MITCHELL v NEW ZEALAND POLICE [2021] NZHC 1572

MITCHELL v NEW ZEALAND POLICE [2021] NZHC 1572 [29 June 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI 2021-404-208[2021] NZHC 1572BETWEEN NICHOLAS JAMES MITCHELLAppellantAND NEW ZEALAND POLICERespondentHearing: 28 June 2021Appearances: L Lai for the AppellantW Fotherby and P Patanasiri for the RespondentJudgment: 29 June 2021JUDGMENT OF CAMPBELL JThis judgment was delivered by me on 29 June 2021 at 2:30 pmRegistrar/Deputy Registrar[1] Mr Mitchell pleaded guilty to a charge of driving with excess breath alcohol1and a charge of careless driving.2 On the excess breath alcohol charge, Judge S BonnarQC fined Mr Mitchell $750 and ordered an alcohol interlock sentence under s 65ACof the Land Transport Act 1998 (the Act). The general effect of that sentence was thatMr Mitchell was disqualified from driving for 28 days, after which he was permittedto drive only if he had an alcohol interlock device fitted to the vehicle he was driving.On the careless driving charge, Mr Mitchell was convicted and discharged.3[2] For the excess breath alcohol charge, Mr Mitchell submitted to the Judge thatthere were "special reasons" relating to the offence such that the Judge should exercisethe discretion in s 81 of the Act not to impose disqualification. The Judge held therewere no special reasons that triggered s 81. Mr Mitchell appeals that decision.The offending[3] At about 11.42 pm on 17 July 2020, Mr Mitchell was driving a car on HukanuiCrescent in Ponsonby. He rounded a corner and crashed into the back of a stationarycar. The crash awoke nearby residents. Police were called. When they arrived, MrMitchell was found walking away from the car. He was spoken to by Police. Heexhibited signs of recent alcohol intake. He admitted drinking prior to driving. Anevidential breath test established Mr Mitchell's breath alcohol level was 854micrograms of alcohol per litre of breath. Mr Mitchell told the Police he had just comefrom a friend's party on the North Shore.Basis of submission that court not order disqualification[4] At sentencing, counsel for Mr Mitchell submitted the Court should, under s 81,not order disqualification. Section 81 provides, in part:81 Mandatory disqualification: court's discretion if special reasonsrelating to offence(1) If any provision of this Act (other than section 63) requires a court todisqualify a person from holding or obtaining a driver licence or1 Land Transport Act 1998, s 56(1). Maximum penalty: three months' imprisonment or a fine notexceeding $4,500 and disqualification for six months or more.2 Land Transport Act 1998, s 37. Maximum penalty: fine not exceeding $3,000.3 Police v Mitchell [2021] NZDC 9046.transport 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.[5] Mr Mitchell made an affidavit to support his submission under s 81. In theaffidavit he explained that in adulthood he was diagnosed with late autoimmunediabetes. A letter from his doctor said this was an uncommon form of diabetes thatwas difficult to manage, and that with Mr Mitchell's current form of short-actinginsulin his blood sugars can often "yo-yo and be potentially dangerous".[6] In his affidavit Mr Mitchell said that when his blood sugar level spikes he isoften unable to think clearly. To address this, he uses a short-acting insulin. On thenight of the offending he attended a party at Northcote Point. He said he consumedabout six drinks. Mr Mitchell said he had intended to stay at a friend's home nearby.However, he then realised he had run out of insulin. His blood level spiked up, and hesaid he had "no choice" but to drive home to retrieve his insulin and bring his bloodlevels back down.[7] Mr Mitchell said he briefly considered other options such as calling for an Uberor a taxi. However, because it was late at night and he wanted to bring his blood sugarlevel down as soon as possible he did not think those options were plausible. He saidhe was conscious of the fact that he could be hospitalised if he did not address hisblood sugar levels. There were also no sober drivers at the party. He therefore choseto drive to his home in Sunnyvale (which is in west Auckland).District Court decision[8] Judge Bonnar noted Mr Mitchell's explanation for his conduct. He said thatMr Mitchell's breath alcohol reading was very high, some three and a half times thelegal limit. He observed that Mr Mitchell had not been released by Police until about1.30 am after the offending, and that Mr Mitchell had not at any time mentioned toPolice that he was lacking insulin or that he had driven because of a medicalemergency (despite telling Police that he had come from a party and had beendrinking).