The Queen v Stone [2009] NZCA 539 (17 November 2009)

Court of Appeal of New Zealand

[Index] [Search] [Download] [Help]

---

The Queen v Stone [2009] NZCA 539 (17 November 2009)

Last Updated: 24 November 2009

IN THE COURT OF APPEAL OF NEW ZEALAND

CA485/2009

[2009] NZCA 539

THE QUEEN

v

CHRISTOPHER GORDON STONE

Hearing: 14 October 2009

Court: Glazebrook, Potter and Wild JJ

Counsel: C B Wilkinson-Smith for Appellant
B D Tantrum for Crown

Judgment: 17 November 2009 at 4.00 pm

JUDGMENT OF THE COURT

The appeal is dismissed.
____________________________________________________________________

REASONS OF THE COURT
(Given by Wild J)

Introduction

[1] After Mr Stone had pleaded guilty to an eighth offence of driving with excess breath alcohol, Judge Blackie sentenced him to eight months home detention and disqualified him from driving for three years commencing immediately. This occurred in the District Court at Manukau on 16 July 2009. Mr Stone appeals, but only against the period of disqualification. He claims it was excessive, maintaining that 18 months was the appropriate period.

The facts

[2] At about 6.50 pm on Saturday 18 June 2005, Mr Stone was driving a Holden vehicle on State Highway 1 near Otahuhu. The police noticed the car was overloaded with passengers and stopped it. While the police were speaking to Mr Stone, they noticed signs of “recent alcohol intake”. A breath test resulted in a reading of 723 micrograms of alcohol per litre of breath (against the legal limit of 400).
[3] For the reasons we detail in [4]-[8], the matter was not dealt with by the District Court until July 2009. By that stage, Mr Stone’s recollection of the incident was hazy. He said that it was his daughter’s 18th birthday that day. After drinking “a few beers” in the afternoon, he went to sleep. His daughter woke him and asked whether he would drive her and her friends to a function. He maintained he felt “as good as gold” and quite able to drive. He said that neither his daughter nor any of her friends expressed concern about his driving ability.

What happened in the District Court

[4] Unusually, Mr Stone elected to be tried by a jury. In breach of his bail, he did not appear at a callover on 27 October 2005. After being arrested, he was bailed again, this time to appear at a pre-trial callover on 24 November 2005, with his trial scheduled to start on 28 November. He failed to appear at the callover and the fixture for his trial had to be vacated.
[5] Judge Blackie described what ensued in this way:

You somehow went beneath the radar and removed yourself from the Court process until you were eventually arrested on 3 April 2009.

[6] Following two further court appearances, Mr Stone pleaded guilty on 14 May 2009, and was remanded for sentence on 2 July. A pre-sentence report recommended a sentence of community work.
[7] When Mr Stone appeared for sentence before Judge Blackie on 2 July, the Judge spoke to him in appropriately stern terms. He made clear how unimpressed he was by Mr Stone’s attempts to postpone justice. He conveyed to Mr Stone that he considered the recommended sentence of community work totally inadequate, and had in mind a sentence of 18 months imprisonment. Only a strong plea from counsel, based on Mr Stone’s responsibilities for his elderly mother-in-law and his 14 year old son, persuaded the Judge further to remand Mr Stone, so the Court could obtain the report required before a sentence of home detention could be imposed.
[8] On 16 July, armed with a report recommending that Mr Stone’s home was suitable for his detention, Judge Blackie sentenced Mr Stone to eight months home detention with special conditions. Those conditions included that Mr Stone abstain from alcohol during the sentence, and attend an alcohol rehabilitation programme as directed.
[9] As we mentioned, the appeal is directed solely at the period of three years disqualification from driving imposed by the Judge. There is no challenge to the sentence of home detention.

The law

Statute law

[10] The penalties prescribed in s 56 Land Transport Act 1998 for contravention of the specified breath or blood alcohol limits are:

	Adult 1st and 2nd offences	Adult 3rd and subsequent offence
Maximum term of imprisonment	3 months	2 years
Maximum fine	$4,500	$6,000
Minimum mandatory period of disqualification	6 months	1 year

[11] In addition, s 65 of the Act imposes mandatory penalties for repeat excess blood/breath alcohol (EBA) offences, by seriously intoxicated drivers. Where the person convicted has a conviction within the previous five years, and one of the two offences involved a count exceeding 1,000 micrograms of alcohol per litre of breath the Court must:

(2) ...

(b) ... make an order requiring the person to attend an Assessment Centre and disqualifying the person from holding or obtaining a driver licence until the Agency removes that disqualification under s 100.

[12] Section 100 of the Act requires the New Zealand Transport Agency to order the removal of the driving disqualification if satisfied that the applicant is fit to hold a driver licence. Fitness is to be assessed on a report from a medical practitioner attached to an assessment centre, and any other evidence submitted by the applicant or otherwise available to the Agency relating to the medical condition of the applicant. Section 100(3) provides:

(3) No order may be made under subsection (1) if the applicant concerned is subject to an order made under section 65 that has been in force less than 1 year and 1 day.

