CAPPER v NEW ZEALAND POLICE [2018] NZHC 889

CAPPER v NEW ZEALAND POLICE [2018] NZHC 889 [1 May 2018]IN THE HIGH COURT OF NEW ZEALANDPALMERSTON NORTH REGISTRYI TE KŌTI MATUA O AOTEAROATE PAPAIŌEA ROHECRI-2018-454-5[2018] NZHC 889ANDREW JAMES CAPPERvNEW ZEALAND POLICEHearing via AVL: 1 May 2018Counsel: K Campbell for AppellantK van der Plas for CrownOral Judgment: 1 May 2018ORAL JUDGMENT OF CHURCHMAN JIntroduction[1] Mr Capper has pleaded guilty to one charge of driving a motor vehicle whilethe proportion of alcohol in his breath exceeded 400 micrograms.1 On 1 March 2018,in the Levin District Court, Judge Large sentenced Mr Capper to 100 hours'community work and disqualified him from driving for a period of 12 months and oneday following his conviction on this offence.2[2] Mr Capper appeals his sentence on the grounds that the Judge erred indeclining to find special reasons under s 81 of the Land Transport Act 1998 ("the1 Land Transport Act 1998, s 56(1). As this was his third drink-driving offence, the maximumpenalty was two years' imprisonment or a fine of $6,000 and the Court had to order he bedisqualified from holding a driver licence for more than one year.2 New Zealand Police v Capper [2018] NZDC 4623 [Capper].LTA") to relieve him from the otherwise mandatory minimum disqualification periodof more than one year.[3] During the course of his oral argument this morning, Mr Campbell forMr Capper, refined the thrust of the appeal which focused on the extent to which theCourt is permitted in assessing whether or not special reasons exist under s 81 to haveregard to the prior convictions of a person such as Mr Capper. His argument was thatit is not a matter which can have regard given to it at this stage of the analysis whichshould be solely confined to the facts of the offending.[4] The Crown has opposed this appeal.Facts[5] The facts of the case are that on 22 November last year, Mr Capper was thedriver of a motor vehicle on Hokio Beach Road in Levin. He had been at the house ofan associate of his, Ms Arnold, when they apparently got into an argument where shethrew a bottle at him and threatened to smash his car. Mr Capper left the house in hiscar as he did not want to leave it there in case Ms Arnold smashed it up further.[6] Ms Arnold contacted the police to advise that Mr Capper had been drinkingand that he was driving. His vehicle was located by a police car near a local takeawayfood store. When Mr Capper returned to his vehicle he drove away, the police officerfollowed him and stopped him. He had driven a distance of 1.6km from Ms Arnold'shouse prior to his apprehension by the police officer.[7] In the roadside testing, Mr Capper returned a breath screening test of over 400.A subsequent breath test analysis gave a reading of 753 micrograms of alcohol perlitre of breath.District Court decision[8] Although this was Mr Capper's third drink-driving charge, Judge Large foundthat, as the last offence occurred on 22 June 2008, this length of time between theoffending allowed him to consider a community-based sentence rather thanimprisonment.[9] However, one of the major, if not the major, issues before Judge Large in termsof sentencing was the special reasons application. The application was based on thefact that the appellant decided he had to remove himself from an address where he hadgot into an argument with Ms Arnold and the need for driving arose from the fact thathis car was at that address and he was fearful that if the car was to remain at the addressit would likely sustain damage at the hands of Ms Arnold.[10] There is no doubt, as Mr Campbell emphasised to the Court this morning, thatthere have been many cases where an apprehension of damage which has beenregarded as legitimate and has provided the basis for a finding of special reasons.[11] The difficulty in this case for Mr Capper is the length that he drove, the distanceof 1.6km before he was ultimately stopped. That is relevant and was influential inJudge Large's finding because he determined that the driving of this length was a muchlonger distance than necessary to remove the vehicle and Mr Capper from such harmas may have been posed by Ms Arnold.[12] In relation to the exercise of the discretion, the Judge also stated that he wasnot prepared to exercise the discretion as sought by Mr Capper's counsel as thereneeded to be a very clear message sent to people who drink and drive, particularlythose with previous convictions, that this was not something that they could do. It wasthis observation that was at the heart of the appeal advanced by Mr Campbell. I willreturn to it subsequently.[13] The Judge also stated that, even if special reasons had been made out, he wouldnot have been prepared to exercise the discretion due to the distance driven. Thismatter was emphasised by Mr van der Plas in his submissions for the Crown.Approach to appeal[14] This appeal is brought under s 250 of the Criminal Procedure Act 2011. Anappeal against sentence is an appeal against a discretion and must be allowed if theCourt is satisfied that, for any reason, there is an intrinsic error in the sentence imposedand a different sentence should be imposed.3 The focus is on the final sentence andwhether that was in the available range, rather than the exact process by which it wasreached.4[15] For appeals against the refusal to impose a lesser disqualification period,pursuant to s 81 of the Act, Collins J held:5A decision not to waive an otherwise mandatory period of disqualificationfrom driving can involve both:(1) an assessment of fact and application of law in determining whether"special reasons" exist; and(2) the exercise of judicial discretion in making an order other than themandatory disqualification.