Araia v Police
[2019] NZHC 3374
•17 December 2019
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CRI-2019-441-000039
[2019] NZHC 3374
BETWEEN MOSES ARAIA
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 17 December 2019 Counsel:
W Hawkins for the Appellant C R Stuart for the Respondent
Judgment:
17 December 2019
JUDGMENT OF DOOGUE J
Introduction
[1] The appellant, Moses Araia, appeals against a sentence of seven months’ disqualification imposed1 by a Community Magistrate in the District Court at Hastings on 18 September 20192 for the following charges:
(a)driving while suspended;3 and
(b)driving in excess of the speed limit.4
1 A fine of $500 was also imposed.
2 Police v Araia DC Hastings CRI-2019-020-00065, 18 September 2019.
3 Land Transport Act 1998, s 32(1)(c); maximum penalty is three months’ imprisonment or a fine not exceeding $4,500, and disqualification from holding or obtaining a driver licence for at least six months.
4 Section 40; Land Transport (Offences and Penalties) Regulations, regs 3 and 4; and Land Transport (Road User) Rule 2004, r 5.1(1); maximum penalty is a fine not exceeding $1,000.
ARAIA v NEW ZEALAND POLICE [2019] NZHC 3374 [17 December 2019]
[2] A first appeal was filed in the District Court at Hastings. That appeal was not opposed by the Police. However, on 14 November 2019, the appeal was dismissed by Judge A J Adeane.5
[3] Mr Araia now appeals Judge Adeane’s decision, leave having been granted by Simon France J on 26 November 2019.
Approach on appeal
[4] Mr Araia appeals his sentence under s 253 of the Criminal Procedure Act 2011. That provision outlines the process for second appeals, though the principles are the same as for first appeals.
[5] The Court must allow Mr Araia’s sentence appeal if satisfied that, for any reason, there is an error in the sentence imposed on conviction and that a different sentence should be imposed.6
[6] A sentence appeal is an appeal against a discretion and only if the sentence is manifestly excessive or contains an error in principle should the appellate court re- exercise the discretion. An error of principle includes an error of fact or law, failing to take into account a relevant consideration, or if the decision was plainly wrong.7 The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.8
Background
[7] On 13 December 2018, Mr Araia was suspended from driving any motor vehicle for a period of three months due to having excess demerit points.
[8] At about 10:20 a.m. on Saturday, 23 February 2019, Mr Araia was driving along Takapu Road, Hastings. He made a sudden sharp turn into his home address on that road which caught the attention of an on-duty police officer.
5 Police v Araia DC Hastings CRI-2019-020-003122, 14 November 2019.
6 Criminal Procedure Act 2011, s 256(2).
7 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 481 at [30]-[35].
8 Ripia v R [2011] NZCA 101 at [15].
[9]He was stopped for a routine traffic stop and his licence status was revealed.
[10] On Sunday, 30 June 2019, at about 5:20 p.m., Mr Araia was the driver of a motor vehicle on SH2, Te Hauke, Hastings. The posted speed limit was 100km/h. Mr Araia was speeding and was checked at a speed of 176km/h. Police stopped him and he denied the facts as outlined.
[11] Mr Araia pleaded guilty to both charges on 18 September 2019. On the driving while suspended charge, he was convicted and fined $400.00, ordered to pay Court costs of $130.00, and disqualified for six weeks. On the driving with excessive speed charge, he was convicted and fined $500.00 and was disqualified from holding or obtaining a driver licence for seven months commencing 18 September 2019. The two sentences were to run concurrently.
Parties’ submissions
Mr Araia
[12] Mr Hawkins, for Mr Araia, argues that the District Court Judge should have allowed the appeal against the Community Magistrate’s decision and exercised his discretion pursuant to s 94 to impose a community-based sentence in lieu of disqualification.
[13] In upholding the refusal to impose a community-based sentence in lieu of disqualification, Mr Hawkins argues the Judge failed to impose the least restrictive outcome and as a result the sentence is manifestly excessive. Here he relied significantly on the decision of Cooke J in Bartram v Police.9
[14] Further, Mr Hawkins says in addition to there being no regard for the least restrictive outcome, there was no mention of any other relevant principle or purpose of sentencing.
