IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-000218 [2013] NZHC 2548

BETWEEN	JAMES CLIFFORD BOOL
Appellant	
AND	NEW ZEALAND POLICE
Respondent	

Hearing:	30 September 2013	
Counsel:	N M Silich for Appellant M J Hammer for Crown	
Judgment:	30 September 2013	

JUDGMENT OF COLLINS J

Introduction

[1] Mr Bool was convicted by Judge Ryan of driving with 638 micrograms of alcohol per litre of breath and sentenced to 120 hours community work. He appeals both his conviction and sentence.

[2]      The questions I have to consider are:

Whether Mr Bool was driving the vehicle in question out of necessity; and if not,

Was there a special reason for not disqualifying Mr Bool from driving for a fixed period; and if so,

Could a sentence of community work be imposed; and if so,

BOOL v NEW ZEALAND POLICE [2013] NZHC 2548 [30 September 2013]

Was the sentence of 120 hours’ community work clearly excessive or inappropriate.1

Context

[3] At 4.30 am on 5 July 2012 Mr Bool waved down a police vehicle on the Great North Road. Mr Bool’s vehicle was blocking traffic and he told the police that he had run out of petrol after driving from Massey to Henderson. Mr Bool explained that he had been assaulted and that he was trying to get medical help.

[4] Mr Bool explained that he, a work friend and another person were at an address in West Auckland. They then went into Auckland city to watch a rugby league match. Mr Bool became involved in a brawl outside the pub they were at. Mr Bool sustained an injury but no medical assistance was sought or given. Mr Bool was placed in a taxi by his associates but never saw them again.

[5]   Mr Bool said that he lapsed in and out of consciousness in the taxi and did not give the driver any directions but was dropped off at an address where his van was. Mr Bool said that he knocked on the door of the address but no one answered. He then drove his van to a medical centre but it was closed. He then tried to go to another medical centre. The police took Mr Bool to hospital where he reported symptoms of a headache, was administered panadol and kept under observation for two to three hours.

[6]     During the course of her judgment Judge Ryan pointed out Mr Bool’s account of events was not corroborated by:

either of Mr Bool’s associates who he appears not to have been able to locate to give evidence;

the taxi driver who was not called as a witness; and

medical evidence of Mr Bool’s previous head injuries.

[7]      While outlining the evidence Judge Ryan also noted:

that despite going into the central city to watch a major rugby league match, Mr Bool could not remember who had won the game; and

that an unnamed taxi driver from an unnamed taxi company drove Mr Bool all the way to West Auckland when he had no wallet, cash or cellphone. Judge Ryan thought Mr Bool’s account sound implausible.

[8]     However, despite her reservations about the reliability of Mr Bool’s account of events Judge Ryan did accept that Mr Bool did have an injury that required him to be kept in hospital for two to three hours. In these circumstances Judge Ryan concluded Mr Bool believed he had no option but to seek medical attention.

[9]   Although Judge Ryan did not find Mr Bool satisfied the legal requirements of the defence of necessity, she did find that there was a “special reason” under s 81 of the Land Transport Act 1998 to not impose a period of disqualification. Instead Judge Ryan imposed 120 hours’ community work comprising 60 hours for the offence and 60 hours in lieu of Mr Bool being disqualified.

The defence of necessity

[10]    The law governing necessity was helpfully summarised in Hocking v Police
in the following way:2

Common law defences are preserved by s 20 of the Crimes Act 1961, to the extent that they are not altered by or inconsistent with the Act. The common law does recognise that a defence of necessity, or duress of circumstances, might be available in some circumstances. The metes and bounds of that defence are quite strictly circumscribed. In Kapi v Ministry of Transport ... [the] possible defence [of necessity was described] in these terms:

“We consider on the authorities cited to us that a defence of necessity, if available in New Zealand, requires at least a belief formed on reasonable grounds of imminent peril of death or serious injury. Breach of the law then is excused only where there was no realistic choice but to act in that way. Even then the response can be excused only where it is proportionate to the peril.”

[11] In R v Hutchinson the Court of Appeal applied the test outlined in Kapi and added a further requirement in these terms:3

An unstated, but in our view necessarily implicit, additional element is the need to establish a nexus between the imminent peril of death or serious injury and the choice to respond to the threat by unlawful means.

[12] The strictness of the test that governs the law of necessity was affirmed by the Court of Appeal in R v Lamont.4 In that case, the appellant was charged with causing death by careless use of a motor vehicle. He had driven at excessive speed and ultimately lost control of and crashed his vehicle after another vehicle had allegedly “tailgated” his vehicle causing him to panic. The Court of Appeal upheld the refusal of the trial Judge to allow the defence of “duress of circumstances” to go to the jury. The Court of Appeal said:5
The type of emergency situations for which these defences may be available are those in which fear for life and limb is such as to compel breach of the law. If a breach of the law is by way of response to such threats and fear it is to be expected that the attribution would be immediate. Yet in this case, … despite it being put to him more than once the appellant gave no evidence that he feared death or serious injury. …

…

… A concern at having his car hit or even shunted in the rear does not amount to fear of death or serious injury.

[13] In the circumstances of this case there were four requirements before the defence of necessity could apply:

Mr Bool must have believed he was in imminent risk of dying or suffering serious injury;

That belief must have been reasonable;

Mr Bool’s unlawful conduct in driving with excess breath alcohol needed to be in response to his reasonable belief that he was in imminent risk of dying or suffering serious injury;

3	R v Hutchinson [2004] NZAR 303 (CA) at [34].
4	R v Lamont CA442/91, 27 April 1982.
5	At 8-10.

Mr Bool’s response needed to be proportionate to the risk.

