RAYNER v NEW ZEALAND POLICE [2018] NZHC 2276

RAYNER v NEW ZEALAND POLICE [2018] NZHC 2276 [30 August 2018]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECRI-2018-463-000063[2018] NZHC 2276BETWEEN KIRSTEN LEE RAYNERAppellantAND NEW ZEALAND POLICERespondentHearing: 29 August 2018Appearances: A R Allerton for the AppellantM S Jenkins for the RespondentJudgment: 30 August 2018JUDGMENT OF WYLIE JThis judgment was delivered by Justice WylieOn 30 August 2018 at 2.30 pmPursuant to r 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Solicitors/counsel:LMC Law, TokoruaCrown Solicitors, RotoruaIntroduction[1] On 3 July 2018, Judge Hollister-Jones, in the District Court at Tokoroa, foundthe appellant, Ms Rayner, guilty of one charge of careless use of a motor vehiclecausing injury contrary to s 38(1) of the Land Transport Act 1998 (the Act).1 On thesame day, the Judge sentenced Ms Rayner to 100 hours of community work anddisqualified her from driving a motor vehicle for a period of six months.2[2] Ms Rayner appeals both the conviction and the sentence, on the ground thatthe Judge erred both in law and in fact.[3] The Crown opposes the appeal.Background facts[4] Sometime between 3.30 pm and 4.00 pm on Monday 18 September 2017,Ms Rayner was driving her Mitsubishi motor vehicle east on State Highway 5 nearTirau.[5] Ms Rayner turned right across the westbound lane to get to her driveway. Sheturned into the path of an oncoming motor vehicle being driven by a Mr Charteris.Mr Charteris' vehicle collided with Ms Rayner's vehicle. Both were extensivelydamaged and Mr Charteris suffered significant injury. He had to be cut from hisvehicle and he was flown to Waikato Hospital. He suffered neck injuries, broken ribsand a bruised spinal cord.[6] In explanation, Ms Rayner stated that she did not see Mr Charteris' vehiclewhen she made her decision to turn, as it was raining heavily and the sky was dark.[7] Mr Charteris' vehicle was grey in colour. He did not have the headlights turnedon at the time of the collision.1 New Zealand Police v Rayner [2018] NZDC 15067.2 New Zealand Police v Rayner [2018] NZDC 15340.The District Court's decisions(a) The conviction decision[8] Judge Hollister-Jones started his oral judgment by setting out the factualbackground. He accepted that "the driving conditions at the time were difficult".3 TheJudge stated that the Crown had to prove beyond reasonable doubt that Ms Rayner'sactions in turning her vehicle across the state highway and failing to see the victim'svehicle "fell below the standard of a reasonably prudent driver".4 He stated that the"only issue for the Court to determine in respect of the charge is whether theprosecution have proved carelessness".5[9] The Judge recorded that as a result of agreement between the prosecution andthe defence, the prosecution evidence proceeded by way of formal statements.6 Hereceived formal statements from Mr Charteris, the police constable who attended thescene, and a Ms Moody, a pharmacist in Putaruru. Ms Rayner read her brief and shewas cross-examined. The formal statements of other defence witnesses – a Dr Stout,who is Ms Rayner's psychiatrist, and a Mr Stedall, an optometrist – were also admittedby consent.[10] The Judge then turned to address a medical issue raised by Ms Rayner.7 At thetime, she was prescribed with medication, clonazepam, at a dose of 0.5 milligrams tobe taken up to twice a day as needed. This medication has side effects, such asdrowsiness and impaired concentration. Dr Stout's evidence was that Ms Rayner wastolerating the medication well and was medication compliant. On the morning of theoffending, Ms Rayner had filled a prescription for the medication at a pharmacy inPutaruru. In error, she was dispensed clonazepam tablets with a dosage of twomilligrams, as opposed to the prescribed 0.5 milligrams. This was not picked up bythe pharmacy at the time. When Ms Rayner returned home, she realised that the tabletsthat had been dispensed to her were a different colour from her normal tablets. Shecalled the pharmacy and spoke to the pharmacist, Ms Moody.3 New Zealand Police v Rayner, above n 1, at [1].4 At [2].5 At [5].6 At [3].7 At [6].[11] The Judge recorded that there was a dispute as to whether Ms Rayner had takenany of the tablets that morning. Ms Rayner gave evidence that she had taken two ofthe tablets, one outside the pharmacy shortly after she received the wrong dosagetablets and the other when she got home. Ms Moody's evidence was that she askedMs Rayner in the course of their telephone conversation if she had taken any of thetwo milligram tablets, and that Ms Rayner stated that she definitely had not done so.