Tindle v Police [2016] NZHC 2093 (5 September 2016)

Last Updated: 6 September 2016

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2016-419-32 [2016] NZHC 2093

BETWEEN	CHRISTOPHER SEAN TINDLE Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	31 August 2016
Counsel:	P Borich for Appellant J E Tarrant for Respondent
Judgment:	5 September 2016

_{JUDGMENT OF DUFFY J}

This judgment was delivered by me on 5 September 2016 at 2.00 pm pursuant to

Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Solicitors / Counsel:

Paul Borich, Barrister, Manukau City

Crown Solicitor, Hamilton

TINDLE v NEW ZEALAND POLICE [2016] NZHC 2093 [5 September 2016]

[1] On 7 January 2014 the appellant, Christopher Tindle, pleaded guilty in the District Court at Thames to one charge of driving with excess breath alcohol. He was sentenced to supervision for 12 months; ordered not to acquire an interest in a motor vehicle for twelve months; and disqualified from holding or obtaining a driver’s licence for a period of five years.

[2] Mr Tindle now seeks leave to appeal out of time the period of disqualification imposed on him. For reasons which will become clear when dealing with the appeal, the respondent did not oppose the granting of leave to appeal out of time. I am satisfied that the circumstances warrant Mr Tindle being granted leave to appeal out of time, and accordingly leave is granted.

[3] Mr Tindle submits that the five year disqualification was manifestly excessive. The circumstances of the offending were not egregious. In his case the offending came to light through him being randomly stopped by the police. The level of alcohol in his blood was moderate, being 124mg/100mL of blood in comparison to the (then) legal limit of 80mg/100mL of blood. Mr Tindle has three previous convictions for this type of offending, those being in 1995, 2003 and 2010. The previous offences all involved higher levels of excess blood alcohol. He has also been convicted in respect of two further traffic offences, though they were not alcohol-related.

[4] The respondent has very properly and responsibly recognised that the period of disqualification is not consistent with comparable cases, and so it has “acknowledged that the 5 year period of disqualification imposed was manifestly excessive in the circumstances.” This is also the reason why the respondent did not oppose leave to appeal being granted out of time.

[5] I am grateful to the respondent for making this concession. Had it not done so, it is a conclusion that I would have reached in any event.

[6] Counsel for both parties helpfully referred me to a number of relevant authorities.¹ I do not propose to discuss all of those in depth here. However, it is

¹ See Wilson v Police HC Rotorua CRI-2005-463-81, 2 December 2005; Barron v Police HC

useful to summarise a few of those cases to give a general impression of sentencing levels in relation to this type of offending.

[7] In Fairbrother v Police,² the appellant had an excess breath alcohol level of

558mg/L.³ He had two previous convictions for excess breath/blood alcohol offending (194mg/100mL of blood and 625mg/L of breath respectively), as well as other driving offences. The High Court upheld a period of two years’ disqualification but found that the fine and disqualification were at the “top end of the range.” In R v Stone,⁴ the appellant had an excess breath alcohol level of

723mg/L of breath and had previously committed seven such offences. The Court of Appeal upheld a disqualification of three years. In Russell v Police,⁵ the appellant was sentenced on a charge of driving with excess breath alcohol where the appellant had 14 previous convictions for driving with excess breath alcohol in 1989, 1990,

1991, 1992, 1995, 1996, 1998 and four each in 2001 and 2007. The appellant was disqualified for three years. On appeal to the High Court, Potter J described the disqualification as stern, but not manifestly excessive. Finally, in R v McQuillan,⁶ the appellant was convicted on two charges of driving while disqualified and driving with excess breath alcohol based on separate incidents 11 months apart (750mg/L of breath and 186mg/100mL of blood respectively). A disqualification period of three years was found to be appropriate by the Court of Appeal.

[8] These cases, and the others to which I was referred, suggest that offending such as Mr Tindle’s generally attracts disqualifications of between two to three years. In contrast, periods of disqualification of around five years are usually reserved for cases where the excess consumption of alcohol has affected driving which has resulted in death and/or serious injury; or a combination of very high levels of excess

_{breath/blood alcohol and extensive previous convictions.}

Rotorua CRI-2010-470-11, 22 April 2010; Tai v R [2010] NZCA 552; Ineson v Police HC Christchurch CRI-2009-409-8, 19 February 2009; Walters v Police HC Napier CRI-2007-441-

10, CRI-2007-441-11, CRI-2007-441-12, 11 June 2007; Williams v Police HC Christchurch

_{CRI-2007-409-67, 29 March 2007.}

² _{Fairbrother v Police HC Masterton MA16/02, 5 December 2002.}

³ _{In comparison to the (then) legal limit of 400mg/L.}

⁴ _{R v Stone [2009] NZCA 539.}

⁵ _{Russell v Police HC Whangarei CRI-2009-488-46, 15 December 2009.}

⁶ R v McQuillan CA129/04, 12 August 2004.

[9] In the present case Mr Tindle was for sentence in the District Court on his fourth offence of driving with excess breath or blood alcohol. The offence had come to light through a random stop with no errant driving. His level of alcohol was significantly lower than his previous history. In all, he had seven driving-related convictions. When his circumstances are compared to those of the relevant authorities referred to by his counsel and by the respondent, the five year disqualification period that he received is clearly out of line.

[10] The sentencing notes of the District Court Judge reveal the Judge’s concern to ensure public safety and his view that Mr Tindle’s continued offending would place the public at risk. The Judge specifically referred to Mr Tindle having significant mental health issues in the form of depression as well as what the Judge described as a convulsion disorder and a conversion disorder. The Judge was aware that at the time of sentencing Mr Tindle was undergoing alcohol and drug counselling in conjunction with the Waikato DHB Mental Health & Addiction Services.

[11] While Mr Tindle may have significant mental health issues, there is nothing in the Judge’s sentencing or the information available to me to suggest that those mental health issues make Mr Tindle more of a risk to public safety than someone without them. There is no doubt alcohol abuse is a problem for him. However, when I look at the comparable authorities both counsel have brought to my attention, it is clear to me that the offenders in those authorities must also have had alcohol problems. It would be unusual for someone who did not have an alcohol problem to acquire a number of drink driving convictions. For most people, without an alcohol problem, one or two such convictions are enough to make them realise the error of their ways. I do not see why the mental health issues Mr Tindle faces should make him such a risk to public safety that he should be precluded from driving on public roads for a longer period of time than other persons who have offended in like circumstances.

[12] The disqualification period clearly needs to be reduced. The respondent has suggested an appropriate period of disqualification would be in the vicinity of two years. If such a period had been imposed when Mr Tindle appeared in the District

Court, it would by now have elapsed. I have carefully considered the periods of disqualification imposed in the other cases. I consider that a two year period of disqualification falls within the appropriate range for the type of circumstances in Mr Tindle’s offending.

Result

[13] The appeal against the period of five years’ disqualification is allowed. In its place I impose a period of disqualification of two years. Such disqualification would take effect from the date when the disqualification was originally imposed, being 21

January 2014.