A v Police HC Auckland CRI-2008-404-245
[2009] NZHC 2167
•3 December 2009
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2008-404-245
CRI-2009-404-264
A
M
Appellants
v
NEW ZEALAND POLICE
Respondent
Hearing: 1 December 2009
Appearances: Mr J Soondram and Mr Andrews for Appellants
Ms A Longdill for Respondent
Judgment: 3 December 2009 at 4.50 pm
JUDGMENT OF LANG J [on appeals against sentence]
This judgment was delivered by me on 3 December 2009 at 4.50 pm, pursuant to Rule
11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Crown Solicitor, Auckland
Counsel:
Mr C Comeskey, Auckland
Date…………..
A AND ANOR V NEW ZEALAND POLICE HC AK CRI-2008-404-245 3 December 2009
[1] When a person is convicted of driving with excess or blood alcohol, the Land Transport Act 1998 ordinarily requires the sentencing Judge to disqualify the offender from holding or obtaining a driver licence for a mandatory specified period. In certain circumstances, however, the Act permits the Judge not to impose that period of disqualification.
[2] One of these circumstances is where the offender fulfils the criteria set out in s 94 of the Act. In that situation the Judge may impose a community-based sentence on the offender instead of a period of disqualification.
[3] Both of these appeals are from determinations of Judges in the District Court that they did not have the necessary jurisdiction to impose a community-based sentence under s 94. Both Judges also concluded that, even if the necessary jurisdiction had existed, it was inappropriate in the circumstances for community- based sentences to be imposed on the appellants.
[4] The appellants contend that the Judges erred in determining that jurisdiction to impose a community-based sentence did not exist. They also argue that their circumstances were such that they met the criteria specified in s 94. As a result, they submit that this Court should quash the periods of disqualification imposed in the District Court and substitute community-based sentences in their place.
The facts
[5] The facts in each case were entirely unremarkable.
Mr M
[6] Mr M was stopped at a compulsory breath test checkpoint. When the police carried out the prescribed breath test procedures Mr M ’s breath was found to contain 780 micrograms of alcohol per litre of breath.
[7] Mr M had previous convictions for driving with excess breath and blood alcohol. In 1980 he was convicted of driving with excess blood alcohol. On that occasion he was fined and disqualified from driving for a period of six months.
[8] On 8 February 1984 he was convicted on a charge of carelessly using a motor vehicle and was fined and disqualified from driving for six months. On 23 March
2007 he was convicted of driving with excess blood alcohol. On that occasion he was fined, ordered to pay reparation and disqualified from driving for six months.
[9] As a result of his previous convictions Mr M was liable in relation to the present offending to a term of imprisonment and a minimum period of disqualification of 12 months.
Mr A
[10] Mr A faced a charge of driving with excess blood alcohol as a result of an incident that occurred in the early hours of Saturday 17 January 2009. At that time he was the driver of a motor vehicle that was travelling east on Cryer’s Road, East Tamaki. Police officers observed his vehicle crossing the centre line of the road. When they stopped the vehicle they spoke to Mr A and found that he exhibited signs of recent alcohol intake. After the breath testing procedures proved positive, Mr A exercised his right to provide a sample of his blood for analysis. This showed that Mr A ’s blood contained 143 milligrams of alcohol per 100 millilitres of blood.
[11] On 4 November 1999 Mr A had been convicted of driving with excess blood alcohol. On that occasion he was fined and disqualified from driving for three months. On 3 August 2005 he was convicted again for driving with excess breath alcohol. Once again he was fined and disqualified from driving, this time for a period of six months.
[12] The present offending left Mr A liable to a fine and a minimum period of disqualification of eight months.
The legislation
[13] Section 94 of the Act relevantly provides as follows:
94 Substitution of community-based sentences
(1) This section applies if—
(a) The offender has previously been ordered on conviction for an offence to be disqualified from holding or obtaining a driver licence; and
(b) The court, having regard to—
(i) The circumstances of the case and of the offender; and
(ii) The effectiveness or otherwise of a previous order of disqualification made in respect of the offender; and
(iii) The likely effect on the offender of a further order of disqualification; and
(iv) The interests of the public,—
considers that it would be inappropriate to order that the offender be disqualified from holding or obtaining a driver licence; and
(c)The court considers that it would be appropriate to sentence the offender to a community-based sentence in accordance with Part 2 of the Sentencing Act 2002.
