Burley v Police

[2015] NZHC 149

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2014-409-126 [2015] NZHC 149

MARK JOSHUA BURLEY Appellant

v

NEW ZEALAND POLICE Respondent

Hearing:	12 February 2015
Counsel:	S A Law for Appellant C D Newman for Respondent
Judgment:	12 February 2015

JUDGMENT OF BROWN J

[1]      The    appellant    appeared    in    the    Christchurch    District    Court    on

20 October 2014 for sentence on a charge of excess breath alcohol.  The maximum penalty  for  an   offence  against   s 56(1)  of  the   Land  Transport  Act 1998   is imprisonment for a term not exceeding three months’ imprisonment and a minimum disqualification from holding or obtaining a drivers licence for six months.

[2]      This  was  the  defendant’s  third  conviction,  he  having  previously  been convicted  of  an  offence  against  s 57  committed  on  6 June 2008  and  an  offence against s 56 committed on 18 December 2010.

[3]      The appellant was sentenced to 100 hours community work and orders were

made confiscating the appellant’s motor vehicle and disqualifying him from holding

or obtaining a drivers licence under s 65 of the Act.

BURLEY v NZ POLICE [2015] NZHC 149 [12 February 2015]

[4]      His appeal is confined to the order of a indefinite disqualification on the grounds that the Judge did not have jurisdiction to impose that penalty.

[5]      It is common ground that there was no jurisdiction for the Court to impose an indefinite disqualification in this case.  Section 65 of the Act states:

65       Mandatory penalties for repeat offences involving use of alcohol or drugs

(1)      This section applies to offences against any of sections 56 to 62.

[(2)      A  court  must  make  an  order  requiring  a  person  to  attend  an assessment centre and disqualifying the person from holding or obtaining a driver licence until the Agency removes that disqualification under section 100 if—

(a)       the court convicts that person of a second or subsequent offence against any of sections 56 to 62; and

(b)       the previous offence was committed within 5 years of the date of the commission of the offence being dealt with by the court.]

(3)       [Despite subsection (2), the] court may not make an order referred to in subsection (2) unless at least 1 of the offences was—

(a)      An offence to which this section applies where either—

(i)        The proportion of alcohol in the person's breath, as ascertained by an evidential breath test, exceeded

1,000 micrograms of alcohol per litre of breath; or

(ii)      The proportion of alcohol in the person's blood, as ascertained from an analysis of a blood specimen, exceeded 200 milligrams of alcohol per 100 millilitres of blood; or

(b)       An offence against section 59 or section 60 (which relate to failing to remain or to accompany or to permit a blood specimen to be taken for the purposes of the administration of breath tests and blood tests).

[(4)      The court must make an order that requires a person to attend an Assessment Centre and that disqualifies that person from holding or obtaining a driver licence until the [[Agency]] removes that disqualification under section 100 if—

(a)       the  court  convicts  that  person  of  a  third  or  subsequent offence to which this section applies; and

(b)       the 2 or more previous offences were committed within 5 years of the date of the commission of the offence being dealt with by the court.]

(5)       For the purposes of this section, a conviction for an offence against a provision of the Transport Act 1962 corresponding to an offence to which this section applies is to be treated as a conviction for an offence specified in subsection (1).

[6]      While the appellant accepts that his previous offending satisfied the criteria in s 65(2), the appellant’s previous convictions did not involve the levels of alcohol required by s 65(3).  Nor did the appellant have convictions for an offence against ss 59 or 60.

[7]      Furthermore, only one of the appellant’s prior offences was committed within five years of the date of the commission of the third offence.  Hence a sentence of indefinite  disqualification  pursuant  to  s 65  of  the Act  was  not  available  to  the sentencing Judge.   Accordingly, the order for disqualification of the appellant pursuant to s 65 of the Act must be quashed.

[8]      It is necessary for me to consider afresh the period of disqualification of the appellant from driving.

[9]      For the respondent, it is accepted that the manner of driving in the appellant’s case was otherwise unremarkable and there was a gap between the previous convictions.  However, taking into account all of the factors including the sentence imposed and his previous convictions, the respondent submits that a period of disqualification  of  12 months  or  more  would  be  appropriate.    By  contrast  the appellant submits that a disqualification period of no longer than 10 months was appropriate.

[10]     The purpose of disqualification is not punitive but to protect other road users from further driving that puts the public at risk.1   Imposition of the least penalty that would operate as a deterrent is desirable for uniformity in sentences imposed at the

District Court level.2   That is consistent with s 8(g) of the Sentence Act 2002 which

1      Husband v Napier City Council [1979] 1 NZLR 317 (CA) at 320.

2      Eteuati v Police HC Wellington CRI 2003-485-91, 16 December 2003 at [15].

stipulates that courts must impose the least restrictive outcome that is appropriate in the circumstances.

[11]     In Lawrie v Police,3  Fogarty J commented on the comparison of different excess breath alcohol cases:

[5]       I have been taken through numerous cases by both counsel. It is difficult of course to compare cases. Very often, for example, the variables include the level of intoxication on this occasion, the level of intoxication on previous occasions, whether or not the driving was dangerous and the other aspects of the sentence. On this occasion the appellant appears to have been stopped by the police, not because he was driving dangerously but just simply to see whether or not he had been drinking and was given a breath screening test. So this is not occasioned by any dangerous driving. The level at 525 was significantly lower than some other levels where there have been longer periods of disqualification of up to two years imposed.

[12]     The sentence of two years disqualification and 250 hours community work was considered out of line with the general run of cases.  The disqualification was reduced to 13 months, the appellant already having been “effectively disqualified” for two to three months before his appeal was heard.

[13]     In the present case, the appellant’s reading was marginally over the limit, he appears to be of general good character and there is a significant gap between this offence and his last conviction.

[14]     The  appeal  is  allowed,  and  the  order  for  disqualification  under  s 65  is quashed.  In substitution I impose a period of disqualification of nine months (which amounts  to  an  effective  disqualification  period  of slightly more than  12 months taking into account the time which has elapsed since the sentencing in the District

Court).

Solicitors:

AndersonLloydLawyers, Christchurch

Raymond Donnelly & Co, Crown Solicitors, Christchurch

Brown J

3      Lawrie v Police HC Christchurch CRI 2010-409-190, 21 October 2010 at [5].