F v Police HC Auckland CRI 2009-404-169 [2009] NZHC 915 (3 August 2009)

Last Updated: 13 January 2016

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CRI 2009-404-169}

F

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 3 August 2009

Appearances: Appellant in person

Ms Duncan for respondent

Judgment: 3 August 2009

_{JUDGMENT OF WINKELMANN J}

S T F , 2D Takanini School Road Extension, Takanini

_{Crown Solicitor, Auckland}

F V NEW ZEALAND POLICE HC AK CRI 2009-404-169 3 August 2009

[1] On 28 May 2009 Mr F was sentenced by Judge McAuslan in the District Court at Papakura to 100 hours community work and disqualified from holding or obtaining a driver’s licence for one year and one day and disqualified indefinitely under s 65 of the Land Transport Act 1988 for driving with excess breath alcohol, being his third subsequent offence of this type (an offence against s 56(1) of the Land Transport Act 1998). He had pleaded guilty to that offence.

[2] Mr F appeals against the sentence on the grounds that being disqualified for one year and one day from applying for or holding a licence will cause him undue hardship. This is because he needs to be able to drive using his category 2 licence, in the course of his employment. His current position is a leading hand in a construction company. Mr F has provided a letter from the human resources manager for his employer confirming that Mr F ’s role requires him to be able to drive, and that if he does not obtain a limited licence his employment will be at risk.

[3] The relevant factual background is that on 11 January 2007 Mr F was convicted in the Papakura District Court on a charge of driving with excess breath alcohol. The offending occurred on 23 December 2006, and on that occasion the amount of alcohol present on his breath was 789 micrograms per litre of breath. Mr F was fined $600, disqualified from driving for six months and ordered to pay Court costs of $130. On 26 September 2007 Mr F was convicted in the Manukau District Court on a charge of driving with excess blood alcohol for offending on 21 July 2007. The amount of alcohol present in his blood on that occasion was 151 milligrams per 100 millilitres of blood. He was sentenced to 80 hours community work and disqualified from driving for eight months.

[4] At 12.18 am on Sunday 19 April 2009 Mr F was the driver of a Toyota motor vehicle travelling east along Great South Road, Papakura. He was stopped at a compulsory breath test checkpoint and when spoken to by the police exhibited signs of recent alcohol consumption. Breath testing procedures were carried out and his breath was found to contain 570 micrograms of alcohol per litre of breath. Mr F told the police that he had drunk 10 beers prior to driving his car.

Pursuant to sections 95 & 96 of the Land Transport Act 1998 Mr F had his driver’s licence suspended and his vehicle impounded for 28 days as he had two previous convictions for excess breath alcohol in the last four years.

[5] Mr F asks this Court to remove the indefinite disqualification and disqualification for one year and day and substitute a sentence of community work. However, as I have explained to Mr F he was convicted under ss 56(1) & (4) of the Land Transport Act and because he has had three convictions for excess breath or blood alcohol within five years, s 65(4) of that Act applies to him. Under s 65(4) the Court is mandatorily directed to make an order indefinitely disqualifying Mr F from holding or obtaining a driver’s licence. Section 100 provides that the New Zealand Transport Agency is unable to make an order under s 100 of the Land Transport Act removing the disqualification until the disqualification has been in force for one year and one day. The District Court Judge was required to make such an order. She was, and this Court is, unable to substitute a community based sentence under s 94 of the Act or reduce the disqualification under s 99.

[6] In terms of s 103 Mr F may not apply for a limited licence (s 103(2)(a)).

[7] In the circumstances Mr F ’s appeal must fail. The District Court Judge did not err in taking the steps that she did. Similarly, this Court has no discretion to impose a lesser period of disqualification than that imposed by the District Court Judge. I have no doubt that the orders are going to cause Mr F and his family hardship and I regret that. However, as Mr F must appreciate, that hardship is the consequence of his own actions.

[8] The appeal is dismissed.

Winkelmann J