Analysis

[14] Judge Ryan found Mr Bool did believe he had no option but to seek medical attention. However, this does not equate to a belief of imminent peril of death or serious injury. It is clear Judge Ryan did not think Mr Bool’s belief that he needed to get medical attention satisfied the criteria for the defence of necessity. There were other options available to Mr Bool other than driving. He could have knocked on more doors, waved down another vehicle or asked the taxi driver to take him to hospital.

[15] Mr Bool also challenges Judge Ryan’s findings on credibility. However, I am satisfied this criticism of Judge Ryan’s decision is misplaced. Judge Ryan had the advantage of assessing the credibility of the key witnesses. In R v Munro the Court of Appeal recognised that there are advantages in a trial Judge seeing and hearing witnesses in the context of all of the evidence.6 This aspect of Munro was affirmed by the Supreme Court in Owen v R when the Supreme Court recognised the advantages of lower courts have in assessing the honesty and reliability of witnesses.7

[16] Mr Bool also submits Judge Ryan did not apply the appropriate burden when she considered the defence of necessity.

[17]  Judge  Ryan  made  it  clear  that  the  burden  was  on  the  prosecution  not Mr Bool. She said the onus of proving the charge rested on the informant. She said there was no onus on Mr Bool to prove he was innocent and that the informant needed to negate the defence of necessity.

[18] However,  later  in  her  judgment  Judge  Ryan  said  the  evidence  given  by Mr Bool was not credible and that in the absence of medical evidence necessity could not be made out. Judge Ryan was not satisfied on the basis of Mr Bool’s evidence that he was in immediate peril of death or serious injury.

6	R v Munro [2007] NZCA 510, [2008] 2 NZLR 87.
7	Owen v R [2007] NZSC 102, [2008] 2 NZLR 37 at [15].

[19]     There are three ways of interpreting Judge Ryan’s approach.  Either:

she did not think Mr Bool had discharged the evidential burden of showing that there was evidence to provide a credible or plausible narrative that raised the defence of necessity; or

the Judge thought the prosecution negated any reason for doubt raised by the defence; or

the Judge erred and found Mr Bool had not proven the defence of necessity beyond reasonable doubt.

[20] I am satisfied the first of these scenarios represents what transpired. All Judge Ryan was saying was that if medical evidence had been produced of Mr Bool’s previous head injury then Mr Bool may have discharged the evidential burden that he needed to satisfy to show that necessity was properly raised.

Appeal against sentence

[21] Under s 56(1) of the Land Transport Act 1998 Mr Bool faced mandatory disqualification.

[22] However, s 81 of the Land Transport Act 1998 provides the Court with a discretion not to impose a mandatory period of disqualification if  the Court is satisfied that “for special reasons relating to the offence” the Court thinks it fit not to order disqualification. Section 81 of the Land Transport Act 1998 is subject to s 94 which provides that where an offender has previously been disqualified and the Court considers that sentencing the offender to a community based sentence in accordance with Part II of the Sentencing Act 2002 would be appropriate, the Court may impose such a sentence in lieu of disqualification in certain circumstances. The purpose of this sentence is remedial and to try and divert recidivist disqualified drivers from an unending cycle of offending.

[23] The first step is to determine whether there is a special reason relating to the offence not to disqualify the defendant. If there are no special reasons then the Court

can consider under s 94 whether a community based sentence should be imposed instead of disqualification.

[24] Mr Bool submits that because this was his first conviction for a breath/blood alcohol offence the sentence of 120 hours’ community work was clearly excessive and that if his appeal against conviction is dismissed then his appeal against sentence should be allowed by having his sentence of community work replaced with a fine.

[25] However, the Crown submits that no special circumstances were established and that a six month period of disqualification should not have been imposed. Alternatively, if s 94 was to be invoked then the sentence of community work was appropriate because Mr Bool has two previous traffic convictions.

Assessment

[26]   A special reason is “a mitigating or extenuating circumstance, not amounting in law to defence to the charge, yet directly connected with the commission of the offence and one which the court ought properly take into account when imposing punishment”.8

[27] After careful reflection I do believe that a special reason existed in this case because although Mr Bool was not acting out of necessity, he did believe that he was compelled to seek medical attention.

[28] Having reached this conclusion I must then assess what sentence should have been imposed for this type of offending. In my assessment, a fine is usually imposed on those who are convicted of offences of this kind. I accept that a fine is usually imposed in conjunction with a period of disqualification, but if a disqualification is not appropriate, it would be a misapplication of sentencing principles to impose a sentence of community work partially in lieu of disqualification.

[29] I am satisfied that a sentence of 120 hours’ community work for a first breath/blood alcohol offence was excessive and that Judge Ryan imposed too long a period  of  community service  because  she treated  it  as  being  a substitution  for

8	R v Crossan [1939] MI106 at 112.

disqualification. In my judgement, a more principled approach would have involved Mr Bool being convicted and fined a substantial sum for his offending. That fine should not be a substitute for disqualification.

Conclusion

[30]    Mr Bool was not driving his vehicle out of necessity.

[31]    There was a special reason for not disqualifying Mr Bool.

[32]	The sentence of community work imposed was clearly excessive. [33]	A substantial fine should have been imposed on Mr Bool.
[34] In the circumstances I would allow the appeal against sentence and quash the sentence of 120 hours’ community work and substitute it for a fine of $800. All other orders made by Judge Ryan remain in force.

D B Collins J

Solicitors:
Crown Solicitor, Auckland for Respondent