R v Police HC Auckland CRI 2009-404-201 [2009] NZHC 933 (31 August 2009)

Last Updated: 14 January 2016

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CRI 2009-404-201}

BETWEEN R

Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 31 August 2009

Counsel: P Borich for the Appellant

S Herdson for the Respondent

Judgment: 31 August 2009

(ORAL) JUDGMENT OF POTTER J

_{on appeal against sentence}

Solicitors: Rice Craig, P O Box 72-440, Papakura 2244

Crown Solicitor, P O Box 2213, Auckland 1140

R V NEW ZEALAND POLICE HC AK CRI 2009-404-201 31 August 2009

Introduction

[1] R appeals against the sentence imposed in the District Court following his guilty plea to a charge under s 57(2) of the Land Transport Act 1998 (“the Act”), that being a person younger than 20 years he drove a motor vehicle on a road while the proportion of alcohol in his blood as ascertained from a blood specimen subsequently taken, exceeded 30 milligrams of alcohol per 100 millilitres of blood. The result of the test was that Mr R had 80 milligrams of alcohol per 100 millilitres of blood – more than two and a half times the legal limit for a person of his age. I understand that at the time he was apprehended he was aged 19 years 8 days.

[2] The appellant was sentenced in the District Court. He was fined $300 together with medical expenses of $80 and an analyst’s fee of $93. He was also disqualified from holding or obtaining a motor vehicle driver’s licence for a period of six months commencing on 3 July 2009.

[3] Pursuant to s 57(3) of the Act a person committing the offence to which Mr R entered a guilty plea, is liable to a maximum penalty of imprisonment for a term not exceeding three months or a fine not exceeding $2,250 and the Court must order the person to be disqualified from holding or obtaining a driver’s licence for three months or more.

[4] Mr R appeals against:

a) The length of the disqualification; and b) The imposition of medical expenses.

Medical expenses

[5] I shall deal first with this matter on which there is common ground between counsel. The Court of Appeal has held that such medical expenses are properly

imposed: Police v Barr [2008] NZCA 124. The Supreme Court has granted leave in respect of that matter but no judgment has yet issued from the Supreme Court. Accordingly, Mr Borich accepts that the medical expenses under the law as it currently stands are properly imposed. There is no question that the fees of the analyst are properly imposed. In passing I note that no Court costs were independently imposed on Mr R . So the total charges for which he is liable pursuant to the District Court judgment are $173.

Disqualification period

[6] Mr Borich submitted that the Judge appears to have approached the issue of disqualification on the wrong principle. He refers to an exchange with Judge Cunningham on 3 July 2009 where the Judge appears initially to have sentenced Mr R on the basis that he was, as she said:

... right on the adult limit but of course because you are under 20 the limit is

30 milligrams of alcohol per litre of blood.

[7] But having imposed a period of disqualification of six months starting from that date, when alerted to that aspect by Mr Borich, the Judge replied:

But he is charged as an adult is he not?

[8] When reminded by Mr Borich that Mr R was under 20, the Judge apologised and said she thought he had been charged as an adult. She then continued that she thought the period of disqualification should be six months and she did not see why it should be any different from somebody who is an adult, referring no doubt to the statutory requirement for a minimum period of disqualification for an adult of six months. But of course, an adult to be convicted of such an offence, must exceed the limit of 80 milligrams per 100 millilitres of blood.

[9] Mr Borich also referred to the decision in Dayson v Police HC AK CRI

2008-404-88 10 June 2008 Winkelmann J where there was a similar excess alcohol test result and the appellant was of a similar age. A period of six months disqualification was reduced to five months disqualification notwithstanding there

was no guilty plea and an accident associated with the offending. In that case the appellant was also ordered to pay $400 Court costs.

[10] In allowing the appeal Winkelmann J said at [23] that she was persuaded that six months was more than was required to serve the purposes of denunciation, deterrence and protection of the public. She accordingly reduced the period of disqualification to five months.

[11] Mr Borich referred to the general absence of any helpful authority for the Court, but submitted on the strength of Dayson, that in this case where the appellant pleaded guilty and there was no associated accident, the period of disqualification of six months imposed by the District Court Judge is manifestly excessive. He also submitted that the appellant being 19 years 8 days is very near the age of 20 when the adult limit of 80 milligrams would apply such that he would not have been able to be convicted of this offence.

[12] Ms Herdson for the Crown responded to that submission, that given the presumed maturity of Mr R , he could be expected to act in a more responsible way in respect to drink driving. In the Crown’s submission the period of disqualification was a matter within the discretion of the District Court Judge and was not manifestly excessive. The Crown noted that the purpose of disqualification is primarily for public safety and that in this case the blood alcohol level was significantly in excess of the legal limit. Ms Herdson submitted that the sentence was not manifestly excessive.

[13] It would seem to me there was some confusion on the part of the District Court Judge when she considered the period of disqualification to be imposed on Mr R . Mr Borich made submissions that in the case of a first offender, even in a situation where the limit has been exceeded considerably as it was in this case, a period of disqualification twice the minimum would be unusual and, he submitted, manifestly excessive.

[14] I am persuaded by those submissions. Like Winkelmann J in the case of

Dayson I do not consider that a period of disqualification of six months is required to

serve the purposes of denunciation, deterrence and protection of the public. In this case there was no associated accident or errant driving and there was a guilty plea. However, the legal limit of 30 milligrams per 100 millilitres was considerably exceeded, as I have said by more than two and a half times. I am not therefore prepared to disqualify only for the minimum period.

Result

[15] The period of disqualification will be quashed and substituted with a period of four months disqualification to run from 3 July 2009.