McManus v Police [2014] NZHC 3108 (5 December 2014)

Last Updated: 12 December 2014

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI 2014-442-018 [2014] NZHC 3108

BETWEEN	DANIELE KATHLEEN McMANUS Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	14 October 2014 via AVL
Appearances:	Appellant appearing in person A Mills for the Respondent
Judgment:	5 December 2014

_{JUDGMENT OF MALLON J}

Introduction

[1] Ms McManus was convicted of driving related offences arising out of an incident earlier this year. She was sentenced to 80 hours community work, fined

$250, ordered to pay court costs of $60 and disqualified from driving for nine months.¹ She appeals against her sentence.

The offending

[2] On 20 April 2014 Ms McManus was driving a car in a Nelson street. Ms McManus had two passengers. The police, in a police car parked on that street, observed her drive past. They pulled in behind her and activated their flashing red and blue lights. Ms McManus did not stop. The police activated their siren and continued to follow her. She increased her speed, exceeding the speed limit of 50 km/h, cut the corner as she turned into another street and drove through a give way and a stop sign without slowing down or checking that it was safe to proceed. The

_{police abandoned the pursuit because of the manner of her driving.}

¹ _{Police v McManus DC Nelson CRI-2014-042-880, 13 August 2014.}

McMANUS v NEW ZEALAND POLICE [2014] NZHC 3108 [5 December 2014]

[3] The car was subsequently located on another street. Ms McManus and her passengers had left the vehicle. She was located some minutes later on a nearby street. She denied that she had been the driver. She exhibited signs of alcohol intake. A breath test found that her breath contained 713 mcgs of alcohol per litre of breath.

[4] These matters gave rise to the following charges:

(a) driving with a breath alcohol level over 400 mcgs per litre of breath;²

(b) careless driving;³

(c) failing to stop when followed by red and blue flashing lights;⁴ (d) carrying unauthorised passengers on a restricted licence;⁵ and (e) failing to stop at a stop sign.⁶

The offender

[5] Ms McManus was 18 years old at the time of the offending. She was a student at that time. She has since found employment, working five days a week from 8 am until 5 pm. She has no previous convictions.

[6] Ms McManus initially entered not guilty pleas to at least some of the charges.⁷ Guilty pleas were subsequently entered on 13 August 2014.

The sentence in the District Court

_{[7] The District Court Judge imposed the following sentences:}

2. Land Transport Act 1998, s 56(1) (maximum penalty of three months imprisonment or a $4,500 fine).

³ _{Section 37(1) (maximum penalty of a $3,000 fine).}

⁴ _{Section 52(1)(c) (maximum penalty of a $10,000 fine).}

⁵ _{Land Transport (Driver Licensing) Rule 1999 (maximum penalty of a $100 fine).}

6. Land Transport Act 1988, s 40; Land Transport (Offences and Penalties) Regulations 1999, r 4; Road User Rules 2004, r 4.1(1)(A) (maximum penalty of a $150 fine).

⁷ The appeal file does not include all the charging documents.

(a) excess breath alcohol: 80 hours community work and six months

disqualification from holding or obtaining a driver’s licence;

(b) careless driving: six months disqualification (concurrent); (c) failing to stop: three months disqualification (cumulative);

(d) carrying unauthorised passengers: fine of $100, court costs of $30;

and

(e) failing to stop at a stop sign: fine of $150 and court costs of $30.

Assessment of appeal grounds

[8] Ms McManus contends that the police exaggerated the offending. She says that the police have made it sound as though it was a lengthy pursuit when the total distanced travelled was 0.8 kms. I do not accept this submission. The summary of facts was the subject of discussion which resulted in amendments. Guilty pleas were entered on the basis of the amended summary of facts. That summary correctly and in neutral terms records the streets through which Ms McManus drove (from Collingwood, to Nile, to Alton, to Hardy, to Tasman Street). There is nothing in the District Court Judge’s sentencing remarks to suggest that he thought the pursuit was a lengthy one.

