Blackburn v Police

[2018] NZHC 3199

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2018-409-000082

[2018] NZHC 3199

BETWEEN

STEPHEN THOMAS BLACKBURN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

29 November 2018

Appearances:

J Tupaea for the Appellant

S Mallett for the Respondent

Judgment:

6 December 2018

JUDGMENT OF NATION J

Introduction

[1]    Stephen Blackburn pleaded guilty to a charge of driving while disqualified, third or subsequent. He indicated he wanted to make an application to replace his mandatory disqualification with a community-based sentence under s 94 Land Transport Act 1998. However, no application was filed and served in accordance with the Judge’s directions. At sentencing, Judge Garland refused to grant an adjournment for the application to be heard and proceeded to disqualify Mr Blackburn for the mandatory one year, along with three months’ community detention and nine months’ supervision. The car was also confiscated.

[2]    Mr Blackburn appeals the disqualification imposed. He submits that the Judge erred in refusing to adjourn the proceedings for the s 94 application to be heard, and in refusing to substitute the disqualification for a community-based sentence under s

94. The appeal should be dismissed.

BLACKBURN v POLICE [2018] NZHC 3199 [6 December 2018]

Facts

[3]    On 19 June 2017, Mr Blackburn was disqualified from driving for a period of one year and one day for driving with excess breath alcohol, third or subsequent.

[4]    At 10.15 am on Thursday 5 October 2017, Mr Blackburn was stopped by Police driving on Heaton Street, Rotherham. His explanation was that he was driving to the medical centre to get his daily dose of Suboxone, used to treat opioid addiction.

District Court decision

[5]    Judge Garland noted that, when Mr Blackburn was remanded for sentencing, he indicated he wanted to make an application under s 94. The Judge had directed that evidence and submissions on that application had to be filed and served by 15 December 2017 and the police then had until 10 January 2018 to respond. These directions were not complied with and no application was filed.

[6]    Mr Blackburn came before Judge Garland on 19 January 2018 for sentencing. Mr Dickson, then counsel for Mr Blackburn, sought the Judge’s approval to file affidavit evidence that day. Judge Garland declined his request, indicating that to allow it would require an adjournment. The Judge said:1

… too often now these applications are indicated, then timetabled, and then when it comes to the sentencing date nothing has been filed. The offenders then request the Court for another adjournment to do what they were directed to do long before that day. In my view the interests of justice require this sentencing to proceed today.

[7]    The Judge then proceeded with sentencing, discussing the pre-sentence report, Mr Blackburn’s attitude to the offending, his potential employment, his family and his prior convictions. The Judge also noted that this is Mr Blackburn’s fourth conviction for driving while disqualified, third or subsequent, and the last time he was before the Court he did not receive the mandatory disqualification. It is unknown whether that was due to a s 81 application or a s 94 application but, regardless, it was a “significant indulgence” by the Court.

1      Police v Blackburn [2018] NZDC 19473 at [3].

[8]    Taking all of this into account, the Judge disqualified Mr Blackburn for the mandatory one year, along with three months’ community detention and nine months’ supervision. His car was also confiscated.

Principles on appeal

[9]    Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court 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 It is only appropriate for this court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.3

Submissions

Appellant’s submissions

[10]Mr Tupaea, for Mr Blackburn, submitted that the Judge erred by:

(a)        not granting an application to adjourn for Mr Blackburn to file affidavit evidence or failing to consider the affidavit counsel had ready to file; and

(b)       not substituting a community-based sentence for disqualification pursuant to s 94 of the Land Transport Act.

[11]   While Mr Tupaea acknowledged that the decision whether to adjourn is discretionary and will not lightly be disturbed on appeal, he submits that counsel in the District Court had the affidavit prepared and ready to file at sentence. Being only nine paragraphs long, counsel could have quickly taken the Judge through the contents during the course of oral submissions. Mr Tupaea thus submitted that it was in the interests of justice that the Judge either adjourn or accept the affidavit for filing at sentencing.

