BADEN OWEN WOOLDRIDGE AND NEW ZEALAND POLICE

[2024] NZHC 3092

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2024-488-85 [2024] NZHC 3092

BETWEEN

BADEN OWEN WOOLDRIDGE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

15 October 2024

Appearances:

V D Heather for Appellant

A J Goodwin for Respondent

Judgment:

23 October 2024

JUDGMENT OF O’GORMAN J

[Appeal against sentence]

This judgment was delivered by me on 23 October 2024 at 3 pm

Registrar/Deputy Registrar

…………………………………

Solicitors/Counsel:

Victor Heather, Barrister, Whangārei Marsden Woods Inskip Smith, Whangārei

WOOLDRIDGE v NEW ZEALAND POLICE [2024] NZHC 3092 [23 October 2024]

[1]    This is an appeal against the sentence of Judge G Tomlinson.1 On 15 July 2024, the Judge sentenced Mr Wooldridge on one charge of driving while suspended (third and subsequent).

[2]    The appellant applied under s 94 of the Land Transport Act 1998 (LTA) for the substitution of a community-based sentence on the grounds that it would be inappropriate to order that the offender be disqualified from holding or obtaining a driver’s licence. The Judge declined that application and sentenced Mr Wooldridge to 80 hours of community work and directed disqualification for 12 months and one day.

[3]    The appellant challenges the decision to decline the s 94 application and seeks to admit new evidence on appeal.

Legal principles — sentence appeals

[4]    The Court must allow an appeal against sentence if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.2 Generally, the sentence must be shown to be manifestly excessive or wrong in principle.3 The focus is on the end sentence imposed, rather than the process by which it is reached.4

Legal principles — s 94 of the LTA

[5]Section 94 of the LTA states:

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

1      New Zealand Police v Wooldridge [2024] NZDC 21522.

2      Criminal Procedure Act 2011, s 250.

3      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27] and [31]–[35].

4 At [36].

(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.

…

[6]    In Police v Body, Mallon J noted that although the starting point is disqualification, the discretion to substitute a community-based sentence is broad:5

The starting point is that disqualification is to be ordered. But that starting point is subject to the discretion to substitute that with a community-based sentence. That discretion is a broad one. It requires only that the circumstances make disqualification inappropriate and a community-based sentence appropriate. In Lambert v Police the Judge went as far as to say “it will usually be better that the penalty take some form other than an additional disqualification.” That was the view of the Judge in the present cases under appeal where there were no aggravating features in respect of the driving.

[7]    The purpose of s 94 is remedial, to remove recidivist offenders from a pattern of offending:6

Section 30AC of the Transport Act 1962, from which s 94 derives, was always understood to be ‘remedial’. It was to abstract recidivist disqualified drivers from an unending ‘wheel of offending’, where any further disqualification was likely only to engender further offending. It also came to be invoked when the offender could not obtain a limited licence.

[8]In Wilson v Police, Dobson J observed:7

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.

5      Police v Body [2013] NZHC 1586 at [7] (footnotes omitted).

6      Maeva v Police HC Auckland CRI-2010-404-402, 11 March 2011 at [30] (footnotes omitted).

7      Wilson v Police [2014] NZHC 3028 at [12].

[9]More recently, in Parata v Police, Downs J cited Wilson with approval:8

I respectfully endorse the approach of Keane and Dobson JJ, for, the provision makes plain the offender’s interests are but part of the statutory mix. And, too ready resort to s 94 could undermine the efficacy of disqualification as a penalty more generally.

Offending

[10]   On 15 March 2021, Mr Wooldridge was convicted of driving while suspended (this prior offending is relevant to the prerequisites for making an application under  s 94).9

[11]   On 2 June 2023, Mr Wooldridge was served with a suspension from holding or obtaining a driver’s licence for three months due to excess demerit points.

[12]   Some six weeks later, on 12 July 2023, Mr Wooldridge was stopped by police while driving a BMW in Whangārei. Checks were done and it was found that the appellant was a suspended driver. In explanation, the appellant said, “I thought it was over”.

District Court sentence

[13]   After summarising the offending, the Judge began by noting Mr Wooldridge’s significant driving conviction, demerit point and licence suspension history, including drink driving convictions in 2011 and 2016, driving while disqualified in 2016, unlicensed driving in 2019, driving while suspended in 2020 (for which he successfully argued s 94 and was not further disqualified), another driving while suspended  in  2021  (for  which  he  again  received  no  further  disqualification),  10 speeding tickets in the last five years, and one instance in 2020 of using a phone while driving.

8      Parata v Police [2016] NZHC 3026 at [10].

9      Land Transport Act 1998, s 94(1)(a).

[14]   The Judge gave the following reasons when considering and declining the s 94 application:

[6] He makes an application under s  94.  He  highlights  his mother is unwell and he has given up work to assist her. He argues that the previous disqualifications were ineffective and, therefore, there is little point in further disqualification and he says he is remorseful for his offending. I question the validity of that remorse given the not guilty plea and the technical defences to be run, however, he is entitled to do that but that remorse also must be tempered with the fact that this is not his first driving while suspended. In fact, it is his third in the 2020s.

