Bartram v Police
[2019] NZHC 90
•7 February 2019
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE
CRI-2018-454-24
[2019] NZHC 90
BETWEEN LOGAN BARTRAM
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 4 February 2019 Appearances:
W Hawkins for the Appellant
R D Davies and E Pairman for the Respondent
Judgment:
7 February 2019
JUDGMENT OF COOKE J
[1] On 6 December 2018 Mr Bartram was sentenced by the District Court at Dannevirke on one charge of driving while disqualified.1 The Judge decided to impose a sentence of community work in relation to that charge. In addition he decided that it was inappropriate to impose a period of further disqualification in accordance with ss 32 and 94 of the Land Transport Act 1998, and that the period of community work should instead be increased. The Judge imposed a total sentence of 200 hours community work.
[2] The appellant appeals on the basis that the sentence was manifestly excessive. This is a first appeal under s 244 of the Criminal Procedure Act 2011, and under s 250 the appeal Court must allow the appeal if satisfied that:
1 Land Transport Act 1998, s 32(1)(a) and s 32(3), maximum penalty three months imprisonment,
$4,500 fine.
BARTRAM v NEW ZEALAND POLICE [2019] NZHC 90 [7 February 2019]
(a)for any reason, there is an error in the sentence imposed on conviction; and
(b)a different sentence should be imposed.
[3] A sentence appeal is an appeal against a discretion and only if there is an error of principle should the appellate court reconsider 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.2 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.3
Factual circumstances
[4] The relevant facts and circumstances were not fully set out in the Judge’s very brief decision, and neither were they fully apparent from the parties’ written submissions, or indeed the Court file. Counsel were able to provide me with some assistance during the hearing however, although Mr Hawkins explained that he had initially appeared for the appellant in his capacity as duty solicitor.
[5] Mr Bartram was 20 years old at the time of the offending. On 22 May 2018 he was disqualified from driving for a period of six months commencing on 18 May 2018. Neither counsel were able to tell me the reason for the original disqualification, although both surmised that it was likely to have been the result of an accumulation of demerit points. That does appear likely. Mr Bartram has only one other previous conviction in 2017 for offending in 2015 (receiving stolen property).
[6] The appellant was stopped by the police on High Street, Dannevirke on 5 November 2018, within the last month of the six months disqualification. When stopped he stated to police that he did not think he was disqualified anymore and that “WINZ told me I could resit my licence”.
[7] I was advised by counsel that the appellant is employed as a rural farm hand in a rural area some distance from Dannevirke. This work requires him to be working
2 B v R [2011] NZCA 331 at [9], citing May v May (1982) 1 NZFLR 165 (CA) at 170; and Lawrence v R [2011] NZCA 272 at [11].
3 Ripia v R [2011] NZCA 101 at [10].
for a significant period, followed by a rest period. Mr Hawkins explained that the appellant needed to be able to drive, including to more remote rural areas as part of that employment. Although that is not set out in the extract of the hearing before the Judge that had been made available, it is apparent that these details were discussed between counsel and the Judge, and that they formed the basis for the conclusion of the Judge that imposing a further period of disqualification was inappropriate.
[8] In any event the Court was making two separate determinations when deciding upon the appellant’s sentence. The first was to impose the sentence for the offence of driving while disqualified. The second determination arose from the fact that under s 32 the Court is required to order that the person be disqualified for six months or more for a first or second offence of driving while disqualified, but under s 94 the Court is empowered to impose a community-based sentence on the offender if disqualification would be inappropriate for the reasons set out in that section. Here the Judge decided that s 94 applied and that an additional period of community service should be ordered. This led to the overall sentence of 200 hours of community service.
Parties’ submissions
[9] Mr Hawkins for the appellant submits the end sentence of 200 hours of community service was manifestly excessive, and an ultimate sentence in the range of 60 to 80 hours was more appropriate, citing a range of previous decisions of the High Court in support. He argued there were no aggravating factors which would have warranted a longer sentence such as driver fault when he was apprehended. The appellant is young, and has a limited criminal history. This was the appellants first offence of driving whilst disqualified under s 32(3), yet the period of community work imposed was more suitable for an aggravated form of a third or subsequent charge under s 32(4). Finally, Mr Hawkins notes the appellant entered an early guilty plea and should have received a discount for this.