[9] The Judge referred to some decisions on s 81 in the alcohol impairmentcontext. He said that whether reasonable or possible available alternatives to drinkdriving have or could have been explored will often be a factor of considerablesignificance. When a sudden onset of illness or some other emergency may requirean intoxicated person to drive, "the decision to do so must nevertheless be objectivelyreasonable. Where all reasonable or possible alternatives are not explored it is unlikelythat special reasons will be found."4[10] Even allowing for Mr Mitchell's medical condition, the Judge did not considerMr Mitchell's actions were objectively reasonable. Mr Mitchell was in NorthcotePoint, a central suburb of Auckland. There were readily available alternatives todriving, such as taxi services or Uber drivers. Mr Mitchell's decision to drive was, onhis own evidence, a product of some rational thought. The Judge was not satisfiedthat Mr Mitchell's decision-making process was objectively reasonable in all thecircumstances. There were no special reasons relating to the offence which justifiednot making an order for disqualification.5Submissions on appeal[11] On behalf of Mr Mitchell, Mr Lai submitted that the Judge did not givesufficient weight to the uncommon and difficult to manage medical condition fromwhich Mr Mitchell suffers. Given those circumstances, it was objectively reasonablefor Mr Mitchell, having briefly explored available alternatives, to decide to drivehome. While Mr Lai accepted that Northcote Point is not a remote area, he noted it isa suburban area, and there would have been some delay in waiting for a taxi or an Uberservice. This made Mr Mitchell's decision to drive objectively reasonable.[12] Mr Lai referred me to Williams v Police, in which Lang J cautioned againstusing hindsight to "place an extremely high standard on an offender who has made adecision that was forced upon him or her under circumstances of pressure".6 Mr Laisubmitted that the Judge had assessed Mr Mitchell's decision-making using hindsight,4 At [19].5 At [21].6 Williams v Police, CRI-2007-488-000068, 12 December 2007.by taking into account that Mr Mitchell did not become seriously ill while in Policecustody.[13] Mr Patanasiri delivered the oral submissions for the Police. He submitted theJudge was right to find no special reasons under s 81. Mr Mitchell had not exploredreasonable alternatives that were open to him: a taxi or ride-share service, or attendinga nearby emergency medical centre to address his blood sugar levels. Additionally, hesubmitted that even if there were special reasons, the discretion under s 81 should notbe exercised, given Mr Mitchell's high breath alcohol reading and that he had collidedwith a stationary car.Decision[14] One of the cases on which Judge Bonnar relied (and which both parties citedto me) was Anderson v Police. Wylie J considered what might constitute "specialreasons" under s 81 which warrant not imposing a period of disqualification. He said:7[15] Special reasons "embrace only factors of particular or exceptionalcharacter". The special reason must be of a sufficiently compelling natureto justify a departure from the usual consequences. [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 importance. 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.[21] Whether reasonable or possible alternatives to drink driving have beenfully explored goes to the issue of whether or not there are special reasonspursuant to s 81. [15] I am of the clear view that Mr Mitchell's decision to drive was not objectivelyreasonable. This is because Mr Mitchell did not explore all reasonable or possiblealternatives to his driving. The obvious and reasonable alternative was to call for ataxi or an Uber to take him home. Mr Mitchell deposed that he "briefly considered"7 Anderson v Police [2016] NZHC 942.those options, but because he wanted to get his blood sugar level down as quickly aspossible, he did not think those options were plausible. Mr Mitchell did not call eithera taxi or an Uber, so he had no reasonable basis for making any assumption about anydelay that might have occurred with either service. His decision not to use thoseoptions, in the absence of any evidence that there would have been any undue delaywith them, was not reasonable. This is very different from Williams v Police, wherethere was evidence of a considerable delay in any available taxi service.[16] Another alternative that Mr Mitchell could have explored was to call for a taxior Uber to take him to a nearby medical centre. There are 24-hour medical centreswithin a little over three kilometres of Northcote Point, whereas Mr Mitchell's homein Sunnyvale is about 24 kilometres away. Mr Mitchell says nothing about whetherhe considered that option.[17] Moreover, the reasonableness of those alternatives needs to be assessed in lightof the route that Mr Mitchell chose to drive. Despite saying that he wanted to bringhis blood sugar level down as quickly as possible, Mr Mitchell did not drive on whatwould usually be the quickest route to his home in Sunnyvale. The quickest routewould have involved Mr Mitchell remaining on the motorway system through centralAuckland and then on to the north western motorway. Instead, Mr Mitchell appearsto have left the motorway after crossing the Harbour Bridge, and travelled throughPonsonby. Mr Mitchell did not provide any explanation for that.[18] For these reasons I agree with Judge Bonnar that Mr Mitchell's decision todrive was not objectively reasonable, so that there were no special reasons under s 81.Result[19] The appeal is dismissed.______________________Campbell J