IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2010-419-44

REGINALD REWI ROGERS
Appellant

v

NEW ZEALAND POLICE
Respondent

Hearing:	6 July 2010

Appearances: J E Allen for the Appellant
J M O'Sullivan for the Respondent

Judgment:	9 July 2010

RESERVED JUDGMENT OF ELLIS J

This judgment was delivered by me on 9 July 2010
At 3.00 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:	Almao Douch, Crown Solicitors, PO Box 19173, Hamilton 3244
Counsel:	J E Allen, PO Box 328, Cambridge 3450

ROGERS V POLICE HC HAM CRI-2010-419-44  9 July 2010

[1]       Mr Rogers pleaded guilty to, and was convicted of, one charge of driving with excess breath alcohol (third or subsequent occasion) and one charge of impersonating a police officer.

[2]       The maximum sentence for driving with excess blood alcohol on a third or subsequent occasion is a term of imprisonment not exceeding two years or a fine not exceeding $6,000 and disqualification from holding a drivers licence for one year or more: Land Transport Act 1998 s 56(2).  The maximum sentence for impersonating a police officer is 12 months imprisonment and/or a $15,000 fine.

[3]       The events leading to Mr Rogers’ convictions took place on 30 November and 1 December 2009.  More particularly, on 30 November, at around 11 o’clock in the morning, Mr Rogers approached a woman, while intoxicated, and told her that he was a police constable and to get into his car.  When she declined he became abusive towards her.  Eventually a bystander called police.

[4]       The following day, at about 10.30 am Mr Rogers was seen in his car on Moana Street and police were again called.  Although the statement of facts does not disclose this, it appears he was then found by them, in his, car asleep.   Ms Allen advised  that  he  admitted  to  having  recently  driven  his  car.    The  results  of  an evidential breath test administered at the scene yielded a result of 1257 micrograms of alcohol per litre of breath, which is over three times the legal limit.

[5]       Mr Rogers has previous convictions including two for driving with excess breath alcohol in 1974 and 1987, and a number for other relatively minor offences. He has, however, had no criminal convictions since 1987.

Sentencing in the District Court and the Basis for the Appeal

[6]       Judge Burnett sentenced Mr Rogers to four months community detention,

150 hours community work and 12 months supervision.  She also disqualified him from holding or obtaining a drivers licence for two and a half years.  In doing so she took account of his early guilty pleas, the recommendations in the pre-sentence report and letters written in support of Mr Rogers.  It appears she was particularly

swayed, however, by the very high level of breath alcohol and the fact of Mr Rogers’

previous convictions.

[7]       For  various  reasons  Mr  Rogers  did  not  appeal  Judge  Burnett’s  decision within the specified 28 day period and on 10 May 2010 an application to extend the time for filing a notice of appeal was filed on his behalf.  There was no opposition to this application by the Police and I am prepared to grant the application on that basis and to deal with the appeal on its merits.  The merits of the appeal would, in any event, be of central relevance to the determination of the application.

[8]       The appeal was advanced on the basis that the length of the disqualification period imposed by Judge Burnett was “manifestly excessive”.

Discussion

[9]       I accept that the two and a half year period of disqualification imposed by Judge  Burnett  is  on  the  severe  side,  at  least  when  compared  with  other  cases involving “only” two previous breath alcohol convictions.   The graph that can be found at [15] of the Court of Appeal’s judgment in R v Stone    shows that (as at November 2009) the only offenders who have been disqualified for two and a half to three  years  are  those  having  seven  or  more  previous  convictions.    The  graph
indicates that disqualification in the 12–18 month range is the norm for those with two previous convictions.

[10]     That said, however, the data contained in the graph must be interpreted with caution.   As the by the Court of Appeal itself said (at [16]), the graph shows that there is no real correlation between the number of EBA convictions and the period of disqualification imposed.  The Court then went on to say:

[17]   There are at least three explanations for this. The first is the mandatory disqualification regime imposed by s 65, described in [11]-[12]. Whenever a recidivist   EBA   offender   is   indefinitely   disqualified,   it   removes   any correlation between the number of previous convictions and the length of disqualification.

