McLachlan v Police

[2017] NZHC 805

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2017-404-000058 [2017] NZHC 805

BETWEEN

COLIN NEIL MCLACHLAN

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	26 April 2017
Appearances:	Appellant in person SR Norrie for Respondent
Judgment:	27 April 2017

JUDGMENT OF DOWNS J

This judgment was delivered by me on Thursday, 27 April 2017 at 3.30 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Kayes Fletcher Walker Ltd, Manukau.

Copy to: Appellant

MCLACHLAN v POLICE [2017] NZHC 805 [27 April 2017]

[1]      Mr McLachlan pleaded guilty to driving with an excess breath alcohol level of   562   micrograms   of   alcohol   per   litre   of   breath.1      The   conviction   was Mr McLachlan’s third of this nature.2    Judge McIlraith sentenced the appellant to a term of 12 months’ supervision.   He disqualified the appellant from driving for a year and a day.3   Two grounds of sentence appeal are advanced.  First, the charging document recorded the maximum penalty as 12 months disqualification.  The Judge exceeded this by one day.   Second, the Judge was wrong to impose a sentence of supervision.

[2]      Both can be dealt with briefly.  The Judge was required by s 56(4)(b) of the Land Transport Act 1988 to disqualify Mr McLachlan from driving for a period greater  than  12  months  because  this  was  Mr McLachlan’s  third  conviction  for driving with excess breath alcohol.  By disqualifying Mr McLachlan for a period of

12 months and one day, the Judge imposed the minimum penalty.

[3]      The  charging  document  incorrectly  stated  the  maximum  disqualification period as one year.  That does not matter. A charging document cannot be dismissed, set aside or held invalid by reason only of any defect, irregularity, omission, or want of form unless there has been a miscarriage of justice.4   There can be no miscarriage of justice because the Judge imposed the most lenient sentence available.   This ground fails.

[4]      Mr  McLachlan  submits  the  pre-sentence  report  had  no  “grounding  or evidence of alcohol addiction or abuse that needed correction under ss 50 and 52 of the Sentencing Act 2002”.  In oral argument, Mr McLachlan said Corrections “had got the wrong of the stick” in that he had no problem with alcohol.  I do not accept either argument.   The pre-sentence report assessed Mr McLachlan as “having an inflated  sense  of  entitlement  and  problematic  alcohol  use”  and  “poor  insight” vis-à-vis alcohol consumption.  And the fact of three convictions for driving with

excess breath alcohol (within eight years) implies an alcohol problem.

1      In contravention of the Land Transport Act 1998, ss 56(1) and 56(4).

2      In September 2009 Mr McLachlan drove with a breath alcohol level of 599 micrograms per litre of breath. In January 2011 he drove with a breath alcohol level of 713 micrograms per litre of breath.

3      Police v McLachlan [2017] NZDC 5082.

4      Criminal Procedure Act 2011, s 379.

[5]      A sentence of supervision was required.    Indeed, as the Judge noted, the sentence is lenient. This ground fails too.

[6]      The appeal is dismissed.

……………………………..

Downs J