(2)Despite any provision of this Act that requires a court (in the absence of special reasons relating to the offence) to order a person convicted of an offence to be disqualified from holding or obtaining a driver licence, the court may instead make an order referred to in subsection (3) if this section applies.
(3)If the court sentencing an offender determines under this section not to make an order of disqualification,—
(a) The court must impose a community-based sentence on the offender; and
(b) The imposition of such a sentence does not limit or affect the power of the court to impose any other sentence for the offence that, in accordance with the provisions of the [Sentencing Act
2002], it may impose in addition to the community-based sentence; and
(c) In determining the appropriate sentence to be imposed on the offender in respect of the offence, the court must take into account the gravity of the offence and the fact that the offender would otherwise have been liable to disqualification from holding or obtaining a driver licence.
(3A)For the purposes of subsection (3)(a), the court may impose a sentence of supervision or intensive supervision as a community-based sentence if—
(a) that sentence is appropriate; and
(b) a suitable programme is available; and
(c) the offender attends a suitable programme. (4) This section does not apply if—
(a) section 63 or section 65 applies; or
(b) the offender is prohibited from applying for a limited licence under section 103(2)(a), (b), or (d).
[14] Broken down into its components, the effect of the section for present purposes can be summarised as follows:
(a) It permits the sentencing Judge to impose a community-based sentence instead of the otherwise mandatory period of disqualification.
(b) An offender will only be eligible for such a sentence if he or she has previously been the subject of an order for disqualification.
(c) An offender will not be eligible for a community-based sentence if s 63 or 65 applies, or if s 103(2)(a), (b) or (d) operates to prohibit such a sentence being imposed.
(d) In determining whether to impose a community-based sentence the Court must consider whether it would be inappropriate to make an order for disqualification having regard to:
(i) The circumstances of the case and of the offender; and
(ii) The effectiveness or otherwise of a previous order of disqualification made in respect of the offender; and
(iii) The likely effect on the offender of a further order of disqualification; and
(iv) The interests of the public,—
(e) The Court must also be satisfied that it would be appropriate to impose a community-based sentence having regard to Part 2 of the Sentencing Act 2002.
The issues
[15] It is common ground that both Mr Matai and Mr A had been subject to earlier orders for disqualification as required by s 94(1)(a). Counsel also agreed that neither s 63 nor s 65 applied. As a result, the only remaining jurisdictional bar to the operation of the section would be if the appellants were prohibited from applying for a limited licence under s 103(2)(a), (b) or (d) of the Act.
[16] Further, it is common ground that s 103(2)(a) and (b) did not prevent either appellant from obtaining a limited licence. That leaves the issue of whether s
103(2)(d) operated to prevent them from receiving a community-based sentence. That is the first issue to be determined in both appeals.
[17] The second issue is whether, if jurisdiction existed to impose community- based sentences under s 94, the Judge in each case ought to have imposed such a sentence rather than a further period of disqualification.
1. Did s 94(4) and s 103(2)(d) operate to prevent a community-based sentence from being imposed on the appellants?
[18] Section 103(2)(d) relevantly provides as follows:
(2) The following persons may not apply under this section for an order under section 105 authorising the grant of a limited licence:
…
(d)A person who is disqualified by an order made on his or her conviction—
…
(ii) for an offence against any of sections 56, 58, 60, 61, and 62 (which relate to offences involving alcohol or drugs); or
…
committed within 5 years after the commission of any other offence specified in this paragraph and arising from a different incident (whether or not both offences are of the same kind, regardless of when convictions were entered for those offences).