9 Bartram v Police [2019] NZHC 90.
Crown
[15] Mr Stuart, for the Crown, submits that there was no error in the Community Magistrate’s decision. With reference to several decisions of this Court, he submits that it was entirely proper for the Community Magistrate to decline to exercise her discretion under s 94 after taking into account Mr Araia’s poor driving history and the risk he posed to public safety.10
[16] In response to Mr Hawkins’ reliance on Bartram, Mr Stuart submits that it is only helpful in respect of the “conversion rates of disqualification to community work hours”. It does not however analyse the factors relevant to whether the discretion under s 94 should be exercised in the first place. Therefore, the Community Magistrate did not err in failing to consider Bartram.
The District Court decisions
[17] The relevant facts and circumstances were not set out fully in either the Community Magistrate’s decision or the District Court Judge’s decision. 11 This is not surprising given the extremely busy environment in which District Court judicial officers operate. But a minimum description of the reasons for the exercise of discretion one way or the other is always necessary to demonstrate that the judicial officer has had regard to all of the relevant purposes and principles of the relevant Acts including the Sentencing Act 2002.12
[18] In this case, the relevant provision is s 94 of the Land Transport Act 1998, which provides:
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
10 Wilson v Police [2014] NZHC 3028; Parata v Police [2016] NZHC 3026; Tarei v Police [2017] NZHC 1270.
11 I have only a draft unsigned oral decision of Judge Adeane but both counsel accept it is an accurate record of what was said in Court by the Judge on 14 November 2019.
12 Sentencing Act 2002, s 31. For a similar discussion in respect of giving reasons for factual findings and evidential inferences which result in conviction in judge-alone trials, see Sena v Police [2019] NZSC 55 at [36]-[37].
(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
(aa)an alcohol interlock sentence has been ordered under section 65AC(1); or
(b)the offender is prohibited from applying for a limited licence under section 103(2)(a), (b), or (d).
[19] Section 94 applies to Mr Araia because although this particular offending concerns a suspension of licence and not a disqualification, he has previously been ordered on conviction to be disqualified from holding or obtaining a driver licence.13
[20] I turn now to Judge Adeane’s decision which contains a pithy five paragraphs. In the first paragraph he sets out the grounds of appeal. In the second paragraph he finds that the Community Magistrate applied s 94 “unimpeachably”.
[21] At [3] and [4], the Judge discusses the relative merits of the imposition of a fine compared to a period of community work and held that in imposing the fine the Community Magistrate was correct — she must have considered community work to have been manifestly excessive, hence the imposition of a fine. The Judge also held that s 94 was not applicable in this case.
[22] With respect, the Judge appears to have been confused. The relevant consideration is not whether a fine or community work ought to have been imposed, but rather whether community work should be imposed as a substitute for the mandatory period of disqualification. The Judge has therefore misdirected himself and is in error.
[23] The Judge is also in error because “any other sentence” in s 94(3)(b) allows for a fine to be imposed in addition to community work when a judicial officer decides not to impose the mandatory disqualification but rather some form of substituted sentence. Therefore, the fine, of itself, was in no way determinative of what the least restrictive outcome was in the circumstances; it was always available.14
[24] As the District Court Judge erred in law, that leaves me to review the Community Magistrate’s decision.
13 See Police v Smith [2012] NZHC 2346, [2012] NZAR 965.
14 This is also true given the maximum penalty for contravening s 32(1) of the Land Transport act 1998 is three months’ imprisonment or a fine not exceeding $4,500, and disqualification from holding or obtaining a driver licence for at least six months.
The Community Magistrate’s decision
[25] In applying s 94, the Court must have regard to certain mandatory considerations set out in s 94(1)(b). They are:
(a)the circumstances of the case and of the offender;
(b)the effectiveness or otherwise of a previous order of disqualification made in respect of the offender;
(c)the likely effect on the offender of a further order of disqualification; and
(d)the interests of the public.
[26] It is reasonably clear that the Community Magistrate declined the application to substitute community work for disqualification for two reasons: Mr Araia’s extensive demerit point history and his driving at 176km/h in a 100km/h speed limit area was such that he put the public at risk. Disqualification was necessary in the Community Magistrate’s view so as to keep Mr Araia off the road in the interests of public safety. In other words, Mr Araia failed the threshold test in s 94 of the Land Transport Act 1998.