…

[9]                  I must turn my mind to the circumstances of the case. He was driving six weeks after being suspended for 12 weeks. He claims that he thought that suspension was over or had confusion between that and another driving whilst disqualified.

[10]               In terms of his circumstances, he is not working at present. He has quite responsibly taken on caring for his mother who I am told is unwell. I accept that absolutely and I commend Mr Wooldridge for doing that for his mum. I think that is really important and I congratulate him for it. It is not everyone that is prepared to do that. People these days are more focused on themselves rather than those that they care about and those that care about them and so for that, Mr Wooldridge, you have my respect. I have as I have said to Mr Heather in submission no information to suggest that Mum cannot drive, I have no information to assess that there is someone else that cannot drive Mum to the hospital or to the doctors or to the pharmacy or that she cannot get a taxi or that there is no funding for a taxi.

[11]               I must then turn to the circumstances Mr Wooldridge presents and as I have already mentioned, 10 speeding tickets in five years, one driving with a phone, two prior s 94s where he got no disqualification and still he keeps offending in this way. He has demonstrated throughout that he is a danger on the roads and, accordingly, I am not at all satisfied that it would be in the interests of justice not to disqualify him further.

[12]               The effect of the other orders, he only has driven whilst disqualified once in the past, so disqualifications have worked. Suspensions on the other hand have not. He has driven while suspended on now three occasions. I am satisfied that when disqualifications have worked, and in 2016 when he was disqualified, there have been no further driving whilst disqualifieds. There have, however, been the driving while suspended.

[13]               I am not at all satisfied that in the circumstances under s 94 that this is a matter where Mr Wooldridge should be availed of a s 94 for the third time and, accordingly, I decline the application under s 94. He is disqualified from holding or obtaining a driver’s licence for 12 months and one day. He is given a final warning on disqualified or suspended driving. Any more behaviour like that and the start point is one of imprisonment. He is also convicted and ordered to undertake 80 hours’ community work.

Application to adduce further evidence

[15]   The appellant sought to rely on three new pieces of evidence for the purposes of the appeal:

(a)an affidavit from the appellant’s mother regarding her medical condition;

(b)a post-sentence affidavit and letter from Mr Rolland saying he could offer employment opportunities to Mr Wooldridge as a builder if he is entitled to drive (not only for commuting to work, but also to take one of the vans to and from site); and

(c)a letter from Solomon Group (a Māori private training establishment that focuses on enhancing participants’ employment prospects and personal development skills) regarding the appellant’s attendance at a trucking class. The appellant says this demonstrates his commitment to improving his skills and advancing his career.

[16]   The appellate process does not permit new evidence on a sentence appeal unless the evidence is credible, fresh and cogent.10 The respondent opposes admission of the new evidence on the grounds that it should either have been available at sentencing for the sentencing Judge (it is not fresh), or has arisen post-sentencing and should not be considered, relying on Orchard v R:11

To the extent [the fresh evidence] goes on to advise Mr Orchard’s health status since sentencing, we do not consider it to be sufficiently exceptional or relevant to warrant admissibility given the general principle that events post-dating sentence should be disregarded on appeal.

10     Orchard v R [2019] NZCA 529, [2020] 2 NZLR 37 at [23].

11     At [24] (footnote omitted).

[17]   Overall, the respondent submits that the three documents fail to meet the necessary requirements:12

(a)If the evidence is both credible and fresh, it should be admitted unless the appeal court is satisfied it would have had no effect on the sentence.

(b)If the evidence is credible but not fresh, the appeal court should assess its strength and its potential impact on the sentence. If the appeal court considers that the sentence could be manifestly excessive if the evidence is excluded, then it should be admitted notwithstanding that it is not fresh.

[18]   I accept that the documents do  not  meet  the  tests  specified  in  Orchard. For convenience, I explain why in my substantive reasons below.

Submissions of the parties

[19]   The appellant submits that the Judge failed to fully consider factors in support of granting the application. In particular:

(a)his mother’s medical condition, which makes driving quite challenging for her due to her pain and mobility issues; and

(b)the prospects of disqualification impairing Mr Wooldridge’s ability to return to work (at the time of the application, the appellant had given up work to care for his mother), given the post-hearing offer of work as a builder, for which he must be able to transport himself to and from work and drive one of their vans to various work sites.

12 At [23].

[20]   The appellant also submits that the Judge placed disproportionate importance on factors against granting the application:

(a)Although the traffic conviction history refers to two offence date instances in 2020 and 2021 of driving while suspended resulting in no disqualification,  the  result  date   for   both   was   the   same   and  Mr Wooldridge recalls only one instance.

(b)In respect of the present offending, there was no evidence at the time the appellant was stopped to suggest the police had concerns about the manner of his driving. There is no indication in his history of any dangerous, reckless, or careless driving. While any speeding is unacceptable, the demerit points attributed to some of the speeding infringements indicate that the speeds were generally at the lower end of the scale.