…
The arguments
[19] The argument for the appellants relies upon the fact that s 94(4)(b) is worded in the present tense. Their counsel points out that it removes the jurisdiction to impose a community-based sentence where the offender “is prohibited” from obtaining a limited licence under the specified sub-sections of s 103(2). Section
103(2)(d) similarly applies only to an offender who “is disqualified” by an order made on his conviction for an offence of the type specified in the subsection.
[20] The appellants contend that the use of the present tense in both sections is determinative. They say that an offender will only be ineligible for a community- based sentence under s 94(4) if he or she appears for sentence whilst subject to an existing order for disqualification. Furthermore, that order must have been imposed following conviction on a specified offence committed within five years after the commission of another offence specified by s 103(2)(d).
[21] Since neither appellant was disqualified at the time that the Judge came to consider the submission that a community-based sentence was appropriate, they contend that s 103(2)(d) did not come into play. They argue that it was therefore open to the sentencing Judge to impose a community-based sentence under s 94.
[22] The respondent argues that both appellants inevitably faced an order for disqualification as a result of the present offending. Once that was imposed, neither appellant could obtain a limited licence by virtue of their previous convictions. For this reason the respondent contends that s 94(4)(b) operated to remove the jurisdiction to impose a community-based sentence under s 94.
The decisions in the District Court
[23] In considering the submission that Mr M was eligible to receive a sentence under s 94 Her Honour Judge Kiernan summarised the position as follows:
[14] The first [issue] really, for the Court, is whether there is indeed jurisdiction in Mr M ’s case for s 94 to be considered as a sentencing
option. That is what it is, an option on sentencing, and it can only be considered once a guilty plea and conviction have been entered. That is the case in this matter.
[15] In my view the real question is if, as in this case, Mr M is convicted and liable to be disqualified for the offence he has accepted could he apply for a limited licence? If the answer to that question is no, then he could not apply under s 94. That is, in my view, the issue in this case.
[24] In concluding that jurisdiction did not exist the Judge said:
[39] Having recited the submissions made by counsel for the defendant, Mr M , and on behalf of the police I return to the issue in this case, the construction of s 94 and the reference to s 103. The question in my view is if the defendant was convicted as he has been and disqualified, as he is to be for this offending, could be apply for a limited licence? In my view he could not and therefore he cannot apply under s 94.
[25] Mr A ’s argument that he was entitled to be sentenced under s 94 arose during a hearing at which counsel for Mr A asked His Honour Judge Blackie to provide an indication of the sentence that he would impose in the event that Mr A pleaded guilty to the charge that he faced. The Judge said:
[12] The nub of the applicant’s argument is that an application under s 94 for substitution of disqualification is available because the defendant has not yet been convicted and disqualified for this offence (not having pleaded guilty or been found guilty), so s 103(2) does not yet apply.
[13] The informant (NZ Police) submit that before the Court can consider s 94, it must first be in a position to make an order for disqualification. An order for disqualification can only be made once the conviction has been entered against a defendant. On that basis, the Court cannot be in a position to consider a s 93 application until the matter has reached the sentencing stage.
[14] I entirely agree with the informant’s submission. Section 94 is a sentencing option. It only applies once a guilty plea or outcome has been obtained. By making a pre-emptive application in the guise of a sentence indication, the applicant is trying to get around the fact that once he is convicted, disqualification will be mandatory and that he will then be barred (because it will be the second conviction within five years) from applying under s 94. The applicant is asking the Court to agree, before conviction, to a course of action that will not be available to the applicant once he is convicted.
[15] If the applicant is seeking to argue that upon a close reading of s
103(2)(d) and, in the context of s 94, the Court should not consider the current offending because disqualification has yet to occur, then it could be countered by stating that it must be kept in mind that s 103 is primarily designed for specific purposes – the granting of a limited licence. A limited licence can only be granted when someone is disqualified. Therefore, the
construction of s 103 must be read with that in mind. Just because s 94 refers to 103, the construction of s 103 cannot be used to read down s 94. If the Court were to follow the applicant’s argument and ignore the current offending for determination of whether s 103 applies in the context of s 94, then the only time s 103(2)(d) were to prevent a person from applying under s 94 would be when they were caught driving whilst disqualified.