[27] In this case the Community Magistrate appears to have confined her attention to subs (1)(b)(iv). It is not necessary for a judicial officer to explicitly refer to each of the factors in s 94(1)(b), provided that he or she has regard to them.15 However, in this instance, there is an absence of attention to the circumstances of the offender and the likely effect on the offender of a period of disqualification. These are mandatory considerations under s 94(1)(b)(i)–(iii). Because of this, I am satisfied the Community Magistrate erred by failing to take into account relevant mandatory considerations in declining to exercise her discretion under s 94.
[28]Accordingly, I will consider Mr Araia’s sentence afresh.
15 Police v Body [2013] NZHC 1586 at [19]; Poona v Police [2018] NZHC 791 at [25].
Analysis of Bartram
[29] Mr Hawkins has placed significant weight in his submissions on Bartram v Police. In that case, Mr Bartram was stopped, it would appear, at a routine police checkpoint rather than because of the manner in which he was driving. At that checkpoint however, it was revealed that he had been driving while disqualified.
[30] Mr Bartram was employed as a rural farm hand at the time and needed to be able to drive to remote rural areas as part of that employment. He was young and he entered an early guilty plea.
[31] Mr Bartram was sentenced in the District Court for one charge of driving while disqualified. The District Court Judge decided to impose a sentence of community work in lieu of a period of disqualification, but also increased the period of community work. The Judge imposed a total sentence of 200 hours’ community work. Mr Bartram appealed on the basis that the sentence was manifestly excessive.
[32] Cooke J reviewed a series of District and High Court decisions discussing s 94 of the Land Transport Act 1998. Little can be drawn from that review in respect of this particular case. Indeed, the Judge himself observed:16
… there may have been some lack of consistency in the application of periods of community work in the cases since Body. This lack of consistency is not completely explained by the personal circumstances giving rise to the exercise of the s 94 discretion.
[33] Nonetheless, Cooke J found that the amount of the period of community work imposed in that case was excessive.
[34] He concluded that given the decision in Police v Body considered a number of cases for offending of this kind, it provided the best guidance for the appropriate range.17 He found that there is a general starting point of an additional 20-40 hours’ community work in lieu of a six-month disqualification period. 20-40 hours’ community work might also be a starting point for breach of a six-month disqualification period concerning a first or second offence without aggravating
16 Bartram v Police, above n 9, at [16].
17 Police v Body, above n 15.
factors, although this will be heavily influenced by the circumstances of the particular case.
[35] Cooke J allowed the appeal because there were no concerning features of Mr Bartram’s driving, he was young and in settled employment.18 In doing so, he observed:19
Care should be exercised to ensure that discretion is not exercised too leniently, and to make it plain that escalating driving offending is not to be tolerated. But 40 hours’ community work is still a significant period for Mr Bartram to manage within his work commitments...
[36] I agree with Mr Hawkins that Bartram provides guidance in respect of applying s 94, that is in determining the appropriate amount of community work once the decision to exercise the discretion in that provision has been made. However, it does not assist me in determining whether the discretion should be exercised in the first place. That falls to a consideration of the factors in s 94(1)(b).
[37] Mr Hawkins’ written submissions did not provide me with any relevant information in terms of the factors in s 94(1)(b). Therefore, by way of a minute dated 12 December 2019, I asked for Mr Araia to provide an affidavit explaining his personal circumstances and addressing the factors in that provision.
Mr Araia’s personal circumstances
[38] Mr Araia lives in Hastings and is a father to five children between the ages of seven years and eight months. Mr Araia’s four youngest children live with their mother who is a registered nurse living in Te Hauke, some 20kms from Hastings. Mr Araia assists where he can such as by providing transport to and from school and day care.
[39] For the past three years, Mr Araia had been employed as a machine operator. That employment ended in mid-November of this year. Since then, he has been looking for employment in the horticulture industry. However, he has been turned down by three employers within the past month because of his disqualification.
18 Bartram v Police, above n 9, at [18].
19 At [18].
[40] Mr Araia is repentant for his actions and the impact his disqualification may have on his ability to assist the mother of his children with child care responsibilities. He has given his word that if this Court were to substitute his disqualification for community work, he would do his utmost to ensure it was completed around any employment obligations he may have. He also indicated he is happy to complete a defensive driving course.