[12] Judge Hollister-Jones was satisfied that Ms Moody did ask Ms Rayner whethershe had taken any of the two milligram tablets and that Ms Rayner had told her thatshe had not.8 He noted that the dispensing error was a serious issue for the pharmacywith potential medical and legal implications.9 He also noted Ms Moody's evidencethat she made a contemporaneous note of her conversation with Ms Rayner and thather formal statement was taken from that file note.10[13] The Judge went on to consider what the position would have been onMs Rayner's evidence. He reviewed Dr Stout's evidence and the assumption madeby the doctor that Ms Rayner's ability to make rational decisions about driving wouldhave been impaired to a notable degree if she had taken two of the wrong dosagetablets. He considered this assumption against the facts as he found them andconcluded that there was no material consequence or influence on what occurredbetween 3.30 pm and 4.00 pm as a result of any excess consumption of clonazepam.11[14] The Judge then turned to whether Ms Rayner's decision to turn right across thestate highway was prudent. He accepted, on the basis of the traffic crash report andMs Rayner's evidence, that "the driving conditions were difficult and that as a resultof the downpours, it was difficult to see".12 He concluded as follows:[19] Ms Rayner said that it was difficult to see, so difficult to see thatshe could not see where the edge of the road ended and she had slowed becauseit was so difficult to see and she was worried about the pressure of the driversbehind her. In these very difficult driving conditions on a busy state highway,I am satisfied that a reasonably prudent driver would not have attempted tomake a right-hand turn across the state highway.8 At [10].9 At [10].10 At [10].11 At [13].12 At [18].[15] The Judge also noted that Mr Charteris was driving a dark grey vehicle and didnot have any headlights on.13 He accepted that "[c]learly, Ms Rayner did not see thisvehicle".14 Nevertheless, he concluded:[21] Ms Rayner's evidence is clear that she knew it was difficult to see. She had slowed considerably and this means that her responsibilities at thattime were even greater. This means, as I have found, she should not haveattempted the right-hand turn.Judge Hollister-Jones was, therefore, satisfied that the charge was proved, and heentered the conviction accordingly.15(b) The sentencing decision[16] Judge Hollister-Jones assessed Ms Rayner's level of carelessness "as being atthe lower end of moderate".16 He accepted that she was very remorseful.17 He alsonoted that she has a "reasonably significant driving history with three convictions forcareless use of a motor vehicle with the last one being in 2005".18 He observed thatshe has other historic convictions under the Act for excess breath alcohol and drivingwhile disqualified.19[17] The Judge rejected a submission that there were "special reasons" so directlyconnected to the act of carelessness that otherwise mandatory disqualification was notappropriate under s 81 of the Act.20 He also rejected a submission under s 94 of theAct that he should not disqualify Ms Rayner from driving because of her personalcircumstances, namely her reliance on a licence.21[18] As noted, the Judge imposed an end sentence of 100 hours of community workand disqualification from driving for six months.2213 At [20].14 At [20].15 At [23].16 New Zealand Police v Rayner, above n 2, at [1].17 At [1].18 At [3].19 At [3].20 At [4].21 At [4].22 At [5].Approach on appealAppeals against conviction[19] Pursuant to s 232(2) of the Criminal Procedure Act 2011, an appeal againstconviction must be allowed if the Court is satisfied that:(a) the Judge erred in his assessment of the evidence to such an extent thata miscarriage of justice has occurred; or(b) a miscarriage of justice has occurred for any reason.A miscarriage of justice is any error, irregularity, or occurrence in or in relation to oraffecting the trial that:23(c) has created a real risk that the outcome of the trial was affected; or(d) has resulted in an unfair trial or a trial that was a nullity.