Woodward v Police HC Wellington CRI-2011-485-67

[2011] NZHC 960

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2011-485-67

SUZANNE KATHLEEN WOODWARD

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         30 August 2011

Counsel:         S J Iorns for appellant

M J Ferrier for respondent

Judgment:      31 August 2011

RESERVED JUDGMENT OF DOBSON J

[1]      On 22 June 2011, the appellant (Ms Woodward), having pleaded guilty to one charge of driving with excess breath alcohol in circumstances where she had at least two prior convictions, was sentenced in the Upper Hutt District Court.  A plea was made on Ms Woodward’s behalf under s 81 of the Land Transport Act 1998 (the Act) that the Court should depart from the mandatory period of disqualification otherwise provided under the Act, on account of special reasons that were advanced on her behalf.   The sentencing Judge, Judge Thomas, rejected that application and disqualified Ms Woodward from holding or obtaining a driver’s licence for one year and a day.  Although Ms Woodward was ordered to pay an analyst’s fee of $93, no

other financial penalty was imposed.

WOODWARD V NEW ZEALAND POLICE HC WN CRI-2011-485-67 31 August 2011

[2]      Ms Woodward now appeals from the District Court decision not to deal with her other than by a period of disqualification under s 81 of the Act.

[3]      The offence occurred on 7 October 2010.  On that day, Ms Woodward was picnicking with members of her family at Ngati Tama Park in Totara Park, Upper Hutt.  She had consumed an amount of alcohol and at around 4.30pm decided to ride a 50cc child’s motor bike.  Having ridden a certain distance over grassed areas, she reached a gravel path and skidded, falling off the motor bike.   She sustained considerable injuries including a broken femur and was transported to hospital.  An analysis  of  her  blood  returned  a  reading  of  117  milligrams  of  alcohol  per

100 millilitres of blood.  Ms Woodward’s two previous convictions for driving with

excess blood or breath alcohol were in 1986 and 1997.

[4]      In those circumstances, on entering the present guilty plea, Ms Woodward was vulnerable, on sentencing under s 56(4) of the Act, to a maximum penalty of imprisonment for a term not exceeding two years, or a fine not exceeding $6,000, and the Court was required to disqualify her from holding or obtaining a driver licence for more than one year.   That mandatory obligation to impose a period of disqualification is subject to the provision of s 81(1) of the Act, which provides as follows:

81       Provisions relating to mandatory disqualification

(1)       If any provision of this Act (other than section 63) requires a court to disqualify a person from holding or obtaining a driver licence or transport service licence  for  a period not  less than the specified minimum period, the court must order that the person be disqualified accordingly unless for special reasons relating to the offence it thinks fit to order otherwise.

[5]      The sequence of considerations as to whether special reasons relating to the offence do exist involves:1

whether  in  law  particular  circumstances  are  capable  of  constituting special reasons;

if so, whether on the facts they are to be so regarded; and

whether the Court should exercise its discretion to dispense with the minimum disqualification in whole or in part.

[6]      Although more grounds were argued in the District Court, on appeal Mr Iorns raised three issues as constituting “special reasons relating to the offence” to bring the case within s 81.

[7]      The first of these was Ms Woodward’s genuine ignorance of the law.  In an affidavit filed with the District Court, Ms Woodward deposed that she thought the park where the incident occurred was not a road for legal purposes.  Mr Iorns also suggested that there was scope for a belief that a 50cc children’s motor bike did not constitute a vehicle that would be regulated by the provisions of the Act.  However, there  was  no  evidence  of  Ms Woodward  having  such  a  belief  at  the  time,  and Mr Iorns did not press this additional point once it was questioned during argument.

[8]      Ignorance   of   the   law   has   previously  been   recognised   as   potentially constituting  a  special  reason.2    The  circumstances  in  the  authority  cited  are analogous in that the driver there was conscious he had been drinking, but decided to move his vehicle within a paddock that was being used as a parking area for those attending an agricultural show.  He considered that driving within the paddock would not  involve  an  offence  as  it  was  not  “a  road”.    Here,  there  was  scope  for

Ms Woodward to take the same view in  respect of a  grassed park area so that ignorance of the law is, as a matter of law, conceptually capable of contributing to “special reasons”.