[10] Ms Davies for the Police submits a sentence of 60 to 80 hours would be manifestly inadequate when considering the end sentence includes community work in lieu of a disqualification. As this was the defendants first offence against s 32(1), the Judge was obliged to impose a mandatory disqualification of six months or more.4
4 Land Transport Act 1998, s 32(3).
The Judge exercised discretion pursuant to s 94 to impose a community based sentence in lieu of disqualification. Ms Davies relied on the decision of the High Court in Whyman v Police, where a 12-month disqualification was replaced with 120 hours of community work.5 She argued the usual range for a conviction of driving while disqualified of this kind would be 80 to 150 hours.6 A sentence of 200 hours’ community work, while stern, was not manifestly excessive, particularly where part of the hours is a substitute for an extended disqualification period.
Was the sentence manifestly excessive?
[11] In assessing whether the sentence imposed by the Judge was manifestly excessive, it is appropriate to compare the sentence imposed with other cases. Care is necessary when considering those cases. It is important to identify whether the sentence involves an additional period of community work as a consequence of the exercise of the s 94 discretion, the period of disqualification that the community service is replacing, as well as the nature of the offending and the other relevant circumstances. But within those variables, the desirability of equivalent treatment by the Courts is an important factor.
[12] The decision of Mallon J in Police v Body is an appropriate starting point. That judgment deals with five appeals heard together in New Plymouth, and addresses whether the s 94 discretion had appropriately been applied, and the appropriate periods of community work imposed instead of disqualification.7 By way of summary the High Court reached the following conclusions on the five cases as follows:
(a)Body: a guilty plea to driving during one year disqualification after being stopped for a minor traffic infringement. There were reasonably lengthy previous convictions, including one previous conviction for driving while disqualified, and convictions for driving with excess breath/blood alcohol. Mr Body was 44 years of age at the time of the offending. A sentence of 50 hours’ community work was imposed, and his motor vehicle was confiscated. The police appeal was dismissed —
5 Whyman v Police [2014] NZHC 2889.
6 Laracy v Police [2016] NZHC 2615.
7 Police v Body [2013] NZHC 1586.
the Judge was not wrong to apply s 94 and impose 50 hours of community sentence.
(b)Komene: a guilty plea for driving whilst disqualified for six months. The defendant was aged 37 years and had previous convictions of for driving with excess breath alcohol and careless driving. 40 hours’ community service was imposed with no further disqualification. The police appeal was dismissed.
(c)Christenson: a guilty plea to driving during five years’ disqualification in approximately third year of disqualification. Numerous previous convictions including four for driving while disqualified, driving with excess blood alcohol, and dangerous or reckless driving (including driving dangerously causing death or injury). A sentence of 100 hours’ community work, with no further disqualification was imposed. The remaining period of initial disqualification still applied. The police appeal that s 94 was not properly applied, and the sentence manifestly inadequate, was dismissed.
(d)Martin: a guilty plea to driving while disqualified for six months arising from a dangerous driving conviction. She was 37 years old with other unrelated previous offences. She was sentenced to 40 hours’ community work with no further disqualification. Police appeal contending that she should also have been disqualified for six months was dismissed on the basis there was no error shown in the exercise of the discretion.
(e)Capstick: a guilty plea for driving on three dates in October during one year disqualification. He was aged 19 years with three previous convictions of driving whilst disqualified. 40 hours’ community work was imposed with no further disqualification. There was no other offending. Police sought a sentence of imprisonment on appeal. The appeal was dismissed on the basis that it was not manifestly inadequate.
[13] There are then a series of other High Court subsequent decisions potentially relevant to establishing the appropriate range:
(a)Witana v Police:8 the appellant was 23 years old at the time of the offence of driving whilst disqualified. This followed a pattern of repeated offences of driving while disqualified, as well as two convictions of driving with excess blood alcohol. A sentence of 80 hours’ community work was imposed, but the Judge declined to exercise the s 94 discretion and also disqualified him for a year. The High Court held that the s 94 discretion should have been exercised, and increased the sentence from 80 hours to 150 hours.
