Anderson v Police [2016] NZHC 942 (11 May 2016)

Last Updated: 19 May 2016

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-000031 [2016] NZHC 942

BETWEEN	MICHELE ANDERSON Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	10 May 2016
Appearances:	D Dickinson for Appellant S K Shaw for Respondent
Judgment:	11 May 2016

_{JUDGMENT OF WYLIE J}

This judgment was delivered by Justice Wylie on 11 May 2016 at 12.00 midday

Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

_{Date:..............................}

Solicitors/counsel:

Crown Solicitor, Auckland

D Dickinson, Auckland

ANDERSON v NEW ZEALAND POLICE [2016] NZHC 942 [11 May 2016]

Introduction

[1] Ms Anderson appeals against the sentence imposed by Judge Taumaunu in the District Court at Auckland on one charge of driving with excess breath alcohol, contrary to s 56(1) of the Land Transport Act 1998.¹

[2] Judge Taumaunu disqualified Ms Anderson from obtaining or holding a driver’s licence for a period of six months. He also fined her $200 and imposed Court costs of $130.

[3] These latter aspects of the sentence are not challenged. Rather, Ms Anderson asserts that Judge Taumaunu erred in declining to find special reasons under s 81 of the Land Transport Act to relieve her from the otherwise mandatory minimum disqualification period of six months.

[4] Ms Anderson through her counsel, Mr Dickinson, submits that Judge Taumaunu failed to consider whether the circumstances she faced were capable of being considered special reasons, and further that the Judge considered an irrelevant matter when he took into account the lack of threat, or of immediate violence to Ms Anderson, and that in so doing, he unreasonably curtailed the exercise of the discretion vested in him.

Factual Background

[5] At 10.50pm on Saturday 11 July 2015, Ms Anderson was the driver of a Toyota motor vehicle. She was stopped by the police at a checkpoint near the Newton Road motorway on-ramp in central Auckland. When she was stopped she exhibited signs of having recently consumed alcohol. She underwent an evidential breath test, which returned a reading of 558 micrograms of alcohol per litre of breath.

[6] When Ms Anderson was spoken to by the police, she admitted drinking alcohol prior to driving.

¹ New Zealand Police v Anderson [2016] NZDC 2011.

[7] Evidence was given by way of affidavit before the District Court to support Ms Anderson’s application under s 81 of the Act. In brief, on the evening in question, Ms Anderson was attending a friend’s 65th birthday celebration. She intended to stay overnight. She consumed alcohol at the party. During the course of the evening, the son of the friend who was celebrating her 65th birthday became agitated. The son was a methamphetamine addict who was withdrawing from the drug. He started to “flip out”. Ms Anderson had recently received an adverse health diagnosis, she was under financial stress and she had lost her rental accommodation. A friend of hers had died some two years earlier and Ms Anderson believes that her friend’s illness was exacerbated by stress caused by the fact that her three children were drug users. The behaviour of the son at the party brought back painful memories for her. She felt significant discomfort and felt that she needed to be at her own home. She looked to see if she could take a bus home, but it was too late at night for public transport. She decided to drive home, and that was when she was stopped by the police checkpoint, as noted above.

[8] Ms Anderson pleaded guilty to the charge of driving with excess breath alcohol. She had no prior convictions.

District Court Decision

[9] In sentencing, Judge Taumaunu referred to the affidavit which had been filed by Ms Anderson. He noted her significant health issues. He noted that she had gone to the party intending to stay the night, and that she had no initial intention of driving. He noted Ms Anderson’s evidence that her friend’s son had become agitated and aggressive and that that behaviour had triggered painful memories for Ms Anderson. The Judge also referred to the financial stress which Ms Anderson was suffering from, and to the fact that she had lost her rental accommodation. He noted that those issues culminated in Ms Anderson making the decision to leave the party by motor vehicle.

[10] The Judge then went on to analyse the position as follows:

[10] The difficulty with the s 81 application, in my view, is that every possible alternative to drink-driving should have been explored by you before making the decision to drive. ...

[11] There has been a submission made, and you have actually referred to this point, that no buses were available at that time of the night. But whether that is the case or not, my clear impression is that you failed to take adequate steps to explore all of the alternative solutions to the situation. There would have been other alternatives available to you other than simply driving away from the address.