[16] The construction of s 94 must be kept in mind. The purpose of the reference to s 103 is to define a specific situation where s 94 has no application. The real question to be asked is, if the applicant was convicted and disqualified for this offending, could be apply for a limited licence? The answer, in this case, is plainly in the negative. Therefore, he cannot apply under s 94. If I am required to state the position in simpler terms, then it is as follows:
The applicant has been disqualified on a previous occasion in 2005 for effectively the same offence, driving with excess breath alcohol. That means if he is convicted (and automatically disqualified) for the current offending, he will not be able to apply for a limited licence pursuant to s 103 of the Act. This, in turn, means that he cannot apply under s 94 for a community-based sentence in substitution of a further order of disqualification. Section 94 of the Act is a sentencing option. Application under this section cannot be made until the Court is at a point where sentence can be imposed. By seeking a sentence indication which binds the Court under s 94 before entering a plea is, in my view, an attempt to defeat the operation of s 94(4) by asking the Court, in advance, to agree to a course of action which would not be available in the event of the applicant being convicted.
Decision
[26] I acknowledge that the legislature has chosen to use the present tense in both s 94(4)(b) and in s 103(2)(d). I do not, however, place weight upon the wording used in s 103(2)(d). The purpose of that section is to prescribe and restrict the range of persons who are eligible to apply for a limited licence. It was enacted in its present form well before s 94(4)(b) became part of the Act. Section 103(2) was therefore not drafted with s 94(4)(b) in mind. Moreover, a person must necessarily already be disqualified from driving before he or she applies for a limited licence. I consider that section 103(2) contemplates that that will be the case, and uses the present tense in every subsection for that reason.
[27] The appellants’ submission has greater force in relation to the use of the present tense in s 94(4)(b). Read literally, the section only renders an offender ineligible for a community-based sentence if he or she is currently prohibited by s
103(2)(a), (b) or (d) from applying for a limited licence.
[28] That interpretation would have far-reaching consequences, because it would mean that s 94(4) would only exclude persons who are already disqualified from driving at the time at which they are to be sentenced again. An offender would still be eligible for a community-based sentence if he or she had been convicted of one or more of the offences listed in s 103(2)(d) within the past five years, but was not currently subject to an order for disqualification.
[29] Most orders for disqualification are for periods of 18 months or less. An offender will generally only be disqualified from driving for longer than that for very serious offending. If the argument for the appellants is correct, it is likely to mean that s 94(4)(b) would exclude very few repeat offenders from being eligible for a community-based sentence in substitution for a period of disqualification. I do not consider that Parliament intended that that should be the case, particularly when it has determined that, as a general rule, disqualification should be mandatory for certain forms of driving misconduct.
[30] The fact that s 94(4)(b) refers expressly to s 103(2)(a), (b) and (d) obviously brings s 103 sharply into focus. I accept, however, that the interpretation for which the appellants contend was also potentially available under s 94(4) before it was amended to its current form in 2005. This is because, even in its original form, s
94(4) provided that s 94 was not to apply “if the offender is not entitled” to apply for or hold a limited licence” (emphasis added). The use of the present tense in earlier versions of s 94(4) means that it could always have been argued that an offender could only be excluded from eligibility for a community-based sentence if he or she was already subject to an existing order for disqualification.
[31] Remarkably, however, there has been no authority or commentary until recently to suggest that the argument for the appellants might be correct. This indicates that sentencing and appellate Judges have applied the section in the same way as the Judges in the present case applied it.
[32] Counsel for the appellants was able to refer me to two recent decisions in the District Court, however, in which the sentencing Judge has taken a different approach: Police v Nauer DC AK CRI-2008 004 350 30 April 2008 Bouchier DCJ
and Police v Cooney DC AK CRI 2008 004 20738 16 February 2009 McNaughton DCJ. In both cases the Judge accepted counsel’s submission that jurisdiction existed to invoke s 94 up until the point at which an order for disqualification was made in relation to the current offending. Each of those cases appears to have been decided during the course of a busy list day, however, and it is therefore not surprising that the Judges did not analyse in any detail the issues that I am required to consider.