[9] Ms McManus contends that, in being charged with careless driving and failing to stop at a stop sign, there was double jeopardy. I do not accept that submission. As set out in the summary of facts, the careless driving related to exceeding the speed limit, cutting a corner and driving through a give way sign without stopping or checking. Failing to stop at a stop sign was a separate offence. The police were entitled to charge Ms McManus with that offence.

[10] Ms McManus contends that the disqualification order was too harsh given that this was her first offence. However the six month disqualification imposed in

respect of the breath alcohol charge was the mandatory minimum period.⁸ Similarly, the three month cumulative disqualification imposed in respect of failing to stop when followed by red and blue flashing lights, was the mandatory order for that offence because Ms McManus also exceeded the speed limit.⁹ The six month disqualification imposed in respect of the careless driving offence was imposed concurrently. It therefore did not add to the overall length of the disqualification. The overall disqualification order was accordingly not too harsh. It was the minimum period the Judge was required to impose.

[11] Ms McManus contends that there was inadequate disclosure. She says that her lawyer requested disclosure relating to police communications during the pursuit. Ms McManus has now received that information. It confirms that the period between when the vehicle was found and when Ms McManus was located is about

24 minutes, rather than the five to 10 minute period referred to in the summary of facts. Although Ms McManus had lodged only an appeal against sentence, at the hearing she confirmed that she wished to appeal her conviction on the breath alcohol charge on the basis of this information.

[12] Ms McManus was represented by counsel when she entered her guilty plea on the breath alcohol charge. The 14 or so additional minutes, between when the vehicle was found and when Ms McManus was located, is new information. However the new information does not give rise to a miscarriage of justice such that Ms McManus should be permitted to vacate her guilty plea:

(a) It is not material to whether the enforcement officer was entitled to breath test Ms McManus. An enforcement officer may require a person to undergo a breath screening test without delay if the officer has good cause to suspect that the person “has recently committed an offence against this Act that involves the driving of a motor

_vehicle.”¹⁰ _{Twenty four minutes would still qualify as recent.}

⁸ _{Land Transport Act, s 56(1) and (3).}

⁹ _{Sections 114(2), 52(3) and (5).}

¹⁰ Section 68(1)(b).

(b) It is also not material to whether the charge was proven. As the District Court Judge pointed out to her at the time of sentencing, it did not matter that she claimed to have been drinking after she left the car. She was deemed to have the alcohol level as found in her breath when she was driving.¹¹

[13] The last point raised by Ms McManus is that she considers the sentence of community work was overly harsh for a first offender. At the time of the appeal she had completed seven hours of that sentence. She was required to clean toilets. She was also required to clean a dirty food canteen without gloves. As she is employed, she says it is difficult to fit in the community work. She is prepared to pay a fine.

[14] Counsel for the respondent was neutral on whether a fine rather than community work should have been imposed. She accepted that a fine was an available option for a first offender on a breath alcohol charge. She noted that there was additional offending and the question was whether the overall sentence was manifestly excessive.

[15] A review of some cases does suggest that a fine is ordinarily imposed for a first offender on a breath alcohol charge.¹² Community work can be imposed, however, where the driving was particularly bad.¹³ While it was poor behaviour by Ms McManus to fail to stop for the police, and to proceed to drive carelessly and to drive through a stop sign, there are certainly worse cases. A fine was the least

restrictive available sentence and should have been imposed. I therefore quash the community work sentence. As McManus has already carried out a few hours of community work, I impose a lower fine than otherwise would have been appropriate.

_{I set the fine at $300.}

¹¹ _{Section 77(1).}

¹² Murray v Police [2014] NZHC 1334; Dayson v Police HC Auckland CRI-2008-404-88, 10 June

2008; Wilby v Police [2013] NZHC 2963; Wilkins v Police HC Christchurch CRI-2008-409-008,

_{21 February 2008.}

¹³ See Schruba v Police HC Dunedin CRI-2008-412-030, 25 September 2008, where French J described the driving as “absolutely disgraceful” and “grossly irresponsible” (at [11] and [16] respectively).

Result

[16] The appeal is allowed to the extent that the sentence of community work on the driving with excess breath alcohol is quashed. In its place I impose a fine of

$300. The other sentences and orders for the other offences remain in place.

Mallon J