H v Police HC Auckland CRI 2010-404-233 [2010] NZHC 1868 (18 October 2010)

Last Updated: 25 January 2017

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CRI 2010-404-233}

H

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 18 October 2010

Appearances: G C Gotlieb for Appellant

F M Culliney for Respondent

Judgment: 18 October 2010

_{JUDGMENT OF KEANE J}

Solicitors:

Crown Solicitor, Auckland

H V POLICE HC AK CRI 2010-404-233 18 October 2010

[1] On 21 June 2010 H , who had pleaded guilty to driving with an excess breath alcohol level on 7 February 2010, 444 micrograms of alcohol per litre of breath, was convicted and fined $350 and Court costs. She was disqualified for the minimum mandatory six month period.

[2] The order for disqualification presently stands suspended because Ms H appeals it. The sentencing Judge erred, she contends, in declining her application to be excused disqualification for 'special reasons relating to the offence'.

Decision to drive

[3] The undisputed summary of facts on which the Judge sentenced narrates that at 7 am on Sunday, 7 February 2010, Ms H , the driver of a BMW motor vehicle, was stopped on State Highway 1 in central Auckland at a breath testing check point. She showed signs of recently having consumed alcohol. She was breath tested. The level was as I have described. She admitted to having had two glasses of wine the previous evening.

[4] The statement concludes by saying that Ms H is a 46 year old teacher who has not previously appeared in the Court. And, on sentence, she applied to be excused disqualification, an application the police did not oppose, by explaining that she had driven that morning on the instant in response to unexpected family pressure and cultural expectations.

[5] The day before, she said, she and her extended family had been to the beach. Her sister and her sister's husband, their children and a cousin had returned to her house in central Auckland. She and her sister had stayed up late talking about a family reunion in Australia from which they had just returned. Between 2 - 3 am she said she consumed two glasses of wine, then went to bed.

[6] At 7 am, Ms H said, her sister woke her. Their cousin needed to go to church in Otara. The cousin was to have been driven there by the sister's husband, but he had not returned from delivering newspapers. The cousin's mother, Ms

H 's aunt, had rung and insisted that her cousin be driven home. They both had to go to church and both needed a ride.

[7] Within the Samoan culture, Ms H said, church attendance is very important. It is very much expected. Where, moreover, an elder makes a request, that is taken very seriously. Though she had only had four hours sleep and felt tired, Ms H said, she did not feel affected by alcohol. Without thinking further she agreed to assist; a decision she would not have made, she said, had she had more time to think.

Sentence under appeal

[8] Though the police did not oppose Ms H 's application, the Judge considered himself obliged to impose the minimum mandatory term. After carefully reviewing Ms H 's evidence, he held that in law the reason why she drove, even set against the context, did not constitute a 'special reason' for excusing her from disqualification. He said:

Sometimes there is a fine line between special reasons that relate purely to the offender and those that relate to the offence itself but in this instance the circumstances so peculiarly relate to you and not the offence itself that in my view the circumstances do not, in law, constitute special reasons.

[9] Most tellingly, the Judge considered, Ms H herself had said that having just woken up, she agreed to drive without thinking. Even within the cultural context within which she made that decision, and even though her breath alcohol level was relatively low and there was no driving fault, the Judge held, that could not be sufficient to constitute a 'special reason' to excuse her from disqualification.

Principles governing discretion

[10] The issue whether in this the Judge was excess of jurisdiction or clearly excessive or inappropriate, in terms of s 121(3)(b) of the Summary Proceedings Act

1957 must be set against the duty imposed on him by s 81(1) of the Land Transport

Act 1998 to disqualify for six months 'unless for special reasons relating to the offence it [the Court] thinks fit to order otherwise'.

[11] A 'special reason' has long been defined to be 'a mitigating or extenuating circumstance, not amounting in law to defence to the charge, yet directly connected with the commission of the offence, and one which the Court ought properly to take into account when imposing punishment.'^[1] This involves a threefold analysis, whether in law the circumstance relied on amounts to a 'special reason', whether that exists in the case and whether the Court should exercise its discretion in whole or part.^[2]

[12] The fact that there is a discretion must, conversely, be set against the otherwise absolute duty the Judge was under to disqualify for the minimum term. That discretion, Tipping J said in McGowan v Police,^[3] is significant in itself for:

the section accepts that there will be certain circumstances in which the mandatory minimum period need not be imposed. That does not mean to say that no disqualification should be imposed. It simply gives the Court a discretion, if there are special reasons, to impose either no disqualification or a lesser period.

