O'Sullivan v Police [2012] NZHC 3421 (14 December 2012)

Last Updated: 20 December 2012

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2012-488-000064 [2012] NZHC 3421

BETWEEN PAUL CLIFFORD O'SULLIVAN Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 14 December 2012

Counsel: Mr P O'Sullivan, Appellant in person

D B Stevens for Respondent

Judgment: 14 December 2012

_{(ORAL) JUDGMENT OF HEATH J}

Solicitors:

Crown Solicitor, PO Box 146, Whangarei

Copy to:

_{Appellant in person}

O'SULLIVAN V NEW ZEALAND POLICE HC WHA CRI 2012-488-000064 [14 December 2012]

[1] Mr O’Sullivan appeals against a sentence imposed by Judge Davis in the District Court at Kaikohe on 9 October 2012. He was being sentenced on one charge of driving with an excess breath alcohol concentration on a third or subsequent occasion and one of driving whilst forbidden. The breath alcohol level disclosed by the testing was 657mcgs of alcohol per litre of breath as opposed to the legal limit of

400mcgs of alcohol per litre of breath.

[2] Mr O’Sullivan pleaded guilty at an early stage. The basis on which the guilty

plea was entered is set out in the summary of facts.

[3] On 28 August 2008, Mr O’Sullivan was stopped by the Police while driving.

Inquiries revealed he did not hold a current and appropriate licence.

[4] On 27 April 2012, at about 7.35pm, Mr O’Sullivan was stopped driving a Suzuki motor vehicle on State Highway 10, Kaeo. He was stopped at a roadside checkpoint. When processed, the breath alcohol level to which I have referred was found.

[5] Judge Davis noted that on 31 October 2008, Mr O’Sullivan had been convicted of driving with an excess breath alcohol level of 794mcgs of alcohol per litre of breath and on 10 March 2009, was convicted on the same charge with a reading of 777mcgs of alcohol per litre of breath.

[6] Mr O’Sullivan is aged 64 years. The offending has all occurred relatively late in life. I am satisfied, without going into detail, that the offending has arisen out of personal difficulties that have led to certain health problems. Mr O’Sullivan who has presented his case before me today with moderation and courtesy, recognises that his actions were wrong and that some sanction is required.

[7] Judge Davis imposed a period of community detention for six months. Mr

O’Sullivan was to be subject to a curfew for seven days per week from 5pm until

6am. He also made an order that Mr O’Sullivan undertake supervision for a period of

one year. Mr O’Sullivan was disqualified from holding or obtaining a driver licence

indefinitely. Another order was that Mr O’Sullivan was prohibited from having an

interest in a motor vehicle for 12 months.

[8] Mr O’Sullivan has challenged three aspects of the Judge’s sentence. The first concerns the sentence of disqualification from holding or obtaining a driver licence. Mr O’Sullivan asks that it be for a finite term. He refers to the problems of living in a small community and the difficulties in travelling elsewhere without a car.

[9] The Judge, however, was required to impose an indefinite period of disqualification. Section 65(2) of the Land Transport Act 1998 mandates a order disqualifying a person indefinitely in circumstances in which Mr O’Sullivan was convicted. However, the Judge did fail to impose an order that Mr O’Sullivan attend an “assessment centre” as defined in the Act. That is an important component of the sentence because it is only when a report is received from the assessment centre that the Agency has power to remove the disqualification order.

[10] The appeal will need to be allowed to provide for reference to an assessment centre. That term is defined in s 2(1) of the Act as an establishment for the time being approved as an assessment centre by the Chief Executive of the Ministry of Health. Mr Stevens, who has appeared for the Police today, has agreed to assist Mr O’Sullivan in identifying the appropriate assessment centre at which he should attend.

[11] Once an order is made that Mr O’Sullivan attend an assessment centre, the need for supervision falls to one side. There are also difficulties in travelling to Kaikohe for supervision to be undertaken. I do not intend to retain the supervision aspect of the sentence.

[12] The third issue is the term of community detention. While I agree with the Judge that there was a need to impose some punitive sanction, a term of six months community detention was, with respect, excessive, given the circumstances in which the driving occurred. The Judge may have been led into error by a comment made by the prosecuting sergeant that Mr O’Sullivan had consumed a bottle of port before driving, whereas, the true position was that three glasses of port were drunk together

with one stubbie of beer. That explains more readily why Mr O’Sullivan did not consider he was unfit to drive and why the breath alcohol concentration is not at a higher level. In my view, a sufficient sentence is one of one month’s community detention. At this time of year that will act as a sufficient means of denouncing and deterring others from offending in this way.

[13] For those reasons, the appeal is allowed. The orders made by Judge Davis as to supervision and community detention are set aside and substituted with the following:

(a) Mr O’Sullivan shall attend an assessment centre as defined by the Act.

(b) Mr O’Sullivan shall be subject to a sentence of community detention at his home address of 49 Dip Road, Kaeo and be subject to a curfew at that address for seven days per week from 5pm until 6am. That sentence shall last one month and will commence on 18 December

2012.

[14] The order for indefinite disqualification remains as does the order that he be prohibited from having an interest in a motor vehicle for 12 months.

P R Heath J