[41] Mr Araia also provided context to the driving while suspended charge. He deposed that he had been drinking with a friend and they had gone out to buy some food. Mr Araia did not drive. When they got back to Mr Araia’s house, he decided to move the car off the road as feared it may be broken into or stolen over the weekend. He was stopped by a police officer who discovered Mr Araia had had his licence suspended. While Mr Araia denies having driven other than to move the car off the road, he acknowledges that he should not have even done that.
[42] Finally, Mr Araia has confirmed that he has two previous convictions which resulted in disqualifications. These were for driving while suspended in April 2012 which resulted in disqualification for six months, and driving in excess of the speed limit in May 2013 which resulted in disqualification for 30 days. Mr Araia says that these convictions occurred before he had his children and during a very different period of his life.
Analysis
[43] Mr Stuart submits that Mr Aria’s personal circumstances are unremarkable; there is nothing in his affidavit that supports his appeal. On the contrary, he submits that there is no compelling evidence pointing towards the need for a licence to maintain employment or care for his children. While it may be that there is moral and financial pressure placed on Mr Araia as a result of his disqualification, this is simply the unfortunate but natural consequence of a conviction for recidivist driving offending.
[44]It is the Crown’s view that s 94 should be used infrequently. In Wilson v Police,
Dobson J said:20
[12] Section 94 should only justify a variation from the norm where the personal circumstances of the offender, and in particular the rehabilitative prospects, justify affording the offender an opportunity to break the cycle of circumstances contributing to the recidivist offending.
[45] Subsequently in Parata v Police, Downs J cited Wilson with approval, stating that s 94 “makes plain the offender’s interests are but part of the statutory mix... too ready resort to s 94 could undermine the efficacy of disqualification as a penalty more generally.” 21 Downs J reiterated this view in Tarei v Police, noting there is “public interest in the imposition of at least the presumptive penalty when the associated driving was dangerous.”22
[46] However, the Courts have on a number of occasions described s 94 as being remedial in nature.23 As Paul Davison J said in Poona v Police:24
[Section 94] gives recidivist offenders who may for a variety of reasons have failed to comply with the prohibition from driving while disqualified an opportunity to break the cycle of offending by substituting a different form of sentence.
[47] His Honour went on to observe that there is some divergence in the approach taken by the Courts in respect of s 94.25 Where, as in Wilson, a strict view of s 94 has been taken, the Courts have more readily declined to employ s 94 in the absence of evidence of extraordinary consequences resulting from disqualification, or an express desire by the offender to rehabilitate.26 On the other hand, some Judges have been willing to exercise their discretion under s 94 where it has been recognised that the offender is trapped in a cycle of offending and that the purposes of sentencing are best achieved by imposing a different sentence.27
20 Wilson v Police, above n 10.
21 Parata v Police, above n 10, at [10].
22 Tarei v Police, above n 10, at [13].
23 Maeva v Police HC Auckland CRI-2010-404-402, 11 March 2011 at [30]; Wilson v Police, above n 10, at [10]; Paikea v Police [2017] 3032 at [12]; Poona v Police, above n 15, at [17].
24 Poona v Police, above n 15, at [17].
25 At [20].
26 At [21].
27 At [21].
[48] While acknowledging the concerns expressed in cases where a strict view has been taken, Paul Davison J concluded (footnotes omitted):
[23] Certainly it is necessary to use caution in applying s 94 so that it does not become a means by which those with a wilful disregard for the law are able to avoid a penalty of disqualification. Nevertheless the section needs to be employed realistically in order to break a cycle of offending which appears likely to continue and which means that disqualification is ineffective as a penalty. The starting point is that disqualification is to be ordered. However, where an offender is repeatedly driving in breach of an order of disqualification, the penalty of disqualification is demonstrably ineffective in deterring the offender...
[24] The imposition of a community-based sentence under s 94 should not be regarded as a lenient sentencing option. Rather, it is simply the court’s choice of a penalty that more effectively meets the purposes of sentencing.
[49] Unlike many recidivist offenders who seek recourse to s 94, Mr Araia’s conviction history is limited. His only two convictions are those entered in 2012 and 2013. However, he has amassed six licence suspensions as a result of accumulating a sufficient number of demerit points on each occasion.28
[50] Further, it appears that Mr Araia’s demerit points have predominantly been obtained as a result of him breaching the conditions of his learner licence. He has been caught driving unaccompanied 18 times and driving without displaying ‘L’ plates six times. While this non-compliance history is peculiar, in my view it does not pose any material risk to public safety.