2      Criminal Procedure Act 2011, ss 250(2) and 250(3).

3      Ripia v R [2011] NZCA 101 at [15].

[12]   Mr Tupaea submitted that the disqualification period should be replaced with a community-based sentence under s 94 because of Mr Blackburn’s personal circumstances. Most significantly, Mr Blackburn must travel each day to a medical centre approximately 30 kilometres away to get his daily dose of Suboxone to treat an opioid addiction. Mr Blackburn’s wife usually drives him, along with their children as they are too young to be left alone. This means the family usually has to leave the house at 5.00 am. On the day Mr Blackburn was caught driving, his wife was away and he could not see any other option.

[13]   In light of the hardship Mr Blackburn and his family face due to the disqualification, the fact that his driving was not dangerous and there was little risk to the public, Mr Tupaea submitted that the s 94 application should be granted and a community-based sentence be imposed instead.

Respondent’s submissions

[14]   Mr Mallett, for the police, submitted that the appeal should be dismissed on multiple grounds: that it was filed out of time; that there is no jurisdiction to appeal a mandatory sentence; and that there was no error as the Judge was entitled to refuse an adjournment or to hear the application on the spot.

[15]   Mr Mallett noted that the period Mr Blackburn had to appeal this sentence expired on 16 February 2018 and the Notice of Appeal was not filed until 3 September 2018. He submitted there is no good reason why this appeal has been filed so late and, in any event, the appeal is without merit.

[16]   Secondly, Mr Mallett noted that, under s 244 of the Criminal Procedure Act, a person is entitled to an appeal against sentence unless that sentence is one “fixed by law”. Adams on Criminal Law states:4

The phrase “fixed by law” means a mandatory sentence; for example, disqualification from driving under s 56(3)(b) of the Land Transport Act 1998 or the requirement under s 86D of the Sentencing Act 2002 to sentence an offender who is convicted of a stage-3 offence other than murder to the maximum term of imprisonment prescribed for the offence.

4      Simon France (ed) Adams on Criminal Law – Procedure (online loose-leaf ed, Thomson Reuters) at [CPA244.03].

[17]   As such, Mr Mallett submitted that the mandatory disqualification imposed on Mr Blackburn was a sentence “fixed by law” and there is thus no jurisdiction to appeal the sentence under s 244.

[18]   Before me, Mr Mallett submitted it was not necessary to rely on this ground and recognised there could be an issue as to whether disqualification was mandatory under s 56(3)(b) when s 56(6) provides “the imposition of a mandatory disqualification under this section is subject to s 81 (which allows a court not to order disqualification for special reasons relating to the offence)”. It is not necessary for me to decide the point.

[19]   Mr Mallett submitted that there was no error in the Judge refusing to grant an adjournment or failing to read the further affidavit evidence sought to be handed up on the day of the hearing in contravention of the timetabling orders. The Judge had discretion to act as he did and these decisions should not lightly be disturbed on appeal. Mr Blackburn was legally represented and yet failed to comply with the timetabling orders, failed to inform the Court before the hearing of his intention to seek an adjournment or belatedly file evidence and submissions, and failed to give any reason why he failed to do so. Even on appeal, no submissions have been made explaining Mr Blackburn’s conduct.

[20]   Finally, Mr Mallett submitted that Mr Blackburn has already completed the three-month sentence of community detention and has nearly completed the nine months of supervision. In written submissions, Mr Mallett had suggested there was only three months left of the period of disqualification however he clarified that, because of a prior period of disqualification, the period of disqualification against which he is appealing runs through until June 2019.

Analysis

Out of time

[21]   After discussing the principles that apply when considering whether to grant an extension of time, the Court of Appeal in R v Slavich concluded:5

5      R v Slavich [2008] NZCA 116.

[14] In the simplest terms, extension of time applications will routinely reduce to two heads. Firstly, why was the appeal filed late? Secondly, what, if any merit, does the prospective appeal appear to have?

[22]   The Court also held that the onus is on an appellant to provide sufficient information for the Court to determine whether it is in the interests of justice for leave to be granted.6

[23]   Mr Blackburn has not explained why the Notice of Appeal was filed so late. On the Notice of Appeal, Mr Tupaea mentioned s 81 of the Land Transport Act, another way for the disqualification to be quashed, and said that the appeal was out of time because Mr Blackburn “was not aware [the] section was available at sentence”. However, the submissions made focus exclusively on the s 94 pathway, which Mr Blackburn was evidently aware of at sentence given timetabling orders were made for him to make such an application.