[20] The Supreme Court, in Sungsuwan v R, said that a "real risk" is "a reasonablepossibility that a not guilty (or more favourable) verdict might have been delivered ifnothing had gone wrong".24 Not every departure from good practice renders a trialunfair.25 The departure must instead be "so gross, or so persistent, or so prejudicial,or so irremediable" that the Court must quash the decision.26[21] An appeal against conviction proceeds by way of rehearing.27 This Court mustconsider all the matters that were before the trial Judge. Ultimately, the Court mustreach its own decision.23 Criminal Procedure Act 2011, s 232(4).24 Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730 at [110].25 Condon v R [2006] NZSC 62, [2007] 1 NZLR 300 at [78].26 At [78]; citing Randall v R [2002] UKPC 19, [2002] 1 WLR 2237 at [28].27 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].Appeals against sentence[22] Section 250(2) of the Criminal Procedure Act provides that an appellate Courtmust allow an appeal against sentence if it is satisfied that:(a) for any reason, there is an error in the sentence imposed onconviction; and(b) a different sentence should be imposed.In any other case, the Court must dismiss the appeal.28[23] A sentence may be set aside where it is manifestly excessive.29 Whether asentence is manifestly excessive depends on the end sentence, not the process bywhich the sentence was reached. The Court will not intervene where the sentence iswithin range. But, if the Court determines that the sentence imposed is manifestlyexcessive, it will form its own view of the appropriate sentence.30Submissions[24] As to the conviction decision, Mr Allerton, for Ms Rayner, submitted thatJudge Hollister-Jones erred in law by applying the incorrect legal test. He submittedthat the Judge identified the test for carelessness as the decision to turn right acrossthe path of an oncoming vehicle. He submitted that the correct legal test forcarelessness for a change in direction is that of "failing to keep a proper lookout".Mr Allerton further submitted that the Judge erred by finding that, contrary to theexpert medical evidence, no material consequence flowed from the incorrect dosageof clonazepam being consumed prior to the accident. He also submitted that the Judgeerred by putting the evidence of the optometrist, Mr Stedall, as to the environmentalconditions at the time to one side.[25] Mr Jenkins, for the Crown, submitted that the Judge applied the correct legaltest. He argued that Ms Rayner seeks to unduly narrow the applicable test and further28 Section 250(3).29 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [33].30 Tutakangahau v R, above n 29, at [30].submitted that the factual findings challenged by Ms Rayner were open to the Judgeon the available evidence.[26] As to the sentencing decision, Mr Allerton submitted that Judge Hollister-Joneserred in fact and law in declining Ms Rayner's applications pursuant to ss 81 and 94of the Act. Mr Jenkins, on the other hand, submitted that it cannot be said that theJudge erred in imposing the sentence noted above.AnalysisCarelessness[27] Section 8 of the Act provides that a person may not drive a vehicle carelesslyor without reasonable consideration for other persons. Under s 38(1) of the Act, aperson who operates a vehicle on a road carelessly or without reasonable considerationfor other persons, and by that act or omission causes injury to or the death of anotherperson, commits an offence.[28] Whether a person was driving carelessly is a question of fact. The key issuefor a finding of liability under s 38(1) of the Act is whether the defendant exercisedthe degree of care and attention that a reasonable and prudent driver would haveexercised in the circumstances.31 As Mander J recently explained:32[12] It is not necessary in order to constitute carelessness for there tohave been negligence, rather it is a failure to exercise the degree of care andattention that a reasonable and prudent driver would exercise in looking afterhis or her own safety. To make such a determination the Court must haveregard to the actions of each of the motorists involved.(Citations omitted)[29] The standard of care is objective.33 It is not related to an individual driver'sproficiency or experience.3431 Huang v Police [2016] NZHC 1271 at [12]; citing Simpson v Peat [1952] 2 QB 24 at 28. See alsoLove v Police [2012] NZHC 2952 at [22].32 Huang v Police, above n 31.33 At [12].34 Love v Police, above n 31 at [22]. See also Brookers Law of Transportation (online looseleaf ed,Brookers) at [LT8.05].[30] As noted, the Judge considered that the prosecution had to prove thatMs Rayner's action in turning her vehicle across the state highway and failing to seeMr Charteris' vehicle fell below the standard of a reasonably prudent driver.[31] Mr Allerton accepted that this statement was correct, but he went on to arguethat the actus reus of the prosecutor's case against Ms Rayner was that she failed tokeep a proper lookout when she turned across the state highway.