Kereopa v Police HC Whangarei CRI-2011-488-41

[2011] NZHC 1030

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2011-488-41

BETWEEN  LEON JAHN KEREOPA Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         6 September 2011

Counsel:         N S Leader for Appellant

M A Jarman-Taylor for Respondent

Judgment:      6 September 2011

JUDGMENT OF BREWER J

SOLICITORS/COUNSEL

Nick Leader (Whangarei) for Appellant

Marsden Woods Inskip & Smith (Whangarei) for Respondent

KEREOPA V POLICE HC WHA CRI-2011-488-41 6 September 2011

Introduction

[1]      Mr Kereopa appeals against the length of a disqualification order made in the

District Court.

[2]      On 3 May 2011 District Court Judge TH Everitt sentenced Mr Kereopa on a number of charges relating to methamphetamine.  On all the charges the appellant was sentenced to community work of 200 hours and 18 months’ intensive supervision.  In respect of the period of disqualification, Judge Everitt ruled:[1]

[1] Police v Kereopa DC Whangarei CRI-2010-044-9136, 3 May 2011 at [5].

He is disqualified from holding or obtaining a motor driver’s licence for refusing blood for 18 months starting today.  I regard that as an extremely serious offence.   A person driving a vehicle under the influence of methamphetamine is a disgrace.

Defence submissions

[3]      Mr Leader, in careful and thorough submissions, develops his point that the order of 18 months’ disqualification is clearly excessive.   The appellant pleaded guilty to the charge that he refused to permit a blood specimen to be taken after having been required to do so under s 72 of the Land Transport Act 1998 by an enforcement officer, pursuant to s 60(1)(a) of the Land Transport Act 1998.   The summary of facts was not disputed.

[4]      In short, Mr Kereopa was seen to be driving erratically on State Highway 1 on 14 December 2010.  The vehicle was stopped and the appellant was arrested.  The appellant’s demeanour was that he could not keep still, he was chewing on his lips and his eyes were glazed.  With the combination of erratic driving and demeanour, the Police had good cause to suspect he was under the influence of drink or drugs. After passing a breath  screening test  for alcohol,  the appellant  was  required  to undergo a compulsory impairment test. The appellant failed the test and then refused the officer’s request for a blood sample.

[5]      Mr Leader points out that this was the appellant’s first offence of its kind and under s 56(3) of the Land Transport Act if a person is convicted of a first or second

offence then, in addition to a penalty not to exceed three months’ imprisonment or a fine over $4,500, the Court must order the person to be disqualified from holding or obtaining a driver’s licence for six months or more.

[6]      Mr  Leader  submits,  persuasively,  that  an  order  for  disqualification  for  a period of three times the statutory minimum must be justified by the particular facts upon application of the relevant case law.   His overarching submission is that the facts of this case are not exceptional and that  for a first offence the period of disqualification is clearly excessive.

[7]      Mr Leader has not found any appellate decisions relating to the refusing of a blood specimen following the failure of a compulsory impairment test.  However, he submits that Parliament has set the same sentences for refusing a blood specimen following the failure of a compulsory impairment test as it has for refusing a blood specimen in relation to drink driving.  He submits, therefore, that assistance may be gained by considering cases in the latter jurisdiction.  I agree.

[8]      Mr  Leader  has  referred  me  to  the  decision  of  the  Court  of  Appeal  in R v Stone.[2]     This relates to periods of disqualification for recidivist drink drivers, which, I accept, is a more serious category of offending than in the present case. Periods of disqualification range from 10 to 14 months.

[2] R v Stone [2009] NZCA 539.

[9]      Mr Leader also refers me to the dicta of Panckhurst J in R v Duncan[3]  to the effect that disqualification orders should be kept as short as is possible in relation to achievement of the underlying end of road safety.  I respectfully concur.

[3] R v Duncan HC Christchurch CRI 34/03 17 July 2003.

[10]     So far as decisions involving methamphetamine are concerned, Mr Leader relies on the case of Nguyen v Police.[4]    That case involved an appellant who had been sentenced on charges of refusing to accompany an enforcement officer, refusing to permit a blood specimen to be taken (third or subsequent offence), dangerous driving, driving while suspended, threatening to kill and trespass. Asher J imposed a

disqualification period of 18 months in those circumstances.

[4] Nguyen v Police HC Auckland CRI-2006-404-370, 21 November 2006.

[11]   Looking at this case, Mr Leader submits that an appropriate period of disqualification would be in a range of six to nine months, with perhaps a period of eight months being appropriate.

Crown submissions

[12]     The Crown submits that in an area where promoting road safety is of the first importance,  the  District  Court  Judge  was  entitled  to  take  a  severe  view  of  a defendant who was clearly a drug addict and who had been driving erratically prior to being stopped and arrested.

[13]     The Crown has, however, referred me to s 60(3) of the Land Transport Act which provides a mandatory minimum period of disqualification of more than one year where a person has committed a third or subsequent offence of this kind.

[14]     The Crown has also referred me to the case of Akast v Police.[5]   In that case the appellant, a first offender, had been disqualified for a period of eight months.  On appeal, Defence counsel argued that for first time offenders the minimum period of disqualification  of  six  months  should  be  imposed.     Gendall J  rejected  that submission, pointing out that this would fetter the discretion of a sentencing Judge who must be able to impose a period of disqualification above the minimum period prescribed by the statute if that is what the circumstances require.   The appeal against sentence was dismissed accordingly.

[5] Akast v Police HC Auckland CRI-2004-404-183, 26 August 2004.

[15]     Crown counsel, while doing her best to support the approach taken by the learned District Court Judge, nevertheless accepts that in all the circumstances a starting point for disqualification could be in a range of six to nine months.

Decision

[16]     I have decided that the period of disqualification imposed by the District

Court  Judge  was  manifestly  excessive.    The  circumstances  of  the  appellant’s

offending did not require a period of disqualification three times that of the statutory

minimum and 50% higher than the minimum required for a third or subsequent offence.  Judge Everitt was entitled to be concerned that the refusal to give a blood sample followed a period of erratic driving and a failed compulsory impairment test, and that the appellant gave every indication of being a drug addict and therefore presenting a continuing risk to the public if driving.   He was entitled to find that these factors lifted the case above the statutory minimum.  But in my view, having considered the authorities cited to me and referred to above, I consider a period of disqualification of eight months to be within the range available and to be sufficient in the circumstances.

[17]     Accordingly,   I  allow  the  appeal,  quash  the  sentence  of  18  months’

disqualification and substitute a sentence of eight months’ disqualification.

Brewer J