[24]   Mr Tupaea was not counsel for Mr Blackburn at the time he was sentenced. He had not been able to provide any explanation for the failure to file documents as directed before sentencing or the delay in filing an appeal. He acknowledged he had received instructions to file the application for leave to appeal some four weeks before the application was filed on 3 September 2018. There has thus been a significant unexplained delay in Mr Blackburn filing his appeal.

[25]   I am also not satisfied that there was any error in the Judge refusing to read the affidavit which Mr Blackburn wished to put before the Court on his sentencing. The Judge had a discretion to act as he did. In the interests of justice, generally for those who appear before the Court, it was understandable the Judge chose to show that directions as to the timetabling of submissions and affidavits are important and need to be observed.

[26]   Mr Blackburn wished to put before the Court a nine paragraph affidavit. It may not have taken much time for the Judge to read that affidavit but he would have had to refer it to the prosecutor. A copy of the intended affidavit was attached to Mr Tupaea’s submissions. The email referred to Mr Blackburn’s wife not being available

6 At [13].

to drive him to the health centre. That was a matter in respect of which the Police would have been quite entitled to make enquiry. For them to have the opportunity to do that would have required an adjournment of the sentencing.

[27]   If the Judge had been willing to read the affidavit and proceed with the sentencing, it is likely that he would have still found it necessary to impose the one year period of disqualification that is the normal penalty for what was his fourth offence of driving while disqualified.

[28]   In his affidavit and through submissions, Mr Blackburn explanation for the offending was that he was driving to the medical centre to obtain a daily dose of the medication which he needs to cope with symptoms of opiate withdrawal. In his affidavit, he was wanting to inform the Court that he drove because his wife was in town and nobody else was available. However, in his affidavit, he referred to the way he was now benefiting from the support of “our church, friends and family”. There was no explanation in the affidavit as to why he had not been able to obtain the assistance he needed from those people or others.

[29]   In his affidavit, Mr Blackburn wished to inform the Judge that, with the employment now available to him, his wife and three young children were having to take him to work, a 30 kilometre trip each way, with them having to leave home at

5.00 am. There was no mention of his having to be driven by family when finishing work.

[30]The probation officer’s report said Mr Blackburn:

… did not express remorse in relation to his current offending, nor was he able to demonstrate any insight into strategies he could have employed to avoid the circumstances that led to his offending.

[31]   In his affidavit, Mr Blackburn also wanted to tell the Court of how he had turned his life around and of the support he was now taking advantage of to get his life in order. The Judge gave him credit for this in not imposing a sentence of imprisonment which he could have received and imposing a sentence of community detention with supervision. He also imposed the minimum period of disqualification for this offence.

[32]   In R v Mohammed, the Court of Appeal held there had been no error in a trial Judge refusing to adjourn a trial where there was a risk that, with the refusal of an adjournment, Mr Mohammed would be left unrepresented.7 The Court of Appeal held the Judge refusing the adjournment was entitled to have regard to whether Mr Mohammed was seeking to manipulate the system by his uncooperative behaviour, and also “the public interest in the prompt and efficient administration of justice”.

[33]   In Mizsey v Police [2017] NZHC 3130, Katz J held there had been no error when the sentencing Judge refused to adjourn the sentencing to allow documents to be filed in support of a discharge application when those documents had not been filed within the time directed.8 Katz J held the Judge was entitled to take into account that no documents had been filed in the proceeding for seven weeks or so, no explanation was provided for that failure and the prospects of an application for discharge succeeding appeared to be low.

[34]   Here, there was a failure to file documents as directed. There was no explanation for that delay. Had the documents been filed, the prospects of avoiding a disqualification would have been low. There has now been a delay without explanation in filing of an application for leave to appeal.

[35]   In the absence of any real explanation for the delay in filing an appeal, to be allowed the proposed appeal must be “overwhelming on the merits”.9 For the reasons set out, this is not such a case.

[36]In all these circumstances, the application for leave to appeal is declined.

Solicitors:

J Tupaea, Barrister, Christchurch Raymond Donnelly & Co., Christchurch.

7      R v Mohammed [2016] NZCA 254.

8      Mizsey v Police [2017] NZHC 3130.

9      R v Latifi [2007] NZCA 372 at [4].