[32] I am satisfied that the Judge identified, and applied, the correct legal test. Theoverriding issue in this case was whether Ms Rayner exercised the degree of care andattention that a reasonable and prudent driver would have exercised in thecircumstances when she turned across the state highway. It was not, as Mr Allertonsuggested, whether Ms Rayner failed to keep a proper lookout. The charge was oneof careless use – not some hypothetical offence of failing to keep a proper lookout35 –and the duty to keep a proper lookout is a fundamental obligation on all road users.36[33] Judge Hollister-Jones recorded that the accident occurred on "a busy statehighway with a 100 kilometre per hour speed limit and no significant shoulder".37 Henoted that Ms Rayner was making a right-hand turn from the state highway into herdriveway. He accepted that as a result of the weather at the time, driving conditionswere difficult and that it was difficult to see.38[34] These matters were relevant. I also accept that Mr Charteris' failure to turn onhis lights was relevant. It made it more difficult for Ms Rayner to see his vehicle,particularly given the weather conditions. But, given the conditions at the time, areasonable and prudent driver should have taken extra care and made certain that novehicle was coming the other way before making a turn across the state highway.[35] Ms Rayner failed to do this. She knew she was driving in difficult conditions.It was her own evidence that it was difficult to see. Indeed, she said that she could notsee the edge of the road. She knew she was on a busy state highway. She said that35 R v Slater [1997] 1 NZLR 211 (CA) at 216.36 King-Turner v Police HC Nelson AP5/99, 6 July 1999.37 New Zealand Police v Rayner, above n 1, at [14].38 At [18].she was worried about traffic approaching from behind her. On a busy state highway,it is always likely that vehicles will be coming from the opposing direction. She wasintending to turn across oncoming traffic. Given the conditions at the time, essentiallyMs Rayner took the chance that there were no vehicles coming from the oppositedirection when she turned across the highway. Her actions in taking that chance fallbelow the standards of a reasonable and prudent driver.[36] The law is quite clear. A driver whose vision is affected must take allreasonable steps to avoid a collision with other persons or objects lawfully on the road,even if this involves stopping altogether, and a driver who fails to take appropriatesteps can be convicted of careless driving, or, if the degree of fault is sufficiently great,of reckless or dangerous driving.39 By way of example, in R v Pegler, the appellantargued that he should not have been convicted for careless driving causing injury onthe basis of sun strike.40 He had turned right out of a supermarket carpark, at lowspeed, and hit two pedestrians crossing the road. He claimed that his vision wasobscured at the time by the glare of the sun and that he did not see the pedestrians.The Court of Appeal held as follows:[21] The appellant's argument - that it is consistent with the exercise ofreasonable care to drive on the road in the immediate vicinity of a shoppingcentre where pedestrians are to be expected without knowing precisely thatthe way is clear - is simply untenable To risk bringing the power and weightof a motor vehicle into collision with a pedestrian, when there is the option ofsimply stopping or indeed remaining stationary and lowering the sun visorbefore moving forward, is wholly unacceptable.[37] In my judgment, it cannot be said that Judge Hollister-Jones erred in stating,that in the circumstances of this case as he found them to be, "a reasonably prudentdriver would not have attempted to make a right-hand turn across the state highway".41Medication[38] As noted, Ms Rayner put in evidence the mistake by the pharmacy in Putaruruin prescribing to her pills of the wrong dosage. Mr Allerton submitted – by reference39 Strawbridge v Mason [1939] NZLR 877 (CA) at 897-898; Police v Robertson (1945) 4 MCD 407;Police v James (1951) 7 MCD 384.40 R v Pegler CA214/03, 10 November 2003. See also Gregory-Hunt v Police HC Auckland CRI-2004-404-36, 27 May 2004.41 New Zealand Police v Rayner, above n 1, at [19].to s 64 of the Act – that this explained Ms Rayner's actions. He accepted that she wasnot charged with "drugged" driving under s 62 of the Act, but he argued that theprinciple and spirit of the legislation in respect of defences involving the impairmentthrough the inadvertent consumption of drugs, should remain.