[12] I do not perceive this is a situation where, in fact, you were under direct threat of violence from this particular gentleman. Whether you were or not is not clear from the evidence that I have seen, and if you were, then perhaps the decision might be different but it seems to me that you were simply experiencing a very unpleasant situation and you wanted to get away from it, but I do not perceive that there was a particular threat to your safety at that point. There may have been later, but not at the point that you decided to leave, and even then if there was, you still had to consider all of the alternative options available to you because driving after having consumed alcohol and being over the breath alcohol limit is really the last resort and would need more than what is presented today, in terms of the application, to justify the Court reaching the conclusion that special reasons exist that relate to the offending.

Approach to Appeal

[11] Section 250(2) of the Criminal Procedure Act 2011 provides that the Court must allow an appeal if it is satisfied that:

(a) for any reason there is an error in the sentence imposed on conviction;

and

(b) a different sentence should be imposed. In any other case, the Court must dismiss the appeal.²

[12] The approach taken by an appellate court when it is considering an appeal

involving s 81 was recently summarised by Collins J in Morgan v Police.³ He noted as follows:

[13] A decision not to waive an otherwise mandatory period of disqualification from driving can involve both:

(1) an assessment of fact and application of law in determining

_{whether “special reasons” exist; and}

² _{Criminal Procedure Act 2011, s 250(3).}

3. Morgan v Police [2013] NZHC 3431; And see Lower Hutt City v McAlpine [1972] NZLR 168 (SC).

(2) the exercise of judicial discretion in making an order other than the mandatory disqualification.

[14] Thus, an appeal from a decision that makes an assessment of whether the circumstances of the offending constitute “special reasons” is subject to the standards of appeal articulated by the Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar. In this type of appeal:

(1) The appellate court must reach its own view on the merits of the appeal, bearing in mind.

(2) The appellant bears the onus of satisfying the appellate court that it should differ from the decision appealed from.

7

[15] However, where the appeal focuses upon the way in which judicial discretion has been exercised, the test to be applied is that set out in May v May. In this type of appeal the appellant must show that the decision-maker:

(1) made an error of principle; or

(2) failed to consider all relevant matters or took into account irrelevant matters; or

(3) reached a decision that was plainly wrong.

(citations omitted)

Section 81

[13] Relevantly s 81 of the Land Transport Act provides as follows:

81 Provisions relating to mandatory disqualification

(1) If any provision of this Act (other than section 63) requires a court to disqualify a person from holding or obtaining a driver licence or transport service licence for a period not less than the specified minimum period, the court must order that the person be disqualified accordingly unless for special reasons relating to the offence it thinks fit to order otherwise.

[14] A special reason has been defined as:⁴

A mitigating or extenuating circumstance, not amounting in law to a 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.

⁴ R v Crossen [1939] NI 106 at 112.

[15] Special reasons “embrace only factors of particular or exceptional character”.⁵ The reasons must arise from the circumstances in which the offence was committed or the manner of its commission as a whole.⁶ Personal circumstances are not relevant, except to the extent that they influence the events leading up to the commission of the offence,⁷ or a part and parcel of the offending itself. The special reason must be of a sufficiently compelling nature to justify a departure from the usual consequences.⁸ The special reason must not conflict with the essential purpose of the statutory provision.⁹

[16] A Court will not lightly find that there are special reasons in the alcohol impairment context.¹⁰ Whether reasonable or possible available alternatives to drink driving have or could have been explored, will often be a factor of considerable significance. When a sudden onset of illness or some other emergency may require an intoxicated person to drive, the decision to do so must nevertheless be objectively reasonable. Where all reasonable or possible alternatives are not explored, it is unlikely that special reasons will be found.¹¹

Analysis

[17] Mr Dickinson argued that Judge Taumaunu failed to turn his mind to whether the circumstances detailed in the affidavits filed were capable of being special reasons. He argued that the Judge proceeded straight to the exercise of the discretion. He emphasised that Ms Anderson was under considerable personal stress and pressure given her health and financial circumstances, and that she initially had every intention of staying at the party. He argued that it was only when a friend’s son began to “flip out” that Ms Anderson fell into a state of panic and decided that she had no choice but to remove herself from the situation and drive home. He noted that she needed to travel from central Auckland to her residence in Ranui, that she