[16] In that case Collins J went on to state that such an appeal is subject to thestandards of appeal articulated by the Supreme Court in Austin, Nichols & Co Inc vStichting Lodestar,6 being that the appellate court must reach its own view on themerits of the appeal, bearing in mind that the appellant bears an onus of satisfying thecourt that it should differ from the decision under appeal.7[17] However, Collins J noted that where an appeal focuses on the way in which adiscretion has been exercised:8[T]he appellant must show that the decision maker:(1) made an error of principle; or(2) failed to consider all relevant matters or took into account irrelevantmatters; or(3) reached a decision that was plainly wrong.3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.4 Ripia v R [2011] NZCA 101 at [5].5 Morgan v Police [2013] NZHC 3431 [Morgan] at [13].6 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103 at [4].7 Morgan, above n 5, at [14].8 At [15]. The approach articulated by Collins J at [13]-[15] was reaffirmed by Wylie J in Andersonv Police [2016] NZHC 942 [Anderson] at [12].[18] Here the argument of Mr Campbell is that the Judge took into account anirrelevant matter.Section 81 of the LTA[19] I will now address s 81 of the Land Transport Act ("LTA").[20] Section 56(4) of the LTA requires the Court to disqualify a defendant fromholding or obtaining a driver licence for more than one year upon conviction fordriving with excess alcohol, if it is a third or subsequent offence.[21] The imposition of a mandatory disqualification is, however, subject to s 81 ofthe LTA, under which the Court is required to make the order for mandatorydisqualification unless "for special reasons relating to the offence it thinks fit to orderotherwise". Those words "relating to the offence" are important.[22] A special reason is defined in the Act as:9A mitigating or extenuating circumstance, not amounting in law to a defenceto the charge, yet directly connected with the commission of the offence, andone which the Court ought properly to take into account when imposingpunishment.[23] In oral argument Mr Campbell advanced the proposition that, based on hisrecent experiences, District Court Judges in the area in which he practises had adoptedsomething tantamount to a policy that the Court could not find special reasons in anysituation where it was a third or subsequent offence. As I explained to him this Courtis only able to address matters directly arising in the appeal before it. He accepted thatJudge Large, in this case, had not articulated such a policy and I must confine myselfto saying if there is any such policy being adopted, then it is clearly not in accordancewith the statute.[24] In the case of Anderson, Wylie J summarised the relevant case law elaboratingon the meaning of special reasons, holding:109 R v Crossen [1939] NI 106 at 112; aff'd Anderson, above n 8, at [14].10 Anderson, above n 8.[15] Special reasons "embrace only factors of particular or exceptionalcharacter". The reasons must arise from the circumstances in which theoffence was committed or the manner of its commission as a whole. Personalcircumstances are not relevant, except to the extent that they influence theevents leading up to the commission of the offence, or a part and parcel of theoffending itself. The special reason must be of a sufficiently compellingnature to justify a departure from the usual consequences. The special reasonmust not conflict with the essential purpose of the statutory provision.[16] A Court will not lightly find that there are special reasons in thealcohol impairment context. Whether reasonable or possible availablealternatives to drink driving have or could have been explored, will often be afactor of considerable significance. When a sudden onset of illness or someother emergency may require an intoxicated person to drive, the decision todo so must nevertheless be objectively reasonable. Where all reasonable orpossible alternatives are not explored, it is unlikely that special reasons willbe found.