[18]   Secondly, the ability of a District Court Judge to disqualify a third or subsequent EBA offender indefinitely (because only a minimum period of disqualification is mandated). District Court Judges do this regularly, when they consider the offender has reached the stage where he or she needs to be disqualified from driving unless and until they can demonstrate positively that they are again fit to hold a driver licence. Indefinite disqualification is for a minimum period of a year and a day, ie a day over the one year mandatory minimum period of disqualification. Indefinite disqualification can  perhaps  be  viewed  as  the  drink-driving  equivalent  of  preventive detention. As already explained, whenever indefinite disqualification is imposed, it defeats any correlation between the number of convictions and the period of disqualification.

[19]   Thirdly, the impact on disqualification periods of District Court Judges applying  the  criteria  listed  at  [20]  in  Clotworthy.  For  example,  not  all previous convictions are given the same weight. If an offender has ten previous convictions, but nine of them occurred in the 1980s, the period of disqualification is likely to be shorter than that imposed on an offender who has accumulated five EBA convictions in the previous 18 months (other factors being equal).

[11]     Thus   my   acceptance   of   Ms   Allen’s   submission   that   the   period   of disqualification imposed on Mr Rogers was severe, and the relevance of that acceptance to this appeal, must be viewed in light of these qualifications.

[12]     Ms Allen also relied, in support of Mr Rogers’ appeal, on the recent judgment of mine in Marshall v Police.  In that case Mr Marshall had been sentenced in the District Court to an effective term of 10 months imprisonment and was disqualified from driving for 3 years.   At twice the legal limit his breath alcohol level was significantly  less  than  Mr  Rogers’  but  he  had  been  driving  erratically.    Like Mr Rogers, Mr Marshall had two previous EBA convictions.

[13]     On appeal against both aspects of Mr Marshall’s sentence I upheld the term of imprisonment imposed but reduced the period of disqualification from 3 years to
18 months on the grounds that that aspect of the sentence was manifestly excessive. As I made clear (at [21]) that conclusion was reached on the basis of:

a)      The sentence of imprisonment that had been imposed (and upheld);

b)	The fact that Mr Marshall was indefinitely disqualified from driving by virtue of the operation of s 65 of the Land Transport Act;

c)	The results of the survey of similar cases contained in Stone, to which I

have already referred above.

[14]     It will immediately be appreciated that there are material differences between the cases of Mr Marshall and Mr Rogers.  As Mr Rogers is not subject to mandatory indefinite disqualification and thus Panckhurst J’s dicta in Dixon v NZ Police at [42] – [45] do not apply.   Put simply, indefinite disqualification provides for the protection of the public. Thus in cases involving indefinite disqualification, the imposition of an additional, severe, finite term of disqualification is less likely to be justified in terms of the statutory ends that disqualification is intended to achieve.

[15]       As well, Mr Marshall’s sentence of imprisonment was, in my view, plainly more severe than the non-custodial sentence imposed on Mr Rogers.  In saying that I also bear in mind the fact that Mr Rogers’ sentence would necessarily have taken account of the totality of his offending, by which I mean his conviction in relation to the separate offence of impersonating a police officer.  So even though it might on its face be said that Mr Rogers’ non-custodial sentence was more stern than (for example) the eight months home detention that was imposed on Mr Stone, any such severity must be viewed in light of the other offending that was also relevant to the sentence imposed.

[16]     In terms of the factors listed at [20] of the Clotworthy judgment (which are referred to in the context of periods of disqualification at paragraph [19] of Stone) Mr Rogers’ extremely high breath alcohol reading was plainly significant.  That said, I accept that the considerable length of time since his last EBA conviction together with the fact that there appears to be no evidence that he was driving dangerously would counterbalance that somewhat.

[17]     In the end, however, I do not think that consideration of the Clotworthy factors is of any great assistance to me in determining the appropriate disposition of this  particular  appeal.    That  is  because  in  my  view  there  is  no  real  basis  for suggesting  that  Judge  Burnett  failed  to  have  due  regard  to  those  factors  when arriving at her sentence.

[18]     For all of the above reasons I do not regard it as open to me to differ from the two and a half year period of disqualification imposed by Judge Burnett.  In light of the particular circumstances of Mr Rogers’ case it cannot be said that this was manifestly excessive.

[19]     The appeal is dismissed accordingly.

Rebecca Ellis J