Walford v Police [2016] NZHC 2785 (21 November 2016)

Last Updated: 25 November 2016

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI-2016-416-24 [2016] NZHC 2785

BETWEEN	RAYMOND GEORGE WALFORD Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	11 October 2016 via AVL
Appearances:	Mr Walford appearing in person M M Mitchell for the Respondent
Judgment:	21 November 2016

_{JUDGMENT OF MALLON J}

Introduction

[1] Mr Walford pleaded guilty to and was convicted of driving with excess breath alcohol (third or subsequent).¹ He was sentenced in the Gisborne District Court to six months home detention with special and standard conditions for six months after the sentence end date. He was also disqualified from driving for two years.² He appeals against his sentence.

[2] His principal ground of appeal concerns the disqualification order. He contends the Judge was wrong as to whether special reasons for not imposing the disqualification existed. Alternatively he seeks a reduction in the period of his disqualification. He also contends his solicitor did not act promptly on his instructions which affected the available discount for his guilty plea. Lastly he seeks

_{a variation to the conditions of his home detention sentence.}

¹ Land Transport Act 1998, ss 56(1) and (4) (maximum penalty two years imprisonment or a fine of $6,000 and mandatory disqualification from holding or obtaining a driver’s licence for more than one year).

² _{Police v Walford [2016] NZDC 11588.}

WALFORD v NEW ZEALAND POLICE [2016] NZHC 2785 [21 November 2016]

Disqualification

Special reasons

[3] A one year minimum period of disqualification that applies to a third or subsequent conviction for driving with excess breath alcohol.³ The Court is required to impose a period of disqualification not less than the one year minimum “unless for special reasons relating to the offence it thinks fit to order otherwise.”⁴

[4] Mr Walford sought to advance special reasons. For this purpose affidavits were filed concerning the circumstances which had led to Mr Walford driving on this occasion. Those circumstances were as follows.

[5] Mr Walford and others had been drinking with a friend (Mike) at Mike’s house in Gisborne. Mike fell asleep and some of the other people at the house left. Mr Walford and Mr Pomana remained at the house and continued to drink. Mr Pomana suffers from emphysema. As time went on he began to feel unwell and became breathless. He had run out of his medication and needed an atomiser.

[6] Mr Walford decided Mr Pomana needed to go to the hospital. They considered calling an ambulance. However Mr Walford’s cell phone battery was flat and Mr Pomana did not have a cell phone. Mr Walford decided to take Mr Pomana to get help. He did not think twice about driving because his only thought was getting help for Mr Pomana. When they got in the car Mr Walford remembered he had a friend (Les) who also had emphysema and lived around the corner from Mike’s house. He thought they could go there first and get an atomiser from him.

[7] A short distance after leaving Mike’s house, Mr Walford was stopped at a police check point. He was breath tested and the result showed 998 micrograms of alcohol per litre of breath. Mr Walford told the police he was taking Mr Pomana to the hospital. A police officer offered Mr Pomana a ride to the hospital. Mr Pomana got out of the car and that was the last Mr Walford saw him. Mr Walford later

_{discovered that Mr Pomana had declined the ride because he did not like the idea of}

³ _{Land Transport Act, s 56(4).}

⁴ Land Transport Act, s 81(1).

being in a police car. Mr Pomana instead decided to walk home. The walk took him nearly three hours because he needed to make several stops along the way. At one point during the walk Mr Pomana thought he was going to die. He continued plodding along until he reached his home.

[8] In considering whether these facts amounted to special reasons, the Judge noted this conclusion should not to be reached lightly. He noted the onus was on Mr Walford to establish he had a reasonable belief there was an emergency that required an immediate response and that other practicable options were explored before making the decision to drive.⁵

[9] The Judge had “very real doubt” about the severity of Mr Pomana’s condition. This was because Mr Pomana had declined police assistance and had walked for three hours to get home. The Judge said these were not the actions of a seriously ill man. The Judge went on to say the issue was not whether there was actually an emergency but whether Mr Walford reasonably believed there to be one. He was prepared to proceed on the basis that he did have that belief.

[10] However the Judge considered there were clearly options available to Mr Walford other than to drive. He could have woken Mike to see if he had a phone to call an ambulance or sought help from a neighbour. The Judge noted this occurred in the early evening, and so it would not have caused a significant disturbance to a neighbour, and a neighbour could be expected to assist in this way. The Judge therefore concluded that Mr Walford had not established special reasons.

[11] Mr Walford challenges this decision on the basis that the Judge’s view of Mr Pomana’s medical condition was wrong. He submits the police recognised the seriousness of that condition because they offered Mr Pomana a ride to the hospital. He says Mr Pomana lived less than a mile away from the check point and, the fact he took three hours to walk home, shows the seriousness of his condition. He says he was disappointed to learn that Mr Pomana had not accepted the offer of a ride from the police, when Mr Walford thought he was in such a dire condition that he needed

_{to drive him to the hospital.}

⁵ Police v Walford [2015] NZDC 11787.

