A v Police HC Christchurch Cri-2009-409-180

[2010] NZHC 267

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2009-409-000180

A

Appellant

v

POLICE

Respondent

Hearing:         11 February 2010

Appearances: Appellant in person

C Butchard for Police

Judgment:      16 February 2010

RESERVED JUDGMENT OF HON. JUSTICE FRENCH

Introduction

[1]      This is an appeal against sentence.

[2]      The appellant, Mr A  , was convicted in the District Court of driving while disqualified, following a plea of guilty.   He was sentenced to three months community detention and disqualified from driving for twelve months.

[3]      The factual background of the offending was as follows.

A V POLICE HC CHCH CRI-2009-409-000180  16 February 2010

[4]     Mr A   was a disqualified driver, being subject to an indefinite disqualification imposed in 1998.

[5]      On the day in question (17 July 2009), Mr A   had accompanied a friend to the hospital, where the latter underwent surgery to remove several teeth.  After the procedure, the friend was feeling unwell from the effects of the anaesthetic and felt unable to drive home.  Neither could afford alternative transport, and so Mr A   decided he would drive the friend’s car.

[6]      After stopping him for speeding, the police discovered he was a disqualified driver.

[7]      According  to  the  police  summary of  facts,  Mr  A   admitted  to  not having a licence and in explanation stated he believed it would be all right to drive if he had a fully licensed driver in the car.

[8]      The  conviction  represented  Mr  A  ’s  seventh  conviction  for  driving while disqualified, his last appearance for that offence having been in October 2003 and his first in 1994.

[9]      Mr  A   is  53  years  of  age  and  is  on  a  sickness  benefit.  He  has  a reasonably extensive criminal record with some 17 previous convictions dating back to 1990: six convictions for driving while disqualified, five for drink driving, four violence-related offences and two drug charges.  Past sentences have included fines, community work, supervision, and imprisonment.

[10]     It is accepted that Mr A  ’s previous offending was primarily alcohol- related. To his credit, he has addressed his drinking problem.  He stopped drinking in

1998, lapsed in 2002 on the birth of a grandchild, and has been sober ever since.

[11]     The information before the sentencing Judge included a probation report. The report advised the Judge that since the offence Mr A   had taken steps towards obtaining a driver’s licence and was currently the holder of a temporary

licence.  He was assessed at low risk of reoffending.  The report concluded by stating that:

In  this  instance,  the  restriction  of  Mr  A  ’s  freedom  to  enjoy  his outdoor hobbies through the imposition of a Community Detention sentence is recommended.  Requesting Mr A   to remain at home during the day would serve a punitive purpose which may encourage him to reflect on his offending and keep him motivated towards obtaining his licence.

[12]     The recommendation was accepted by the sentencing Judge, who stated:

[2]       The probation officer tells me that you have had what is described as a colourful past but drink has been one of your major problems and that can be seen from the list of previous convictions of which there are a significant number, five I think, driving with excess breath alcohol.   You have got medical  problems  which I will  not  ventilate  in  open  Court.    You  were driving because your friend had some teeth removed and was not fit to drive after the anaesthetic.  You are remorseful for this offending.  The last time you were before the Court on your fourth conviction for driving while disqualified is a little time ago now in 2003.  The Probation Service think you are at low risk and that a term of community detention is appropriate, you being unsuitable for community work.  I agree.

[3]       You  are  sentenced  to  three  months  community  detention  with  a curfew to start on 1 October. The curfew period is

a)        9  o’clock  in  the  morning  until  5  o’clock  at  night  on

Saturdays to Thursdays; and

b)       9 o’clock in the morning until noon on Friday.

[4]       You are disqualified from driving for 12 months and that starts from today.

Grounds of appeal

[13]     Initially, when filing his appeal, Mr A   sought to challenge the length of the disqualification as well as the sentence of community detention.  However, he now accepts that as a result of s 32(4)(b) of the  Land Transport Act  1998 the disqualification imposed was mandatory.  Accordingly, he did not pursue that matter any further.

[14]     The essence of Mr A  ’s  appeal was that a sentence of community detention was unjust and too harsh having regard to the changes he had made to his life and the reasons why he drove that day.   In his submission, the Judge gave

insufficient   recognition   to   these   factors   because   the   Judge   was   misled   by inaccuracies in the probation report and because the lawyer representing him at the sentencing did not present the case properly.   Mr A   submitted a more appropriate sentence would have been a fine.

[15]     Mr  A    waived  solicitor/client  privilege,  and  accordingly  I  heard evidence from the lawyer who represented Mr A   at the sentencing.

[16]     I have carefully considered each of the alleged inaccuracies identified in the probation report by Mr A  .   I am not persuaded however that they or any alleged counsel incompetence had any significant bearing on the outcome. Or to put it another way, I am satisfied from my reading of the sentencing notes that the Judge was in fact aware of all the key mitigating factors relating both to the offence and the offender and did take them into account.

[17]     I am also satisfied the Judge was made aware Mr A   considered he was in a position to pay a fine.

[18]      However,  in  my view  it  would  have  been  reasonable  for  the  Judge  to conclude that a fine would not be an appropriate response given this was the seventh conviction for driving while disqualified and given the fact Mr A   was on a sickness benefit, unable to afford public transport on the day of the offence and at the time of sentencing still paying off an outstanding fine.

[19]     A stronger point made by Mr A   was that the report’s assessment of his lack of suitability for community work appears to have been based at least in part on a belief that he was suffering from current mental health problems when in fact, according to Mr A   those are historic only and should not have prevented him from being considered for community work.

[20]     In  his  evidence,  Mr  A  ’s  lawyer  testified  that  Mr  A    had instructed he was not able or willing to undertake community work. This was disputed by Mr A   and also apparently by the friend who was present when Mr A   gave his instructions.

[21]     It has not proved necessary for me to resolve that conflict.  My reading of the sentencing notes is that when the Judge stated “I agree” at [2], what he was agreeing with was the view that community detention was the appropriate response, a conclusion he would have reached even if Mr A   had been assessed as suitable for community work.

[22]     A sentence of three months community detention was undoubtedly within the Judge’s range and could not be described as manifestly excessive, despite the mitigating factors relating to the offence and Mr A   personally.

[23]    The appeal is accordingly dismissed and the sentence confirmed. As I understand it, Mr A   has not served his sentence pending the outcome of this appeal and accordingly the start date for the commencement of the curfew will be this Saturday 20 February 2010.

Solicitors:

Crown Solicitor’s Office, Christchurch

Copy to: Appellant