(b)Laracy v Police:9 a guilty plea to a second offence of driving while disqualified for six months, with initial disqualification imposed for driving with excess breath alcohol. He had no other convictions and was 23 years of age. The Judge imposed a sentence of 150 hours’ community work, with a further 200 hours rather than one year disqualification under s 94. The total of 350 hours was held to be manifestly excessive compared to previous authorities, with Williams J noting that the “usual range on the cases seems to be around 80–150 hours”.10 Appeal allowed and a sentence of 150 hours was substituted.
(c)Whyman v Police:11 a guilty plea to driving whilst a licence was suspended for excess demerit points. He had two previous convictions for driving while disqualified, and 22 infringement notices for speeding offences. He was sentenced to 80 hours’ community work, but the Judge declined to apply s 94 and disqualified him for one year and one day. On appeal at the High Court Lang J accepted that there were circumstances that warranted the application of s 94 and replaced the one year disqualification with a further 120 hours’ community work.
8 Witana v Police [2014] NZHC 1963.
9 Laracy v Police, above n 6.
10 At [21].
11 Whyman v Police, above n 5.
(d)Tuhi v Police:12 a guilty plea to driving whilst disqualified following a pattern of previous offending of driving while disqualified with initial disqualification arising from excess blood alcohol offending. She had also accumulated demerit points and eight offences of driving when unaccompanied with accumulated demerit points. The Judge imposed a sentence of 40 hours’ community work, but declined to apply s 94 and disqualified her for one year. On appeal Clifford J held that there were particular circumstances that meant that s 94 should have applied, and increased the number of community work hours from 40 to 60 hours.
Was the sentence here manifestly excessive?
[14] There is no challenge in the present case to the application of s 94, and based on what I have been advised there appear to have been good reasons for its application.
[15] In terms of the sentence the Judge’s very brief sentencing notes make no reference to previous decisions, or an appropriate range that might apply. A busy District Court may not necessarily be expected to do this expressly, but it is important that the decision nevertheless falls within the range of previous cases.
[16] I accept Mr Hawkins’ point that 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. But even taking into account the variation it seems to me that the sentence imposed here is well outside the range of community service periods imposed for driving while disqualified, and imposed in substitution for further disqualification, as revealed by the authorities. It is much longer than the periods upheld in the cases assessed in Body, which might suggest a total sentence of 40 hours. Even the longer periods of community work that had been imposed in the later cases were shorter than the period imposed here. In Whyman the total sentence was 200 hours, but that was in circumstances of two previous convictions for driving while disqualified, 22 previous infringement notices, and in substitution for a one year further suspension period. In Witana a total of 150 hours was imposed when there was a pattern of repeated offending, with 70 hours imposed in lieu of a one year suspension.
12 Tuhi v Police [2015] NZHC 516.
[17] Given that the decision in Body involved five cases, it seems to me to provide the best guidance for the appropriate range. It might be said 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 might also be a starting point for breach of a six- month disqualification period concerning a first or second offence without aggravating circumstances, although this will be heavily influenced by the circumstances.
[18] The present case seems to me to be at the lowest end of offending. Mr Bartram is young and he has settled employment. He was driving whilst disqualified in his last month of disqualification. There are no concerning features of his driving at the time alleged (such as such as driver fault). It is his first offence with the initial disqualification apparently arising from the accumulation of demerit points. He has employment as a farm labourer, and it appears likely he will serve his community service periods during time-off periods under his work arrangements. In the circumstances it seems to me that the appropriate sentence would have been 40 hours’ community service, roughly corresponding to 20 hours for the original offending, and 20 hours in lieu of the further period of six months’ suspension. I take into account that there would have been reasons for the original suspension, which may well have arisen because of demerit points. 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, and it brings this case in line with those addressed in Body.
[19] The appeal is allowed and the sentence of 200 hours’ community work is replaced with a sentence of 40 hours’ community work.
Cooke J
Solicitors:
Bramwell Bate Lawyers, Hastings Crown Solicitor, Palmerston North
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