[12] Those matters do not, however, assist Mr Walford. That is because the Judge was prepared to proceed on the basis that Mr Walford reasonably believed there to be an emergency when he decided to drive. Mr Walford failed on the point that he had not shown that other practicable options were explored before deciding to drive. It was for this reason the Judge considered special reasons had not been shown. A disqualification order therefore needed to be imposed.

[13] The Judge’s decision followed a line of High Court decisions. These decisions have held, in the context of drink driving offences, that it is unlikely that special reasons justifying no disqualification order will arise where there were reasonable alternatives to driving.⁶ As the Judge concluded, there were other options available to Mr Walford. He could have woken Mike or approached a neighbour for assistance. Mr Walford has not established any error in the Judge’s conclusion about

this.

The period of disqualification

[14] Mr Walford seeks a reduction in the period of his disqualification. He refers to the circumstances which led him to drive. He accepts he should not have driven and he apologises for doing so. He says he has turned his life around, by attending a rehabilitation facility, and he is determined to remain sober for the rest of his life.

[15] The pre-sentence report refers to these matters. The writer of that report assessed Mr Walford as having a low risk of re-offending based on his engagement with alcohol and drug counselling, his remorse and acceptance of responsibility for his offending. Additionally, although Mr Walford had seven previous convictions for drink driving, these dated back to the period between 1980 and 2007.

[16] However these matters were considered by the Judge. They led the Judge to reduce his starting point from 15 to 12 months imprisonment and to decide that home detention, rather than imprisonment, was appropriate despite the “very high

_{level” of alcohol when Mr Walford was apprehended. As the Judge considered the}

⁶ Anderson v Police [2016] NZHC 942, at [15]-[16]; Gommans v Police HC Palmerston North

CRI-2006-454-02, 8 February 2006; Maniapoto v Police HC Rotorua CRI-2008-463-1, 18 April

2008; and Hall v Police HC Hamilton CRI-2009-419-76, 9 December 2009.

relevant factors, the question is whether the period of disqualification was manifestly excessive.

[17] In my view it was not manifestly excessive.⁷ The minimum period of disqualification was one year. That might have been an appropriate period of disqualification if Mr Walford’s breath alcohol level had been more moderate. The significant gap between Mr Walford’s last drink driving conviction and the present offence is to his credit. It is also to his credit that he is determined to remain sober and has taken steps to assist him to do so. However Mr Walford’s history shows that alcohol has been a problem for him for a long time. Although Mr Walford thought there was an emergency, the situation should not have led to him driving when he had consumed such a significant amount of alcohol.

[18] Mr Walford would like to be able to drive so he can travel to exhibit his art and provide transport for his elderly parents. These are not matters I can take into account on this appeal. These are matters which might be relevant to an application, to the relevant authority, for a limited licence. I am not able to indicate whether such a licence would be granted.

Counsel’s failure to act promptly

[19] Mr Walford considers his lawyer failed to advise the Court promptly of his decision to change his plea to guilty. He says he decided to change his plea when he learned that Mr Pomana had not accepted the police officer’s offer to take him to the hospital. He immediately told his lawyer to change his plea when he learned of this. He cannot understand why it took her so long to inform the Court of this change and to explain why the change of plea had come about.

[20] However any emergency relating to Mr Pomana could not have provided a defence to the charge Mr Walford faced. The charge was proven because Mr Walford was apprehended driving with excess breath alcohol, regardless of the

_{circumstances which had led to him driving. These circumstances were only}

⁷ I note the helpful review of some of the cases in this area in Tindle v Police [2016] NZHC 2093.

In light of those cases, the Judge in that case reduced the period of disqualification from five to two years where the defendant’s drink driving history was more recent than Mr Walford’s but his alcohol level was much lower.

relevant to the appropriate penalty. Mr Walford could have entered a guilty plea from the outset.

[21] Mr Walford’s lawyer filed a memorandum with the Court on 13 April 2016. In this memorandum she advised that the judge alone trial scheduled for 18 April

2016 would not need to proceed. That was because she had received instructions from Mr Walford on 23 March 2016 to change his plea. She advised that on 18 April

2016 a guilty plea would be entered and a sentencing date sought. Mr Walford was sentenced on 21 June 2016.

[22] In light of that memorandum there is no substance to the complaint that Mr Walford’s lawyer did not promptly advise the Court of his change in plea. The reason why the Judge only gave minimal credit for his guilty plea was because the change in plea was not made at the first opportunity (that is, at or soon after Mr Walford’s first appearance in Court). In any event, the sentence imposed on Mr Walford is not manifestly excessive taking into account his guilty plea, his acceptance of responsibility and his remorse.

Home detention conditions

[23] Mr Walford has a bad back. He has previously been an avid attender of the gym in order to strengthen his back. While serving his sentence of home detention he has been unable to attend the gym. He says his health and mobility has suffered considerably as a result. He owns a bike and would be able to ride his bike to the gym if he were permitted to do so.

[24] As explained to Mr Walford at the hearing, this is something to be raised with his probation officer. The conditions of home detention include a condition that he remain at the home detention address “at all times unless an absence has been authorised by [the] Probation Officer”. His probation officer will be able to assess whether a regular visit to the gym would be beneficial to Mr Walford and can be appropriately accommodated.

Result

_{[25] The appeal is accordingly dismissed.}

Mallon J