[39] Mr Jenkins argued that s 64 of the Act applies to specific and identifiableoffences, and that it does not apply to offending under s 38(1). He argued that ifParliament had intended the defence to apply, it would have said so. In any event, heargued that Judge Hollister-Jones addressed the claim of impairment advanced byMs Rayner, and that he was firm in his conclusion that the medication, if taken, hadno material consequence or influence on her careless use of the motor vehicle.[40] Section 64(1A) of the Act provides as follows:(1A) It is a defence to proceedings for an offence against section 57A(1) or62(1B) if the court is satisfied that the person has consumed therelevant qualifying drug—(a) in accordance with—(i) a current and valid prescription written for that personby a health practitioner; and(ii) any instructions from a health practitioner or from themanufacturer of the qualifying drug; or(b) because it was administered by a health practitioner, providedthat the person complied with the instructions (if any) that thehealth practitioner has given.[41] I agree with Mr Jenkins that the section does not apply to the offending allegedin this case under s 38(1) of the Act. I also agree with him that in any event the Judgeaddressed the issue.[42] As the Judge noted, in her statement, Ms Moody said that she asked Ms Raynerwhether she had taken any of the tablets of the wrong dosage. Ms Moody said thatMs Rayner's reply was that "she definitely had not". Ms Moody documented thephone call on a file note after the call, as well as filling out a full three-page incidentreport the next day. As the Judge noted:[10] This was a serious issue for the pharmacy with potential medicaland legal implications and the pharmacist says that she made a note of thisconversation in the electronic patient file and her evidence is drawn from thatnote.He queried why Ms Rayner would lie to the pharmacist when she was otherwise actingin a "very conscientious way" that day; he considered that Ms Rayner would havedisclosed that information if she had taken any.42[43] Judge Hollister-Jones recorded that he was satisfied that the pharmacist,Ms Moody, had asked Ms Rayner whether she had taken any of the wrong dosagetablets and that Ms Rayner told her that she had not done so.43[44] The Judge faced difficulties in dealing with this issue. Ms Moody was notcalled for cross-examination. Her formal statement came in by consent. However,unfortunately, although Ms Rayner was cross-examined, she was not asked about herassertion in her written brief of evidence read in Court that she had taken two of thewrong dosage pills – one shortly after she picked up the prescription from thepharmacy and another a little later when she got home. This left the Judge in a difficultposition; neither Ms Moody nor Ms Rayner had been challenged as to their conflictingassertions.[45] Perhaps for this reason, the Judge went on to consider whether it would havemade any difference had Ms Rayner taken the wrong dosage pills as she asserted.[46] The Judge summarised the evidence of Dr Stout:[12] Dr Stout says that it is difficult to accurately describe the extent towhich a person would become impaired on four milligrams of clonazepam,but she would assume that after a sudden increase from one to four milligrams,a person would experience noticeable drowsiness and other effects, such asimpaired concentration and co-ordination. That seems a reasonable statement.Then the doctor says that the onset of clonazepam can take up to an hour anda person would become aware of impairment within an hour. The doctor saysit is difficult to accurately comment on whether a person would be able tomake rational decisions to drive, but she says she would assume that makingrational decisions about driving would be impaired to a notable degree.However, that statement of opinion has to be considered against the eventsthat day.42 At [11].43 At [10].[47] The Judge then set out the evidence of Ms Rayner's behaviour post the allegedtaking of the tablets.44 He noted that during the period between taking the medicationand the accident, Ms Rayner:45(a) had a sleep (this was not unusual – she was working long hours on anearby farm);(b) drove 25 minutes to the farm, finished the milking and attended to thecalves;(c) drove 25 minutes back to her home; and(d) made a series of decisions as she approached her driveway.The Judge considered that none of these actions suggested that Ms Rayner was subjectto cognitive impairment at the time.