Faloon v Palmerston North Airport Limited [2013] NZHC 3225 (11 December 2013)

Last Updated: 26 February 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2013-404-000315 [2013] NZHC 3225

BETWEEN ROY HOWARD WOOLSTON Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 3 December 2013

Appearances: J Mooney for Appellant

R N Thompson for Respondent

Judgment: 3 December 2013

(ORAL) JUDGMENT OF ANDREWS J [Appeal against sentence]

Solicitors:

Public Defender, Auckland (Appellant) Meredith Connell, Auckland (Respondent)

WOOLSTON v NEW ZEALAND POLICE [2013] NZHC 3225 [3 December 2013]

Introduction

[1] On 27 September 2013 the appellant pleaded guilty to, and was convicted and sentenced by Judge Bouchier in the Auckland District Court on, a charge of refusing the permit a blood specimen to be taken, that being his third or subsequent conviction for that offence, under s 60 of the Land Transport Act 1998 (“the Act”). The appellant was sentenced to 150 hours community work, supervision for six months (with a special condition to undertake alcohol treatment or counselling as directed by the probation officer), and disqualified from holding or obtaining a

driver’s licence for one year and one day.¹

[2] The appellant has appealed against the period of disqualification. It is submitted that the Judge erred in concluding that the length of time since his earlier traffic offending could not constitute a “special reason” justifying a departure from the mandatory period of disqualification period, pursuant to s 81 of the Land Transport Act.

Facts

[3] The appellant has previous convictions for refusing to undergo a blood alcohol test in 1988 and again in 1991. Under s 60(3)(b) of the Act, the appellant was required to be disqualified from driving for more than one year unless, pursuant to s 81(1) of the Act, “for special reasons relating to the offence” the Court thought it fit to order otherwise.

[4] On 28 September 2013, the appellant drove his vehicle onto a road verge. The vehicle stopped, partially blocking his lane. The police attended, and it appeared to them that the appellant had been consuming alcohol. The appellant was unable to provide a sufficient sample of breath for analysis, and was then asked to undergo a blood alcohol test. He refused to allow a sample of venous blood to be taken.

District Court judgment

[5] It was submitted in the District Court that the Judge should consider whether the length of time since the appellant’s two previous offences of refusing to give a blood sample constituted grounds for the Court not to order the mandatory minimum period of disqualification. The Judge rejected this submission.

Appeal issues

[6] I note, first, that this is an appeal against sentence under s 244 of the Criminal Procedure Act 2011. Under s 250, the Court must allow the appeal if it is satisfied that for any reason, there is an error in the sentence imposed on conviction; and that a different sentence should be imposed.

[7] I am therefore required to consider, first, whether as a matter of law, the “historical nature” of the appellant’s earlier convictions could amount to “special reasons relating to the offence” under s 81 of the Act, and secondly (if the answer to that question is yes), whether this court should reduce the period of disqualification.

Discussion

[8] The appeal relates to whether historic convictions are “special reasons” for the purpose of s 81 of the Act. The approach for determining whether to exercise the Court’s discretion under s 81 to not impose the minimum disqualification period was set out in Martin v Auckland City Council.² In determining whether special reasons for not ordering disqualification exist, three steps need to be determined:

(a) Whether in law, particular circumstances are capable of constituting special reasons;

(b) If so, whether on the facts they are able to be so regarded; and

(c) Whether the court should exercise its discretion to dispense with the minimum disqualification in whole or in part.

[9] In this appeal, the parties disagree in relation to the first question: whether, in law, the historical convictions are capable of constituting special reasons. Both parties point to conflicting High Court authority on whether the historic nature of the offending can constitute “special reason” under s 81 of the Act to support their position. Three judgments were referred to:

(a) In Maniapoto v Police, Winkelmann J held that historic offending “is in itself capable of amounting to ‘special reasons’.”³ This was on the basis of a purposive interpretation of the provision in question, s 56(6) is aimed to deter recidivist repeated drink driving, but drivers who have not offended for a significant period cannot be considered recidivist drunk drivers.⁴

(b) A year later, in Maranui v Police, the question came up again.⁵

Dobson J considered that “the mere length of time since the last relevant conviction cannot constitute ‘special reasons relating to the offence’.”⁶ Instead, his Honour held the lapse in time is a mitigating factor relating to the offender.⁷ In making this decision I note his Honour was not referred to Winkelmann J’s judgment.

(c) In Merry v Police,⁸ Ronald Young J considered both decisions and favoured the approach of Dobson J

[10] Because of this conflicting High Court authority it is necessary for me to determine whether, as a matter of law, the historical nature of offending is part of the

_{offending and therefore capable of being considered a “special reason”.}

³ _{Maniapoto v Police HC Rotorua CRI-2008-463-1, 18 April 2008 at [20].}

⁴ _Ibid.

⁵ _{Maranui v Police HC Wanganui CRI-2009-483-9, 1 April 2009.}

⁶ _{At [15].}

⁷ _{At [12].}

⁸ Merry v Police HC Nelson CRI-2009-442-7, 19 May 2009.