[33] In considering which approach to take it is worthwhile to examine the legislative development of s 94(4). That may provide some assistance in determining Parliament’s intention when it enacted the section in its current form. I record that I am grateful to counsel for the respondent for the submissions that she provided on this topic.
[34] The predecessor to the Land Transport Act 1998 was the Transport Act 1962. The equivalent provision to s 103 of the current legislation in that Act was s 30AC, which provided as follows:
30AC. COMMUNITY-BASED SENTENCE MAY BE SUBSTITUTED FOR DISQUALIFICATION DIRECTED UNDER THIS PART IN CERTAIN CIRCUMSTANCES—
(1) Notwithstanding any provision of this Act that requires a Court (in the absence of special reasons relating to the offence) to order a person convicted of an offence to be disqualified from holding or obtaining a driver's licence, where—
(a) The offender has previously been ordered on conviction for an offence to be so disqualified; and
(b) The Court, having regard to—
(i) The circumstances of the case and of the offender; and
(ii) The effectiveness or otherwise of any previous order of disqualification made in respect of the offender; and
(iii) The likely effect on the offender of any further order of disqualification; and
(iv) The interests of the public,—
considers that it would be inappropriate to order that the offender be disqualified from holding or obtaining a driver's licence; and
(c) The Court considers that it would be appropriate to sentence the offender to a community based sentence in accordance with Part 3 of the Criminal Justice Act 1985,— the Court may determine not to order that the offender be disqualified from holding or obtaining a driver's licence.
(2)Where the Court sentencing an offender determines pursuant to this section not to make an order of disqualification,—
(a) The Court shall impose a community-based sentence on the offender;
and
(b) The imposition of such a sentence shall be without prejudice to the power of the Court to impose any other sentence in respect of the offence that, in accordance with the provisions of the Criminal Justice Act 1985, it may impose in addition to the community based sentence; and
(c) In determining the appropriate sentence to be imposed on the offender in respect of the offence, the Court shall take into account the gravity of the offence and the fact that the offender would otherwise have been liable to disqualification from holding or obtaining a driver's licence.
[35] In its original form s 94 of the 1998 Act mirrored s 30AC of the 1962 Act to some extent. Significantly, however, it contained s 94(4), which provided that the ability to substitute a community-based sentence was not available “if the offender is not entitled to apply for or hold a limited licence, or if s 63 or s 65 applies”. Section
30AC had not contained that restriction on eligibility.
[36] Section 94 was amended with effect from 30 June 2002, but those amendments did not affect the wording of s 94(4). The Land Transport Amendment Act 2005 then amended s 94(4) to its current form. The original Land Transport Amendment Bill did not, however, contain any reference to s 103(2)(a), (b) and (d). That did not occur until s 94(4)(b) was added to the Bill by the Select Committee that considered it.
[37] As originally introduced, the Bill contained a clause that provided as follows:
40 Substitution of community-based sentences
(1) Section 94(1) of the principal Act is amended by repealing paragraph
(1), and substituting the following paragraph:
(a) the offender –
(i)is being sentenced for an offence against section 32(1)(a) (driving while disqualified); and
(ii) has at least 1 year of an existing disqualification or disqualifications left to serve; and
(iii) has not been convicted of offences against any of the following sections of this Act committed within 2 years of the date of the commission of the offence being dealt with by the Court:
(A) section 35(1)(a) or (b): (B) section 36(1):
(C) section 36A(1)(a) or (c): (D) section 36A(2):
(E) section 39(1):
(F) section 56(1) or (2): (G) section 60(1):
(H) section 60(1):
(I) section 61(1) or (2): (J) section 62(1); and
(iv) has not been convicted in the previous 2 years or concurrently of an offence against section 171 of the Crimes Act 1961 (manslaughter) in which the manslaughter was the result of driving a motor vehicle; and.