Case law

[13] Mr Wilkinson-Smith based his submission that 18 months was the appropriate disqualification period on the decision of Clotworthy v Police (2003) 20 CRNZ 439 (HC). Mr Clotworthy had appealed a sentence of 12 months imprisonment for a seventh EBA conviction. However, the judgment at [10] specifically records that the period of 18 months disqualification imposed by the District Court Judge was not appealed against. Thus, Clotworthy is not an authority on disqualification periods, beyond the fact that the 18 months period imposed was not challenged. Because the disqualification period was not an issue in Clotworthy, details of the disqualification period are not given for the cases collated at [17] [18] of the reported judgment.

Any correlation between the number of convictions and length of disqualification?

[14] To test whether some correlation exists between the number of EBA convictions and the length of disqualification, we plotted on a graph the period of disqualification imposed in:

• (a) The High Court decisions referred to in Clotworthy (in the nine cases where that is recorded in the decision).
• (b) A sample of approximately 30 recent (2008-2009) decisions given in District Courts around the country.

[15] The graph below shows the results. The size of the ‘bubbles’ is proportionate to the number of decisions. For example, the largest circle is for the four District Court decisions where a disqualification period of 18 months was imposed in cases where the offender had five previous EBA convictions.

[16] Although this graph shows the computer generated trend line, it is readily apparent that there is no real correlation between the number of EBA convictions and the period of disqualification imposed.
[17] There are at least three explanations for this. The first is the mandatory disqualification regime imposed by s 65, described in [11]-[12]. Whenever a recidivist EBA offender is indefinitely disqualified, it removes any correlation between the number of previous convictions and the length of disqualification.
[18] Secondly, the ability of a District Court Judge to disqualify a third or subsequent EBA offender indefinitely (because only a minimum period of disqualification is mandated). District Court Judges do this regularly, when they consider the offender has reached the stage where he or she needs to be disqualified from driving unless and until they can demonstrate positively that they are again fit to hold a driver licence. Indefinite disqualification is for a minimum period of a year and a day, ie a day over the one year mandatory minimum period of disqualification. Indefinite disqualification can perhaps be viewed as the drink-driving equivalent of preventive detention. As already explained, whenever indefinite disqualification is imposed, it defeats any correlation between the number of convictions and the period of disqualification.
[19] Thirdly, the impact on disqualification periods of District Court Judges applying the criteria listed at [20] in Clotworthy. For example, not all previous convictions are given the same weight. If an offender has ten previous convictions, but nine of them occurred in the 1980s, the period of disqualification is likely to be shorter than that imposed on an offender who has accumulated five EBA convictions in the previous 18 months (other factors being equal).
[20] Another example of the way in which the Clotworthy criteria affect any correlation is to compare offender A with offender B. A has been convicted for the ninth time, but her alcohol level is only just over the limit and she was not driving in an untoward manner: she was detected as a result of a random check. The period of disqualification imposed on A may well be less than that imposed on offender B. Although B has fewer (five) previous convictions, his sixth was committed while on bail, the reading was over twice the limit and B was stopped as a result of dangerous driving.
[21] The upshot of all this is that we are satisfied no correlation can be drawn between the number of EBA convictions and the period of disqualification imposed.

The Judge’s reasons for the three year disqualification period

[22] In this case, Judge Blackie considered the appropriate sentence was 18 months imprisonment. He explained to Mr Stone that there were:

[4] ... Two reasons for that. One of course is that this is your eighth occasion. The second is that you elected trial by jury but you did not turn up for trial. You disappeared, laid low for some years and it was only recently that you have been re-arrested.

[23] Dealing with the first reason, six of Mr Stone’s previous seven EBA convictions were in the years 1980-1992, with the seventh in April 2002. Thus, he had not been apprehended for drink-driving for a little over three years when the present offence occurred on 18 June 2005. But the Judge could disregard the ensuing four years, during which Mr Stone “went beneath the radar”. The Judge’s second reason is very much specific to this case. It is a neat demonstration of the type of factor which satisfies us that no correlation exists between the number of EBA convictions and the period of disqualification imposed.
[24] It was only the appellant’s family responsibilities which persuaded the Judge to impose a sentence of eight months home detention. The Judge clearly saw the three year disqualification period as offsetting the leniency of a comparatively short term of home detention. What the Judge imposed was a sentence ‘in the round’. This emerges clearly from the Judge’s final sentencing remark:

[15] There you are, so you have got eight months’ home detention with the conditions that I have outlined and you will not be driving again for another three years.

[25] Viewed as a component of an overall sentence for an eighth EBA conviction in the circumstances here (driving a car full of young people with a reading approaching double the legal limit), we cannot regard the three year disqualification period as manifestly excessive.

Result

[26] The appeal is dismissed. The three year disqualification period stands.

Solicitors:
Crown Law Office, Wellington