IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2013-409-000056 [2013] NZHC 1893

BETWEEN	SHANNON JAMES CROOSE Appellant

AND	NEW ZEALAND POLICE Respondent

Hearing:	25 July 2013

Appearances:	K H Cook for Appellant
MAV Raj for Respondent

Judgment:	29 July 2013

JUDGMENT OF D GENDALL J

Introduction

[1]       The appellant, who is a male aged 37, was sentenced by His Honour Murfitt in the District Court on 24 April 2013 on the appellant’s third conviction for driving with excess breath alcohol (EBA) to a fine of $500, court costs of $132.89, a zero alcohol licence under s 65B of the Land Transport Act 1998, and indefinite disqualification pursuant to s 65 of the Land Transport Act 1998.

[2]       The appellant now appeals against the order of indefinite disqualification only, on the grounds that the District Court Judge erred in fact and in law in ordering the disqualification.

[3]       As to that aspect, before me the appellant contended and the respondent accepted that the District Court Judge did not have jurisdiction to order the indefinite disqualification under s 65 of the Land Transport Act 1998, given that the prerequisites for such an order were not met.  An order setting aside the indefinite
disqualification therefore is not opposed.

CROOSE v NEW ZEALAND POLICE [2013] NZHC 1893 [29 July 2013]

[4]       Instead, the respondent submits that a disqualification of two years should be ordered in terms of s 56(4)(b) of the Land Transport Act 1998.   In response, the appellant’s position is that a disqualification for a period of between one year and one day, and one year and three months should be ordered, but that nothing more than this is appropriate here.

Background facts

[5]       The current offending occurred on Friday 5 April 2013 about 9:05 p.m. on Buckleys Road, Christchurch, where a breath screening test undertaken by the appellant was positive.   That breath  test showed a level  of 607  micrograms of alcohol per litre of breath.   When spoken to by police the appellant admitted to having drunk four 8% bourbon and cokes.

[6]      The appellant’s previous convictions include one conviction in 1995 for operating a vehicle carelessly and two convictions relating to EBA offences.   The first EBA offence was committed on 13 February 1999 where the level of alcohol was 621 micrograms of alcohol per litre of breath.  The appellant was disqualified from driving for six months and fined $625.

[7]       The second EBA offence was committed on 27 February 2010 where the level of alcohol was 544 micrograms of alcohol per litre of breath and he was fined
$750, ordered to pay court costs and disqualified from driving for six months.

[8]       As I understand the position, in the present case the District Court Judge declined to make an order for confiscation of the appellant’s vehicle under s 129 as he was satisfied there would be undue hardship.

My decision

[9]       As counsel for both parties have accepted, there is no question here that the learned Judge did not have jurisdiction to impose an indefinite disqualification on the appellant pursuant to s 65 of the Land Transport Act 1998.   Under s 65(2) a Judge must make an order for indefinite disqualification if a person has been convicted  of  a  second  or  subsequent  (specified)  EBA offence  and  the  previous

offence is committed within five years of the commission of the offence being dealt with by the Court.  Section 65(3), however, limits the imposition of such an order unless at least one of the offences was an offence where the proportion of alcohol in the person’s breath exceeded 1000 micrograms of alcohol per litre of breath, or the proportion of alcohol in the person’s blood exceeded 200 milligrams of alcohol per
100 millilitres of blood, or there was an offence against s 59 or s 60.

[10]     Before me, all parties accepted that although the appellant does come within s 65(2) of the Act here, he does not qualify under subs (3) as his alcohol level (607 micrograms) did not reach the threshold level.   Therefore, an order for indefinite disqualification could not be made.

[11]     The other route by which indefinite disqualification can be ordered under s 65 is under subs (4).  The Court must make such an order if the person is convicted of a third or subsequent offence and the two or more previous offences were committed within five years of the commission of the offence being dealt with by the Court.  It is accepted here, however, that the Court also had no jurisdiction to make an order under subs (4), given that the appellant’s previous convictions were in 1999 and 2010.

[12]     The order for indefinite disqualification is to be set aside under s 65 and an order to this effect will follow.

[13]     The  issue  remains,  however,  as  to  the  duration  of  disqualification  to  be imposed on the appellant here,  given that under s 56(4)(b) of the Land Transport Act
1998 the Court must order the appellant on the present conviction to be disqualified from holding a drivers’ licence for more than one year.

