Y v Police HC Auckland CRI 2006-404-223

[2006] NZHC 1351

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2006-404-223

Y

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         2 November 2006

Appearances: Appellant in person

M R Harborow for Respondent

Judgment:      2 November 2006

JUDGMENT OF KEANE J

Solicitors

Crown Solicitor, Auckland

Y V POLICE HC AK CRI 2006-404-223  2 November 2006

[1]      On 6 June 2006, having pleaded guilty at a status hearing to driving while disqualified on 4 April 2006, Y   was convicted, fined $500 and disqualified from holding or obtaining a driver’s licence for six months. On the face of it he appeals both his conviction and his sentence, but he has confirmed that his appeal is confined to sentence only.

[2]      Mr Y  , who appeared personally on his appeal, makes no specific complaint about either the fine or the term of disqualification imposed. His complaint is rather, as I understand it, that one or both must be manifestly excessive, when set against the circumstances in which he drove, of which the Judge was only generally aware. He does not consider that he was fairly heard.

Context

[3]      When Mr Y   first appeared on 4 May 2006 he entered, on the advice of the duty solicitor, an interim plea of not guilty for the advantage that a status hearing might give him. At that latter hearing, of which he now complains, he does confirm that he admitted the offence, that his plea was entered correctly and that he has no intent to resile from it.

[4]      Nor  are  the  essential  facts  on  which  the  Judge  imposed  sentence  in themselves in dispute. The summary blandly narrates that:

On 26 August 2005 Mr Y   appeared in the Auckland District Court charged and convicted of driving with excess breath alcohol. He was disqualified from driving for nine months beginning on 26 August 2005 and ending on

25 May 2006.

At 7.35 pm on Tuesday 4 April 2006 the defendant was the driver of a motor vehicle  registration  XQ  6012  on  Canada  Street,  Auckland  City.  The defendant was stopped as part of a routine traffic stop. He failed to produce a driver’s licence and admitted that he was disqualified.

The defendant is a 51 year old male currently employed as a chef. He has previously appeared before the Court.

[5]      Mr Y  ’s convictions, as they were before the Judge, are also undisputed:

two excess breath alcohol offences, one in 1994 and one in 2005, in respect of each

of which he was fined and disqualified, that latter disqualification still running at the date of the offence. Also two minor driving offences preceding the 1994 conviction.

[6]      What Mr Y   puts in issue is how adequately the Judge understood why he committed the offence and why that was. Neither the duty solicitor representing him, nor the Judge, he contends, understood his account either fully or correctly and he was not allowed himself to say.

Mr Y  ’s predicament

[7]      On the evening of 4 April Mr Y   was, he said, in this predicament. His wife had just come home from hospital with their six or seven day old child. She had undergone a caesarean section and was incapable of caring for the child and he had to do so.  He has a 16 year old son but his son was not at home that evening. Nor did he know any neighbour in the multi-storey apartment building in which and his family were living to whom he could turn.

[8]      The child, Mr Y   said, had been crying for some time and he thought needed to be fed. To do that he needed to sterilise a milk bottle using the microwave. In his haste he broke the microwave plate and his only alternative, as he saw it, was to get a  microwave he  owned  at  Foodcourt,  perhaps  two  minutes  away on  the Karangahape Road. He needed, however, to take a taxi because he had suffered a work accident and was incapable of lifting. He attempted to get one. The driver would not take him. The distance to be travelled was too short. He elected to take his car and he was apprehended.

[9]      Mr  Y    contends,  therefore,  that  this  was  an  emergency  in  which  he responded, knowing of the disqualification to which he was subject, but seeing the child’s need for care as urgent and overriding.

[10]     The Judge, in his decision on sentence, clearly understood the gist of what Mr Y   had to say. He recounted accurately that Mr Y   wanted to sterilise the bottle for the newly born child, that Mr Y  ’s wife was not in a position to help, that the breaking  of  the  microwave  plate  was  the  precipitating  event  and  that  this  was

‘something of an emergency’.

[11]     Accepting all that, the Judge did not accept that Mr Y   was without choices. Mr  Y    elected,  the  Judge  said,  not  to  get  a  cab.  He  chose  to  drive.  While recognising that this Mr Y  ’s first such offence, the Judge saw no alternative but to fine him $500 and to impose the minimum mandatory six month term of disqualification.

Issue on appeal

[12]     The issue on this appeal is whether the Judge, on a full understanding of the facts, erred in fining Mr Y   as he did, or in declining to exercise the discretion given by s 81 of the Land Transport Act to excuse Mr Y   wholly or partly from the mandatory term of disqualification. The answer depends on how well the Judge understood and weighed Mr Y  ’s explanation about which he was clearly sceptical, at least as to the ultimate choice.

[13]     On this appeal, on the facts as they were before the Judge and as they have been elaborated to me, the Judge made one error according to Mr Y  ; in holding as he did that Mr Y   chose not to take a taxi. The other, the omission to remark that Mr Y   had, as he says, difficulty lifting, may simply have been something the Judge was unaware of.

[14]     None of this is a matter of record. I am asked in effect to revisit the penalty imposed as if I were imposing it myself; something about which I have to be very cautious. As against that, however, I am as well placed as the Judge to assess such facts as there are; and if in this less pressured context I conclude that the Judge may have acted on a misunderstanding, that needs to be redressed.

[15]     Having heard what Mr Y   had to say, and I am prepared to accept what he did say, I do not consider that the fine imposed on him could be described as manifestly excessive. He may have been faced with an emergency and this may have been his first such offence, but a fine of $500, when contrasted with the maximum,

$4,500 , appears to me to be beyond challenge.

[16]     The question is rather, I consider, whether the Judge could and should have treated  as  special  the  circumstances  on  which  Mr  Y    relied  and  that  is  to  be assessed against the classic statement, in Whittle v Kirby [1947] KB 194. They must go to the offence rather than the offender and, though not amounting to a defence, directly mitigate or extenuate the seriousness of the offence.

[17]     The discretion is, I consider, able to be exercised in cases of emergency of the kind that Mr Y   advances. The issue for the Judge and on this appeal is whether Mr Y  ’s emergency left him with alternatives other than taking his car. On this appeal, having heard Mr Y  , I question whether any alternative was as open to him as the Judge supposed, more especially as I am prepared to accept that Mr Y   did attempt to get a taxi.

[18]     Also while objectively, and in retrospect, the emergency might not seem either as acute or insoluble as it seemed to Mr Y  , I accept that he was impelled by an overwhelming concern for a very young child and for his wife’s vulnerability and that he was not thinking clearly.

[19]     Those factors lead me to allow the appeal to this extent. The discretion under s 81 can and, I consider, ought properly to be exercised to reduce the period of disqualification to three months as from 6 June 2006. The effect of that will be that when Mr Y   obtains from the Secretary for Transport a fresh licence he may

resume driving.

P.J. Keane  J