Woolston v Police - [2013] NZHC 3225

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2013-404-000315 [2013] NZHC 3225

BETWEEN ROY HOWARD WOOLSTON Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 3 December 2013

Appearances: J Mooney for Appellant
R N Thompson for Respondent

Judgment: 3 December 2013

(ORAL) JUDGMENT OF ANDREWS J [Appeal against sentence]

Solicitors:
Public Defender, Auckland (Appellant) Meredith Connell, Auckland (Respondent)

WOOLSTON v NEW ZEALAND POLICE [2013] NZHC 3225 [3 December 2013]

Introduction

[1] On 27 September 2013 the appellant pleaded guilty to, and was convicted and sentenced by Judge Bouchier in the Auckland District Court on, a charge of refusing the permit a blood specimen to be taken, that being his third or subsequent conviction for that offence, under s 60 of the Land Transport Act 1998 (“the Act”). The appellant was sentenced to 150 hours community work, supervision for six months (with a special condition to undertake alcohol treatment or counselling as directed by the probation officer), and disqualified from holding or obtaining a
driver’s licence for one year and one day.1

[2] The appellant has appealed against the period of disqualification. It is submitted that the Judge erred in concluding that the length of time since his earlier traffic offending could not constitute a “special reason” justifying a departure from the mandatory period of disqualification period, pursuant to s 81 of the Land Transport Act.

Facts

[3] The appellant has previous convictions for refusing to undergo a blood alcohol test in 1988 and again in 1991. Under s 60(3)(b) of the Act, the appellant was required to be disqualified from driving for more than one year unless, pursuant to s 81(1) of the Act, “for special reasons relating to the offence” the Court thought it fit to order otherwise.

[4] On 28 September 2013, the appellant drove his vehicle onto a road verge. The vehicle stopped, partially blocking his lane. The police attended, and it appeared to them that the appellant had been consuming alcohol. The appellant was unable to provide a sufficient sample of breath for analysis, and was then asked to undergo a blood alcohol test. He refused to allow a sample of venous blood to be taken.

District Court judgment

[5] It was submitted in the District Court that the Judge should consider whether the length of time since the appellant’s two previous offences of refusing to give a blood sample constituted grounds for the Court not to order the mandatory minimum period of disqualification. The Judge rejected this submission.

Appeal issues

[6] I note, first, that this is an appeal against sentence under s 244 of the Criminal Procedure Act 2011. Under s 250, the Court must allow the appeal if it is satisfied that for any reason, there is an error in the sentence imposed on conviction; and that a different sentence should be imposed.

[7] I am therefore required to consider, first, whether as a matter of law, the “historical nature” of the appellant’s earlier convictions could amount to “special reasons relating to the…

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.

Continue reading Woolston v Police

Details

AGLC: Woolston v Police [2013] NZHC 3225
Case: [2013] NZHC 3225
Decision Date: 3 December 2013

CaseChat Overview and Summary

The case of Woolston v Police involves Roy Howard Woolston, who appealed against his sentence for refusing to permit a blood specimen to be taken, which was his third or subsequent conviction under section 60 of the Land Transport Act 1998. Woolston was sentenced to 150 hours of community work, six months of supervision, and a disqualification from holding or obtaining a driver’s licence for one year and one day. He appealed against the period of disqualification, arguing that the length of time since his earlier traffic offences constituted a "special reason" under section 81 of the Act, justifying a departure from the mandatory disqualification period. The primary legal issues were whether the historical nature of the appellant's previous convictions could be considered "special reasons" under section 81 and whether the court should reduce the period of disqualification if such reasons existed.

The court examined the conflicting High Court authority on the matter and concluded that, based on the wording of section 60 of the Act, the historical nature of the convictions could not constitute "special reasons" as they do not form part of the offence itself. Instead, the length of time since previous convictions is a mitigating factor to be considered during sentencing. The court referenced the Court of Appeal's decision in R v Cameron, which held that previous convictions were not ingredients of the offence under a similar scheme in section 56 of the Act. Consequently, the appeal was dismissed, and the original sentence, including the period of disqualification, was upheld.

Orders