[14]     On this, before me Ms Raj, for the respondent, has cited the decision in Fairbrother v Police,1 a 2002 case.  There, the appellant was fined $1500, ordered to pay court costs of $130 and disqualified from driving for two years after pleading guilty to an EBA charge, having an alcohol level of 568 micrograms per litre of breath.   The appellant had two previous convictions for EBA, one in 1998 with a

level of 194 milligrams of alcohol per 100 millilitres of blood, and a second in 1997 with a level of 625 micrograms of alcohol per litre of breath.   In that case the appellant appealed against the period of disqualification only and Her Honour Ellen France J held that a comparison with relevant authorities suggested that the two year period of disqualification was not clearly excessive for offending of that type.

[15]     In doing so at [22] Her Honour held that:

Given that for a second drink drive conviction a period of disqualification of
18 months can be legitimately imposed, it does not appear manifestly excessive to inflate the period of disqualification where there is a third or
subsequent  conviction.    Indeed  this  escalation  of  sentence  is  statutorily
prescribed.

[16]     In  that  case  Ellen  France  J  also  held  that  ultimately  the  total  sentence imposed must be taken into account even though only a disqualification is appealed. At [23] Her Honour held that:

...given  that  imprisonment  would  appear  to  be  the  usual  though  not inevitable consequence for recidivist drink driving offences...it seems that a comparatively longer period of disqualification can be countenanced where the offender is subject to a monetary penalty rather than a custodial sentence (as here).

Her Honour then dismissed the appeal against a two year disqualification.

[17]     Notwithstanding  this  decision,  it  is  clear  in  the  present  case  that  the appellant’s two previous EBA convictions occurred 14 years ago in 1999 and three years ago in 2010 respectively.  On this aspect the Court of Appeal in R v Stone,2 in dealing with an appeal against an order for disqualification of 18 months for an eighth offence of driving with excess breath alcohol, noted in part at paragraph [19]:

[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).

[18]     The maximum penalty for a third or subsequent offence of driving with excess breath alcohol is two years’ imprisonment or a fine not exceeding $6000. The minimum period of disqualification for such an offence is 12 months.

[19]     In the case before me, the respondent accepts that the manner of driving which led to the appellant being stopped was unremarkable.  There was no careless driving or speeding on his part to create aggravating features.

[20]   Instead, Mr Cook, for the appellant, contended that although appellate authorities in this area have emphasised the point that there is always difficulty in discerning an appropriate tariff or pattern for EBA disqualification periods because of the multiplicity of factors that are relevant, several recent decisions are instructive. According to Mr Cook these cases indicate that much more serious offending committed by recidivist offenders received disqualification periods in the region of two years and that, in the present case, an order for disqualification should be near the bottom of the range between one year, and 15 months.

[21]     Mr  Cook  for  the  appellant  took  me  through  numerous  cases  which  he contended supported his contention outlined above.  It is difficult in situations such as  the  present  to  compare  cases.    As  Fogarty  J  noted  in  Lawrie  v  Police,3   in comparing cases very often by way of example the variables include the level of intoxication on the occasion in question, the level of intoxication on previous occasions, whether or not the driving was dangerous, and the other aspects of the sentence.

[22]     As I have noted above, on the present occasion it seems the appellant was stopped by the police not because he was driving dangerously but simply to see whether or not he had been drinking and was given a breath screening test.  His level at 607 micrograms of alcohol per litre of breath is at an average level which is lower than certain other levels where there have been periods of disqualification longer than Mr Cook considers appropriate here of up to two years imposed.

[23]     Although in light of Mr Cook’s contention that it is difficult to discern tariffs here and that therefore this appeal should be remitted back to the District Court to determine the disqualification period, it is clear in the past this has not occurred.  I am satisfied that in the present case this Court is properly placed to determine an appropriate length of disqualification for the appellant.  The alternative might lead to appeals in almost every case being referred back to the District Court to determine disqualification period which, as I see it, would be unwieldy and unsatisfactory.

[24]     I also take into account here the fact here that the appellant received a fine of only $500 (which both counsel before me accepted was lower than would ordinarily be imposed in a situation such as the present) and no custodial sentence.  In terms of the decision in Stone, noted at paragraph [17] above, there needs to be some compensation for the reduction in fine, and it is my opinion that viewed as a package the  appropriate  sentence  here  should  include  a  disqualification  for  a  period  of
14 months.

Result

[25]     For the reasons outlined above the appeal must be allowed.

[26]     The  sentence  of  indefinite  disqualification  is  quashed  and  a  sentence  of

14 months disqualification is substituted to take effect from the date the present disqualification commenced.   The other sentences imposed by the District Court remain.

...................................................
D Gendall J

Solicitors:
K H Cook, Christchurch
Raymond Donnelly & Co, Christchurch