[48] In any event, the Judge found that there was no material consequence orinfluence on what occurred as a result of the excess consumption of clonazepam.46[49] The Judge did not make a definitive finding the one way or the other as towhether Ms Rayner had taken the incorrect dosage of clonazepam. Rather, his findingwas that there was no material consequence on what occurred as a result of any excessconsumption of clonazepam. This finding was clearly open on the evidence.[50] To an extent, Ms Rayner's evidence that she took two pills prior to workingand driving on the day in question, is a two-edged sword. The evidence was that thepills were labelled with a warning recording that they may cause sleepiness. IfMs Rayner took four times her prescribed dosage on the day in question, and wasaware of that as her evidence acknowledges, then one would have thought that sheshould not have driven at all.47 The Judge referred to this briefly. He noted that the44 At [13].45 At [13].46 At [13].47 See Hoeta v Ministry of Transport HC Auckland AP29/91, 19 April 1991.label on the bottle would have created a greater obligation upon Ms Rayner when sheknew she had effectively taken four times the dose.48 He went on to observe, however,that on the facts, there was no material consequence or influence on what occurred asa result of the excess consumption of clonazepam.49Driving conditions[51] At trial, Ms Rayner called evidence from Mr Stedall, an optometristspecialising in low light vision rehabilitation. As Judge Hollister-Jones explained:[21] Mr Stedall tested Ms Rayner's eyesight and found it to be normal.Mr Stedall's evidence is to the effect that visibility can be reduced in heavilyovercast days creating dusk-like conditions in which there is insufficientillumination or contrast and, as a result, the human eye is unable to see objects.This means that in these conditions, it is almost impossible to distinguishvehicles. Obviously, I accept that Mr Stedall has the requisite expertise toprovide this evidence. However, Ms Rayner's evidence is clear that she knewit was difficult to see. She knew that because she could not see the edge of theroad and where the drainage ditch was. She had slowed considerably and thismeans that her responsibilities at that time were even greater. This means, asI have found, she should not have attempted the right-hand turn.[52] I agree with Mr Jenkins that Mr Stedall's evidence was rather beside the point.The Judge accepted Ms Rayner's evidence about the poor driving conditions at thetime, even though this evidence was inconsistent with Mr Charteris' evidence of theprevailing conditions. On the evidence which the Judge accepted, it was Ms Rayner'sact of trying to cross the state highway which was careless – not any difficulty inseeing the oncoming vehicle. On the Judge's findings, the conditions were such thatMs Rayner should not have chanced her arm and attempted to cross the road at all.[53] I am satisfied that the Judge did not err. The Judge was entitled to accept onthe basis of the traffic crash report and Ms Rayner's evidence that it was extremelydifficult to see.50 He was equally entitled to draw the conclusion that in thosecircumstances, Ms Rayner's decision to turn across the state highway was careless.48 New Zealand Police v Rayner, above n 1, at [13].49 At [13].50 At [18].Sentence appeal[54] Pursuant to s 38(2) of the Act, if a person is convicted of an offence against s38(1), he or she is exposed to a maximum penalty of imprisonment for a term notexceeding three months, or a fine not exceeding $4,500. In addition, the Court mustorder that he or she be disqualified from holding or obtaining a driver's licence for sixmonths or more. The imposition of a mandatory disqualification under the subsectionis subject, however, to s 81.51Section 81[55] Section 81 of the Act provides as follows:(1) If any provision of this Act (other than section 63) requires a court todisqualify a person from holding or obtaining a driver licence ortransport service licence for a period not less than the specifiedminimum period, the court must order that the person be disqualifiedaccordingly unless for special reasons relating to the offence it thinksfit to order otherwise.(2) Nothing in any provision referred to in subsection (1) or in section 65restricts any other duty or power of the court to disqualify a personfrom holding or obtaining a driver licence or transport service licenceor to impose any other penalty.(3) This section is subject to section 94 (which relates to community-based sentences).