[25] Barker J in the case of Ministry of Transport v Green, set out how an approachto special reasons under s 81 should proceed:11(a) Whether in law the particular circumstances are capable ofconstituting special reasons;(b) Whether on the facts this is to be regarded as so;(c) Whether the Court should exercise its discretion in whole or in part.Analysis[26] For the appellant in this case, Mr Campbell has submitted that the twoaffidavits filed in relation to the s 81 application satisfied the criteria required for afinding of special reasons under s 81(1) of the Act and, as a matter of law, and saidthere were special reasons under (i) and (ii) of the test set out by Barker J that I havejust referred to. He argued that Mr Capper had proved special reasons on the facts andthat Judge Large was wrong, as a matter of law, to find that the facts did not amountto special reasons. He submitted that finding then wrongly coloured (or influenced)his view of whether he should exercise his discretion under part (iii) of the test set outby Barker J in Green. He contended that Judge Large also wrongly allowed histhinking to be clouded by the fact that the appellant had previous convictions for drinkdriving.12 Mr Campbell therefore submitted that the Court ought to exercise its11 Ministry of Transport v Green (1985) 1 CRNZ 492 at 494.12 See Capper, above n 2, at [11].discretion under s 81 and impose no disqualification or, alternatively, reduce thedisqualification to a period of only six months.[27] Mr van der Plas, for the Crown, submitted the appellant had not indicated anyerror of principle, failure to take account of a relevant matter, or that the decision wasplainly wrong, and he said the appeal should, accordingly, be dismissed. He arguedthat the two possible special reasons on the facts, being that the appellant drove due tothere being a risk of damage to the property and that he was set up by Ms Arnold, wereexpressly referred to by Judge Large in his sentencing notes, indicating that they wereconsidered.13 He noted that Judge Large held that the circumstances did not amountto special reasons, primarily due to the distance that Mr Capper had driven14 and thatwhile Judge Large appeared to accept that a risk of damage to property is capable inlaw of constituting a special reason, he found that the distance the car was driven wasfurther than required to eliminate that risk.[28] In response to questions from the Bench about the argument raised byMr Campbell that the Judge had confused or mis-applied the relevance of the priorconvictions to the finding of special reasons, Mr van der Plas acknowledged that somecomments in [11] of the decision were somewhat confusing but said that in terms ofthe approach set out by Collins J that I have referred to, in Morgan v Police, theassessment or whether or not there had been special reasons was not clouded by anyconsideration of prior convictions, and that it was at the second stage of the test namelythe issue of the exercise of judicial discretion to the extent that Judge Large had regardto prior convictions so that appears to have influenced his decision.[29] Mr van der Plas referred to the case of Blake v Police which, it is submitted,contains a similar fact pattern.15 Again it involved an appellant who had been at theaddress of a female acquaintance, in that case his ex-partner. There was an argument.There was an altercation involving some violence causing injuries, and a threat todamage vehicle which was driven a short distance as a result. Again, the ex-partner13 At [5]-[9].14 At [11]-[12].15 Blake v Police HC Nelson T8/02, 31 May 2002.informed police with the result that Mr Blake was charged. Neazor J found, on theparticular facts of that case, special reasons.[30] Mr van der Plas submitted that this case was distinguishable. He noted thatthere was, in that case, a legitimate and likely risk to property, unlike the present casewhere there was no physical assault or any prior dealing with the car by Ms Arnold.[31] On the facts, I accept Mr van der Plas' submission that the two cases aredistinguishable. Although in this case, Ms Arnold had thrown a bottle at Mr Capper,it did not cause any actual harm, either to Mr Capper or his car. And although therehad been a threat to damage the vehicle, it is my view, as indeed it appears to havebeen the view of Judge Large, that this did not necessitate the driving of the vehicle1.6km.[32] I find applying Barker J's approach in Ministry of Transport v Green, that whilein law the factual circumstances that Mr Capper found himself in were capable ofconstituting special reasons, on the facts of this case they do not amount to such. Therisk he faced of damage to his car was outweighed by the risk he posed to himself andthe general public in deciding to drive a distance of 1.6km while under the influenceof alcohol. There were alternatives available to him such as calling a friend or indeedcalling the police to resolve the dispute, or at the very least simply driving his cararound the corner.[33] While it would have been preferable for Judge Large not to have created theimpression that his decision as to whether or not special reasons were established wassomething that had included, or was influenced by the fact that Mr Capper had twoprior convictions, I am satisfied that that was not the fundamental reason for thedecision. As Judge Large noted in [12] even if he had found special reasons had beenmade out, he would not have exercised the discretion. Again, the critical factor as faras the Judge was concerned was the distance that was driven.Conclusion[34] Therefore, I decline to allow the appeal. I am, as was Judge Large, of the viewthat in these circumstances, special reasons have not been made out, and the appeal isdismissed.Churchman JSolicitors:Cooper Campbell Law, Palmerston North for AppellantBVA Law, Palmerston North for Crown