[9]      The second of the three matters raised as contributing to “special reasons relating to the offence” is that the nature of the driving, being at a low speed, in a public park without typical vehicle access, and on a child’s motor bike constitutes a special reason.   An aspect of impaired driving that is generally important to its relative seriousness is the danger it poses to both the driver and to others. Conceptually, driving in circumstances where any usual extent of risk to the driver or

to others did not arise, such as where a vehicle has only been moved a short distance, is capable of constituting a special reason.3

[10]     The last  of the three  factors  advanced  on  her  behalf  by  Mr Iorns  is  the relatively lengthy passage of time that has elapsed since the earlier relevant convictions.  Mr Iorns acknowledged a divergence of view in previous decisions, as to whether the passage of time since the earlier relevant convictions can constitute a special reason for the purposes of s 81 of the Act.  His written submissions urged that the Court adopt the approach in Maniapoto v Police, in which it was held that two previous qualifying convictions in June 1988 (ie more than 20 years old at the time of sentencing) could be considered a special reason for the purposes of s 81.  In that

case, the period of disqualification was reduced to six months.4

[11]     More recently, in Merry v Police, the approach in Maniapoto was considered, but not followed.5   Ronald Young J reasoned that the extent of time since the relevant previous convictions was a characteristic of the offender, but not the offending, and that it is the latter category of matters that might constitute special reasons for the purposes of s 81.  This approach is suggested as the preferable one by the authors of a text on the provisions of the Act.6

[12]     During argument, Mr Iorns conceded that the approach in Merry should be followed.  I agree with Mr Ferrier’s analysis that the existence of relevant previous convictions is not an element of the offending, but rather a circumstance of the offender  which  goes  to  the  range  of  penalties  that  would  apply on  conviction. Accordingly, the period of time that has elapsed since Ms Woodward’s two previous convictions cannot constitute a “special reason” for the purposes of s 81.

[13]   I turn next to a fresh consideration of whether the particular factual circumstances raised on the appeal are capable of constituting “special reasons”.  As to Ms Woodward’s ignorance of the law, it amounts to an apparent belief that even

although she could have been impaired in a way that would be illegal for her to drive

3      See, for example, East v Ministry of Transport HC Christchurch M21/85, 4 March 1985.

4      Maniapoto v Police HC Rotorua CRI-2008-463-1, 18 April 2008.

5      Merry v Police HC Nelson CRI-2009-442-7, 19 May 2009.

6      Campbell, Mark and O’Driscoll Brookers Law of Transportation (looseleaf ed, Brookers) at

[LT81.08(3)(g)].

on a road, she thought she could lawfully be in control of a vehicle in a public park. The nature of the provision in the law of which a convicted person is ignorant can be relevant to the weight that it might be given.  I am not persuaded that a belief by Ms Woodward that she could “get away with” being an alcohol-impaired driver because she was not on a formed road justifies any substantial weight in her favour. I am reinforced in that view because of the view I have also taken in relation to the extent of risk posed by her driving conduct.

[14]     On that second reason, the sentencing Judge considered the relative extent of risk posed by the driving conduct:7

It is said that there was little risk posed to everyone and you were just there with your family, but, of course, there was risk to them and clearly there was risk to yourself.

[15]     Mr Iorns urged that the driving of the motor bike must inevitably have been at a low speed.  However, Mr Ferrier objected that in fact the speed of travel had not been established, and that the seriousness of Ms Woodward’s injuries tends to either count against the travel inevitably being at a low speed, or otherwise demonstrates that substantial risk was involved, irrespective of speed.  It is by no means clear how far Ms Woodward may have attempted to travel, but for the accident, and a public park is certainly an area in which impaired driving can pose a threat to others.

[16]     The reality is that wherever she was when assuming control of the motor bike, her doing so whilst alcohol-impaired created a risk to herself and others.   In view of the extent of harm caused by alcohol-impaired drivers, the law is entitled to view seriously any breach of this prohibition.

[17]     Accordingly, on the facts I would not be prepared to accept that the nature of the  driving  constituted  a  special  reason  that  might  be  taken  in  Ms Woodward’s favour on the s 81 analysis.

[18]     Mr Iorns  readily  persuaded  me  that  the  outcome  of  a  year  and  a  day’s

disqualification is a harsh one for Ms Woodward, particularly in light of the on-going impact  of  her  injuries.    However,  that  is  not  a  ground  for  deviating  from  the

7      New Zealand Police v Woodward DC Upper Hutt CRI-2010-078-1692, 22 June 2011 at [10].

requirement for a period of disqualification.  I would not adopt the same approach as the sentencing Judge in suggesting that Ms Woodward should, more readily than other road users, have appreciated the status of the park as a public road merely because of her previous convictions.  However, the Court is entitled to treat her as conscious of the risk she assumed in driving as she did in a place to which others, even if no more than her family, had access and would therefore be exposed to the risk inherent in her driving whilst impaired.

[19]     For all those reasons, the appeal is dismissed.

Dobson J

Solicitors:

John Gwilliam, & Co Ltd, Upper for appellant

Crown Solicitor, Wellington for respondent