[11] In R v Crossen, “special reason” was defined as:⁹

... 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.

[12] In Reddy v Brown, Cooke J held that such a circumstance “cannot be a special reason ... unless it is special to the facts which constitute the offence...”.¹⁰ So the reason must be related to the offence itself. The central point of this appeal is whether the previous convictions are part of the offence or whether they relate simply to the penalty. If they relate to the offence itself, then it will be necessary for me to determine whether their historical nature is of a particular or exceptional character so as to amount to a “special reason relating to the offence”.

[13] Section 60 provides:

60. Failure or refusal to permit blood specimen to be taken or to undergo compulsory impairment test

(1) A person commits an offence if the person—

(a) fails or refuses to permit a blood specimen to be taken after having been required to do so under section 72 by an

enforcement officer; or

(b) fails or refuses to permit a blood specimen to be taken without delay after having been requested to do so under

section 72 by a medical practitioner or medical officer; or

(c) is a person from whom a medical practitioner or medical officer may take a blood specimen under section 73 and refuses or fails to permit such a person to take a blood specimen; or

(d) fails or refuses to undergo a compulsory impairment test under section 71A.

(2) If a person is convicted of a first or second offence against subsection (1),—

(a) the maximum penalty is imprisonment for a term not exceeding 3 months or a fine not exceeding $4,500; and

(b) the court must order the person to be disqualified from holding or obtaining a driver licence for 6 months or more.

(3) If a person is convicted of a third or subsequent offence against subsection (1) or any of sections 56(1), 56(2), 57A(1), 58(1), and

61(1) and (2) (whether or not that offence is of the same kind as the

_{person's first or second offence against any of those provisions),—}

⁹ _{R v Crossen [1939] NI 106 at 112.}

¹⁰ Reddy v Brown [1951] NZHC 78; [1951] NZLR 1040 at 1042 (HC).

(a) the maximum penalty is imprisonment for a term not exceeding 2 years or a fine not exceeding $6,000; and

(b) the court must order the person to be disqualified from holding or obtaining a driver licence for more than 1 year.

(3A) Subsection (3)(b) does not apply if an order is made under section

65.

(4) For the purposes of this section, a conviction for an offence against a provision of the Transport Act 1962 corresponding to an offence specified in subsection (3) is to be treated as a conviction for an offence specified in that subsection.

(5) The imposition of a mandatory disqualification under this section is subject to section 81.

[14] For the appellant, Mr Mooney submitted that the offence in this case is “refusing to permit a blood specimen to be taken for the third or subsequent time.” If I accept this argument then I should accept, it is submitted, that the 23-year period since the last conviction is a “special reason” under s 81. He further submitted that if there is any doubt as to the issue then I should adopt the interpretation that is favourable to the appellant.

[15] For the respondent, Ms Thompson submitted that the approach of Ronald Young J is correct and should be applied to the present case. That is, that the offence in this case is that of “refusing to give a blood specimen when required to do so by an enforcement officer”. Accordingly, she submits, the past criminal history of the appellant does not relate to the offence and therefore the historical nature of the convictions cannot be considered a “special reason”.

[16] I have concluded that the wording of s 60 of the Act provides the answer to the question. Section 60(1) specifies when a person commits an offence. Thus, in this case, the offence is committed when a person fails or refuses to permit a blood specimen to be taken after having been required to do so. In my view, s 60(3) simply sets out the penalty to be applied when a person is convicted of that offence on a third or subsequent occasion. Section 60(1) creates an offence in and of itself, just as subs (2) (which applies if a person is convicted on a first or second offence) creates an offence. In my view, the fact that subs (3) does not create an offence itself is made clear by the fact that subs (3) refers to a conviction of an “offence against subs (1)”. Accordingly, previous convictions are not part of the offence the appellant

was convicted of and as such cannot, as a matter of law, constitute “special reasons relating to the offence” for the purposes of s 81. Instead, the length of time is a mitigating factor to be taken into account on sentencing.

[17] Support for this analysis can, in my view, be found in the Court of Appeal’s decision in R v Cameron, in relation to s 56 of the Act (driving with excess blood/breath alcohol), which has a similar scheme to s 60.¹¹ The Court of Appeal held that the previous convictions were not ingredients of the offence against s 56(1).¹² The Court held that s 56(4) was not intended to create a separate offence, but rather concerned the level of penalty for a s 56(1) offence when the person has been convicted for three or more drink driving offences.

[18] Accordingly, I conclude that the length of time since the appellant’s previous convictions cannot amount to “special reasons” for not imposing the mandatory disqualification. I am not, therefore, required to consider whether a different sentence should have been imposed.

Result

_{[19] Accordingly, the appeal is dismissed.}

_{Andrews J}

¹¹ _{R v Cameron CA329/02, 29 November 2002.}

¹² At [3]–[5].