[56] Judge Hollister-Jones found that there were no "special reasons that were sodirectly connected to the act of carelessness that means that the strict criteria under s81 are made out".52[57] Mr Allerton asserted that there were special reasons relating to the offence,namely the medication issue and the very bad driving conditions at the time.[58] A "special reason" has been defined as:53 a mitigating or extenuating circumstance, not amounting in law to [a]defence to the charge, yet directly connected with the commission of the51 Section 38(3).52 New Zealand Police v Rayner, above n 2, at [4].53 R v Crossen [1939] NI 106 at 112.offence, and one which the Court ought properly to take into account whenimposing punishment.As was explained in Anderson v Police:54[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 compelling natureto justify a departure from the usual consequences. The special reason mustnot conflict with the essential purpose of the statutory provision.(Citations omitted)[59] Given Judge Hollister-Jones' finding that any taking of the clonazepam had nomaterial influence on Ms Rayner's driving, it cannot be said that this was a specialreason relating to the offending. It was not directly related to the commission of theoffence.[60] As for the driving conditions at the time, the Judge took those into account. AsI have noted, he effectively concluded that they meant that additional caution wasrequired and that Ms Rayner failed to exercise that extra caution. The drivingconditions went to Ms Rayner's carelessness and were not of themselves a specialreason relating to the offence which justified departing from the requirement formandatory disqualification in the event of a conviction under s 38.Section 94[61] Section 94(1) of the Act provides:(1) This section applies if—(a) the offender has previously been ordered on conviction for anoffence to be disqualified from holding or obtaining a driverlicence; and(b) the court, having regard to—(i) the circumstances of the case and of the offender; and54 Anderson v Police [2016] NZHC 942.(ii) the effectiveness or otherwise of a previous order ofdisqualification made in respect of the offender; and(iii) the likely effect on the offender of a further order ofdisqualification; and(iv) the interests of the public,—considers that it would be inappropriate to order that theoffender be disqualified from holding or obtaining a driverlicence; and(c) the court considers that it would be appropriate to sentencethe offender to a community-based sentence in accordancewith Part 2 of the Sentencing Act 2002.[62] Judge Hollister-Jones stated:55[4] Section 94 exists to provide a community-based sentence fordefendants who are on a cycle of driving offending in repeat disqualificationsand is essentially a circuit breaker, whereas you have not offended against theLand Transport Act for some time. The provisions of s 94 are not applicablein this situation.[63] In Wilson v Police, Dobson J stated:56[12] Section 94 should only justify a variation from the norm where thepersonal circumstances of the offender, and in particular the rehabilitativeprospects, justify affording the offender an opportunity to break the cycle ofcircumstances contributing to the recidivist offending.[64] Mr Allerton submitted that the Judge erred in declining to apply s 94 and thathe failed to have regard to the wide application of the section. Mr Jenkins wasprepared to accept that the wider approach to the application of s 94 applies.57 Henevertheless argued that the section did not apply in the circumstances of this case.[65] Ms Rayner has a number of previous driving related convictions commencingin the early 1990s. None of her convictions are particularly recent, however. The lastwere in 2007. Moreover, her previous offending is largely different in character. Herprior convictions relate almost entirely to driving with excess breath alcohol or drivingwhilst disqualified. She has three prior convictions for careless driving – one in 1991,one in 1996 and one in 2005. I cannot see that there was a cycle of recidivist offending55 New Zealand Police v Rayner, above n 2.56 Wilson v Police [2014] NZHC 3028.57 As suggested by Woodhouse J in Beeston v Police [2012] NZHC 1064 at [24].to break. Nor is there anything to suggest that Ms Rayner has any relevantrehabilitative prospects. The issue of recidivist driving related offending was not inissue given Ms Rayner's criminal history.[66] This is nothing to persuade me that the Judge erred in rejecting the applicationunder s 94.Conclusion[67] The appeals against both conviction and sentence are dismissed.___________________________Wylie J