(c)The Judge placed excessive emphasis on the number of speeding infringements, without adequately considering the broader test that allows the Court to impose an alternative to disqualification considering public interest factors, such as the appellant’s employment and family care responsibilities.

[21]   The appellant submits that previous orders of disqualification have been ineffective in deterring the appellant from driving while suspended: the appellant had two prior convictions for driving while suspended and once in the past for driving while disqualified. Accordingly, the appellant is trapped in a cycle of offending, and any further disqualification order would only serve to perpetuate this cycle.

[22]   The respondent submits that, as the new material sought to be adduced by the appellant was not available to the sentencing Judge, no error was made in respect of that material. The sentencing Judge appropriately considered the factors in favour of the application before deciding to decline it. The cycle of offending arguments were expressly considered, without any error. Proper weight was given to the defendant’s driving history, which was a relevant consideration under the s 94 test. As the material

relating to the appellant’s employment prospects arose after the hearing, there was no error by the Judge on that aspect, and in any event those possibilities are insufficient to justify an order under s 94, particularly in light of the appellant’s driving history.

Analysis

[23]   I agree with the submissions of the  respondent  that  the  likely effects on  Mr Wooldridge do not outweigh the other public interest factors and the purposes of promoting accountability, responsibility, and deterrence.

[24]   As noted in Tailor v Police,13 the consideration under s 94 of the public interests can encompass a wide variety of matters. They include the public interest in ensuring that persons who are suspended or disqualified from driving obey those orders.14 It would be unfair to compliant offenders if non-compliant offenders were seen to receive some kind of advantage as a result of their conduct. There is also the public interest in keeping offenders off the road in circumstances where they may have presented a danger to the public by virtue of their past conduct. A countervailing public interest is ensuring that necessary medical attention can be sought in a convenient way.

[25]   The Judge gave a relatively detailed consideration to the matters raised under the s 94 application, including the impact on Mr Wooldridge’s mother, the cycle of offending arguments, the likely effectiveness of a disqualification order, and objectives of promoting accountability, responsibility, and deterrence in circumstances where Mr Wooldridge had been granted a s 94 order before but continued to commit speeding infringements. The question of employment was referred to, reflecting the facts as presented at the time, namely that Mr Wooldridge has given up work for the moment to care for his mother.

[26]   The new evidence from his mother about her medical issues does not change the Judge’s analysis because she admits that she is capable of, and has been, driving herself when necessary (as the Judge suspected might be the case, even if it is

13     Tailor v Police HC Auckland CRI-2009-404-322, 7 December 2009.

14 At [25].

uncomfortable). Also, the mother conspicuously omits properly addressing the other points made by the Judge that someone else might be able to drive her (not necessarily a family member), or a taxi or other alternative transport might address her needs.

[27]   The Judge expressly considered cycle of offending arguments and assessed that a disqualification would be effective as it had been in the past (with only one exception in 2016), compared with a suspension of the appellant’s licence, for which there had been many breaches. I see no error in that analysis. Furthermore, the cycle of offending has been caused primarily by Mr Wooldridge continuing to speed when he is permitted to drive. That problem would not be assisted by granting the s 94 application.

[28]   In terms of the suggestion that Mr Wooldridge needs to be able to drive to resume working, I do not  consider  that  an  ability  to  drive  is  a  prerequisite  to Mr Wooldridge’s work as a builder. While Mr Rolland suggests that his particular offer might be contingent on that skill to drive a work van to and from worksites, he mainly seems to regard driving as “handy” for that purpose and commuting. For that and other building businesses, I expect there might be someone else on the crew who could drive if the work required it. In any event, Mr Wooldridge stops short of saying that he now intends to take up employment (whether with Mr Rolland or elsewhere) and will no longer be caring for his mother full time. Indeed, the opposite is suggested by his submission that he needs to be able to drive his mother to medical appointments and to conduct other errands. Therefore, I do not accept that this evidence is cogent or sufficiently exceptional to warrant admission post-sentence.

[29]   I  acknowledge  that  the  disqualification  order  causes  hardship  to   both Mr Wooldridge and his mother, but these fall within the usual inconveniences caused by a disqualification order, resulting in the necessity to arrange alternatives (such as taxis, buses, or assistance from family and friends). The sentencing Judge considered imposing such consequences as necessary, to respond to the nature of offending and to promote accountability, responsibility, and deterrence. I do not consider that the Judge placed improper weight on the high number of speeding offences in recent years. I reject the suggestion that low-level speeding is immaterial to the public interest considerations.

[30]   For the above reasons, the appellant has not satisfied me that the outcome reached by the sentencing Judge was manifestly excessive or wrong in principle.  Nor do I consider that an application under s 94 should be granted, taking into account the further material that Mr Wooldridge sought to introduce in this appeal.

Result

[31]The application to adduce fresh evidence on appeal is declined.

[32]The appeal is dismissed.

O’Gorman J