  A fixture for the hearing of the appeal is made for that date at 10.00 a.m.  I anticipate that no more than an hour would be required for the hearing of the appeal.   In the usual way, submissions should be filed in advance, as should have occurred for the purpose of today’s appeal.

[13]     For the avoidance of doubt, the deferment will take effect from the date on which the disqualification order was imposed.