_{checked for a bus and found that there was none available. He put it to me from the}

⁵ _{Lower Hutt City Council v McAlpine, above n 3, at 171.}

⁶ _{At 175,}

⁷ _{Mail v Police [2012] NZHC 3049.}

⁸ _{Drummond v Police [2014] NZHC 1851 at [14].}

⁹ _{East v Ministry of Transport HC Christchurch M21/85, 4 March 1985.}

¹⁰ Maniapoto v Police HC Rotorua CRI-2008-463-1, 18 April 2008; Lower Hutt City Council v

_{McAlpine, above n 3. Daniels v Police [2015] NZHC 358 at [28].}

11. Gommans v Police HC Palmerston North CRI-2006-454-02, 8 February 2006; Maniapoto, above n 10, at [22]; Hall v Police HC Hamilton CRI-2009-419-76, 9 December 2009 at [25].

circumstances were capable of being special reasons sufficient to justify Ms

Anderson’s decision to drive.

[18] Ms Shaw for the Crown submitted that the Judge carefully considered whether the circumstances constituted special reasons. She noted that Judge Taumaunu was not satisfied that there was a threat to Ms Anderson’s safety. She pointed out that the Judge accepted that the events may well have been upsetting for Ms Anderson, and that they may have caused her distress, but that he had concluded that they did not meet the high threshold to constitute special reasons. She also pointed to Judge Taumaunu’s conclusion that alternative options were not fully explored.

[19] I agree with Ms Shaw’s submissions. In my judgment, Mr Dickinson’s submissions blur the boundary between determining whether special reasons exist, and the exercise of the discretion.

[20] Judge Taumaunu itemised the various matters relied on by Ms Anderson which were said to amount to special reasons. He concluded that she was distressed, albeit that she was not under any direct threat of violence. He considered that every possible alternative to drink driving should have been explored by Ms Anderson, and he found that Ms Anderson had failed to take adequate steps to explore all alternative solutions to the situation she found herself in. The Judge considered that there would have been other alternatives available to her.

[21] Whether reasonable or possible alternatives to drink driving have been fully explored goes to the issue of whether or not there are special reasons pursuant to s

81. Judge Taumaunu’s findings in that regard were clearly open to him on the affidavits filed. The Judge did not conflate the factual findings required with the exercise of the discretion which will follow if special reasons are found to exist.

[22] In my view, Judge Taumaunu carefully undertook a full analysis of the circumstances, and concluded, correctly, that there were no special reasons.

there was no immediate threat to Ms Anderson. He argued that in reaching that conclusion, the Judge added a gloss to the discretion under s 81,that would normally be associated with issues of self defence or compulsion. He said that the Judge thereby unreasonably curtailed his discretion to the point where it was “not far from meaningless”.

[24] Again, I consider that Mr Dickinson’s submission blurs the boundary between the factual finding on whether or not the special reasons existed, and the exercise of the discretion. The Judge found that, in the particular context of this case, that Ms Anderson was not under any direct threat of violence and that there was no threat to her safety. He concluded that she was facing an unpleasant situation, that she wanted to get away from.

[25] In my judgment, this was a relevant and indeed important consideration in determining whether or not the special reasons asserted existed. The fact that Ms Anderson was not in any particular or immediate danger weighed against any finding that the reasons were special, and were sufficiently compelling to require her to drive. Driving was not something that she had to do in order to deal with an emergency, or because she was in imminent danger. Rather, she chose to drive to get away from a situation which she found unpleasant, but which was not of itself threatening.

[26] It is noteworthy that Judge Taumaunu did not ignore the circumstances which Ms Anderson faced. He took them into account as extenuating circumstances and as mitigating factors in reducing the sentence which might otherwise have been imposed. Judge Taumaunu only fined Ms Anderson $200. He recorded in his sentencing notes that, but for the mitigating factors, the fine for the offending would otherwise have been in the vicinity of $500 to $600.

[27] In my judgment, there was no error in Judge Taumaunu’s decision. His finding that there were no special reasons was correct, and the fine he ultimately imposed was lenient and an appropriate recognition of the no doubt stressful circumstances that Ms Anderson found herself in.

Wylie J