[51] The same cannot be said for Mr Araia’s speeding history. Since 2010, Mr Araia has amassed eight fines for driving in excess of the posted speed limit. On four of those occasions, the speed limit was 100km/h. And on two of those occasions, Mr Araia received 50 demerit points — the greatest number that can be given, reserved for instances where a driver exceeds the speed limit by more than 35km/h. The conviction for speeding which is the subject of the present appeal is of particular concern. Put simply, driving at 176km/h is extremely reckless. It is perhaps by a stroke of luck that Mr Araia did not lose control and kill himself or someone else. I therefore agree with the Community Magistrate that this behaviour, along with
28 If a person accumulates 100 demerit points over a two-year period, their licence is automatically suspended for a period of three months.
Mr Araia’s history of speeding, weigh against the exercise of my discretion under s 94; the risk Mr Araia poses to public safety is significant and there is public interest in precluding him from driving for a period of time.
[52] It is against this public interest that the factors in s 94(1)(b)(i)-(iii) must be balanced.
[53] First, Mr Araia’s personal circumstances. I accept that a lengthy period of disqualification would likely mean that the mother of Mr Araia’s children will have to assume sole responsibility for transporting her and Mr Araia’s children to day care and school. However, in his affidavit Mr Araia states that she already has full custody of the oldest four children and that he “supports the kids where [he] can”. I infer from this that Mr Araia’s support is not extensive and disqualification is unlikely to disproportionately burden the mother of his children to the extent submitted on Mr Araia’s behalf.
[54] Turning next to the effectiveness of previous orders made in respect of Mr Araia, to his credit he successfully complied with both Court-ordered disqualification periods resulting from his 2012 and 2013 convictions. Nevertheless, Mr Araia has an extensive history of breaching road rules and licence conditions, resulting in six licence suspensions in the space of eight years. As was noted in Poona, s 94 has previously been applied to address this sort of cycle of offending. However, the predominant issue for Mr Araia was compliance with the conditions of his learner licence, in particular, the requirement that he does not drive unaccompanied. He has since obtained a restricted licence. Given he can now drive unaccompanied between the hours of 5 a.m. and 10 p.m., I am optimistic that Mr Araia will have less trouble complying with the conditions of his new licence and that the previous cycle of offending will be broken.
[55] Finally, the likely effect on Mr Araia of a further period of disqualification. I am conscious of the impact a period of disqualification may have on a person living in a rural area where driving may be paramount to securing employment. In many instances, a period of disqualification in these circumstances may be significantly
more onerous than in respect of a person living in a metropolitan area with access to public transport.
[56] In Mr Araia’s case however, I note three things. First, Mr Araia does not live rurally himself; he lives in Hastings. Second, until very recently he was employed as a machine operator. He has since sought employment in the horticulture sector not out of necessity, but because he is familiar with it. While a disqualification may temporarily impede him from finding employment outside of Hastings, it does not preclude him from finding employment within the town itself. Third, Mr Araia has had to live with the same obstacle on each of the six occasions he has had his licence suspended. There is no evidence before this Court that he found those occasions disproportionately onerous.
[57] Overall, I consider that these factors weigh against the exercise of my discretion under s 94. While I acknowledge the hardship raised by Mr Araia in his affidavit and the matters submitted on his behalf, they are not to such a level that recourse to s 94 is warranted. That his convictions have come at Christmas time, as was submitted by Mr Hawkins, is unfortunate but unremarkable in itself. On the contrary, the factors to which I have had regard are the natural and ordinary consequences of offending of this kind.
Appropriate sentence?
[58] While I consider the Community Magistrate to have erred in her application of s 94, I nonetheless consider the sentence imposed to have been appropriate. In my view, an elevated level of denunciation and deterrence to that inherent in the minimum disqualification period of six months was warranted given the risk Mr Araia posed to the public in grossly exceeding the speed limit and his history of similar offending.
[59] I also consider a period of disqualification of seven months and a fine of $500 to be the least restrictive outcome in Mr Araia’s circumstances.
Result
[60]The appeal is dismissed.
Doogue J
Solicitors:
Bramwell Bates Lawyers, Hastings Crown Solicitor, Napier
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