(Emphasis added)
[38] In reporting the amendments to clause 40 back to the House, the Select
Committee said:
Substitution of community-based sentences
Clause 40 as introduced amends section 94 of the Act, which allows the substitution of community-based sentences in place of a mandatory licence disqualification, restricting the application of section 94 to a relatively small group of disqualified drivers who have accumulated multiple disqualifications for driving while disqualified but have no other recent convictions for serious road safety offences.
A submitter argued that clause 40 is too restrictive in its focus. It would remove this provision from being able to be used as a rehabilitative mechanism for repeat drink-drivers who can be encouraged to seek assessment and treatment prior to their court hearing. If they are able to demonstrate to the court that they have been successfully rehabilitated, they
can request the court to substitute a community-based sentence instead of a disqualification so that they are able to retain their employment.
We consider that the use of the provision to facilitate rehabilitation has merit and therefore recommend an amendment to clause 40 to effectively retain the status quo of section 94 of the Act, but extend its scope to include disqualified drivers who are caught in a cycle of disqualified driving but have no other recent convictions for serious road safety offences, without limiting its application to a wider group.
(Emphasis added)
[39] The Select Committee obviously sought to achieve its objective by limiting the application of s 94(4) to persons who had been convicted of the offences specified in s 103(2)(a), (b) and (d) within the last 5 years. The omission of s
103(2)(c) from the subsections listed in s 94(4) meant that persons who have been convicted within the previous five years of driving whilst disqualified or driving outside the terms of a limited licence were not affected by s 94(4). They could seek a community-based sentence under s 94 even though they would ordinarily have been prevented from applying for a limited licence by virtue of s 103(2)(c).
[40] It is significant in my view that the Select Committee also amended the bill so as to remove the requirement under clause (ii) of the Bill that the offender was to have at least 1 year of an existing order for disqualification left to serve. This obviously reflects the Committee’s view that such a requirement was not appropriate. There is nothing in the Select Committee’s report to suggest, however, that the only persons to be excluded from the benefit of s 94(4) were those offenders who were already subject to an existing order for disqualification.
[41] The Select Committee’s comments also make it clear that they did not consider that a community-based sentence should be available under s 94 to persons who had recent convictions for serious road safety offences. I take the latter part of that observation to refer to persons who have sustained convictions for the offences specified in s 103(2)(d) within the previous five years. The Committee therefore appears to have proceeded on the basis that s 94(4)(b) would operate to exclude from eligibility those persons who had been convicted of the offences specified in s
103(2)(d) within the last five years.
[42] Taken as a whole, I consider that the Select Committee’s report confirms that, in enacting s 94(4) in its final form, Parliament did not intend to restrict the application of s 94 to offenders who were already subject to a period of disqualification at the time of being sentenced on a subsequent charge.
[43] These factors lead me to conclude that the sentencing Judges in the present case correctly interpreted the manner in which s 94(4) is to be applied. I consider that Parliament intended that the benefit of s 94 should not be available to offenders who have been convicted of the offences specified in s 103(2)(a), (b) and (d) within the previous five years, regardless of whether or not they were still disqualified from driving when sentenced for later offending. The fact that Parliament has seen fit to include recidivist offenders who drive whilst disqualified within the category of persons who are eligible to receive the benefit of s 94 means only that it views such offenders in a different light and deserving of a different approach to sentencing.
[44] I therefore consider that s 94(4)(b) must be interpreted as meaning that an offender will not be eligible to receive a community-based sentence under s 94 if he or she would not, if an order for disqualification was imposed in relation to current offending, be eligible to apply for a limited licence by virtue of s 103(2)(a), (b) or (d) of the Act.
Result
[45] It follows that there was no jurisdiction for Mr M and Mr A to receive a community-based sentence under s 94, because their previous convictions would have prevented them from obtaining a limited licence. As a result, it is not necessary for me to consider whether the Judges were correct in their assessment that neither appellant satisfied the criteria specified in s 94(1)(b) and (c) of the Act.
[46] Both appeals are accordingly dismissed.
Lang J
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