[13] In that case, Tipping J went on to say, while there must be 'something truly special about the circumstances ... one cannot construe that ... so tightly as to make the section virtually nugatory'. While there must be something special, he added,

'Parliament has deliberately chosen not to further define that, and indeed the concept could hardly be further defined. The examples will be legion'. In the earlier case Daubney v Ministry of Transport,^[4] which I have found equally helpful, Tipping J said this:

One is entitled when considering whether there are special reasons ... to examine all the circumstances of the offence and if there are a number of factors relating to the offence, none of which of themselves might have carried the day, it is permissible to say that all of them in combination can constitute a special reason or special reasons ...

Submissions

[14] On this appeal Mr Gotlieb contends for Ms H that the Judge erred in not recognising that the pressure under which Ms H decided to drive was not peculiar to her. It arose from Samoan cultural norms affecting any Samoan person. In effect, Mr Gotlieb goes so far as to say, she was coerced by those norms and by family pressure.

[15] That apart, Mr Gobtlieb submits, there was nobody else to drive the cousin and on the instant Ms H took the decision she now repents. It is at least explained by her cultural norms. Her blood alcohol level was relatively low (she had consumed only two glasses of wine). She had slept since drinking. She reasonably believed she was no longer affected. There was no driving fault.

[16] In response, Ms Culliney submits, the Judge was right to conclude that the reason why Ms H drove related to her and not to the offence. She may have acted without thinking but she was not coerced. She herself says that had she taken more time she would not have elected to drive. Regrettably, she did not take sufficient account of the alcohol she had consumed.

[17] Ms Culliney also puts in issue whether Ms H had to drive and whether, on the evidence, she was the only candidate. The possibility that others might have been able to help could not be excluded on the evidence. But even if Ms H were the only candidate, this was not a sudden emergency. That she was perhaps not greatly impaired did not excuse her choice.

Conclusions

[18] There can be, I agree with the Judge, a fine line between cases where 'special reasons' relate to the person and where they relate to the offence. But, to the extent that the Judge held there to be a fixed line, and I am not absolutely certain that he did, though he was certainly influenced by the perception, that, I think goes too far and is incorrect.

[19] There are cases, where the discretion has been exercised, where the special reason found lies in the decision to drive and why that decision was taken. McGowan is one such instance. So the reasons why Ms H decided to drive were material to the exercise of the discretion. The question is rather how compelling those reasons were.

[20] I do not accept that Ms H drove under coercion. In her evidence she did not in fact say that. She said rather that she drove without thinking, almost as a matter of reflex, because she was conditioned by Samoan cultural norms and by the needs of her family members. She accepted instinctively the importance of her cousin attending church. She accepted unthinkingly the need to respect her aunt's wishes.

[21] That, she accepted, led her to fail to take account of the fact that she had been drinking a matter of four hours earlier. But that omission is not wholly inexcusable. There is nothing to suggest that she had more wine than she admitted to. Her breath alcohol level was not high. Nor is there anything to suggest that she is an irresponsible woman. Quite the contrary. She is a school teacher without previous convictions.

[22] As against that, the fact is that Ms H did set out to drive from central Auckland to Otara and back again, when her breath alcohol level was in excess of the limit the law imposes; and, though not greatly in excess, and though there was no driving fault, that cannot be ignored. It is fortunate that the excess was relatively small and that there was no driving fault.

[23] The Judge, I conclude, did take too circumscribed a view of the discretion conferred. He did distinguish too markedly between factors going to the person and factors going to the offence. The reason why Ms H drove was material. That her cultural norms came into play on the instant, and instinctively, could in the context of this particular case, I consider, constitute a relevant 'special reason'. Not a sufficient reason to excuse her completely from the full mandatory minimum term, but sufficient to excuse her in part.

[24] On this appeal I set aside the Judge's order imposing the six month minimum mandatory term. I substitute in its place a three month term. That will take effect as

_{from 19 October 2010.}

P.J. Keane J

---

^[1] _{R v Crossen [1939] NI 106.}
^[2] _{Lower Hutt City v McAlpine [1972] NZLR 168.}
^[3] _{McGowan v Police HC Christchurch AP No 139/91, 5 July 1991.}

^[4] Daubney v Ministry of Transport HC Christchurch AP No 183/89, 3 November 1989.