Bluegum v Police

[2021] NZHC 1284

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2021-463-34

[2021] NZHC 1284

BETWEEN

CHRISTOPHER BLUEGUM

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	1 June 2021
Appearances:	R Raukawa for appellant G Banuelos for the Crown
Judgment:	2 June 2021

JUDGMENT OF POWELL J

This judgment was delivered by me on 02 June 2021 at 2.30pm Registrar/Deputy Registrar

Date:

BLUEGUM v NEW ZEALAND POLICE [2021] NZHC 1284 [2 June 2021]

[1]                 On 25 March 2021, Judge Snell convicted, fined ($400) and disqualified the appellant, Christopher Bluegum, from holding or obtaining a driver’s licence for six months.1 Mr Bluegum had pleaded guilty to one charge of driving while his licence was suspended.2

[2]                 The offending for which Mr Bluegum was sentenced arose on 22 April 2020. He was stopped by Police after losing traction as he drove around a corner. Checks on the Police National Intelligence Application confirmed that Mr Bluegum had been suspended for three months on 29 January 2020.

[3]                 Mr Bluegum appeals Judge Snell’s refusal to grant his application made under s 94 of the Land Transport Act 1998 (“the Act”) to receive a community-based sentence instead of disqualification.

Section 94

[4]                 Section 94 of the Act allows for the Court to impose a community-based sentence in lieu of disqualification where an offender has previously been disqualified from driving and the Court considers such a sentence would be appropriate. The section 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

(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

1      Police v Bluegum [2021] NZDC 5883.

2      Land Transport Act 1998, ss 32(1)(c) and 32(3). Maximum penalty three months’ imprisonment or a fine not exceeding $4,500 and the Court must order the person to be disqualified from holding or obtaining a driver’s licence for six months or more.

(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.

[5]                 For s 94 to apply the offender must therefore have been previously ordered to be disqualified; the Court must decide whether disqualification is inappropriate having regard to the s 94(1)(b) factors; and lastly, the Court must determine if it would be appropriate to sentence the offender to a community-based sentence.

[6]                 A decision under s 94 is an exercise of the Judge’s discretion. This discretion is broad,3 and is exercised in accordance with the need to remove recidivist disqualified drivers from a cycle of offending where the imposition of yet another period of disqualification would likely only engender further offending. Section 94 has therefore been described as a “remedial provision” giving such offenders a chance to break the cycle by serving a different form of sentence.4

[7]                 Because of the discretionary nature of a decision under s 94, this Court has limited jurisdiction on appeal. It can only interfere with Judge Snell’s  decision if  Mr Bluegum can demonstrate that his Honour erred in principle, failed to take into account a material consideration, took into account an irrelevant consideration or was plainly wrong.5 It is not for this Court to find that the Judge placed undue weight on one factor or should have placed greater weight on another; the weight to be given to the individual factors is a matter for the sentencing Judge.6

The case for Mr Bluegum

[8]                 On behalf of the appellant, Ms Raukawa submits that Judge Snell erred in assessing the criteria under s 94. Ms Raukawa points out that s 94 applications can be

3      Te Aotanga v Police [2019] NZHC 1274.

4      Poona v Police [2018] NZHC 791 at [14].

5 At [17].

6 At [14].

granted in respect of offenders who are not in a cycle of offending.7 She submits that while the effectiveness of a previous order for disqualification is a consideration, it is not determinative. She argues that the fact he had breached his suspension in the current case demonstrates that the order not to drive did not have the desired effect on him. She submits that, all factors considered, his successful completion of a previous disqualification order should be regarded as neutral.

[9]                 Ms Raukawa further submits that another disqualification order would have a negative effect on Mr Bluegum. He had intended to enrol in a high wire course to engage in employment water blasting high rise buildings and had provided Judge Snell with an email from a potential employer. He also has caring responsibilities for his young children which he shares with his ex-partner, and instructed counsel that he would be unable to access his children without a licence. Finally, Ms Raukawa submits that the public interest consideration under s 94 is not engaged, as there is no indication in the summary of facts that Mr Bluegum’s driving was dangerous (in which case public interest will weigh in favour of disqualification).

Discussion

[10]In my view, the Judge made no error in declining Mr Bluegum’s application.

[11]              Section 94 should only support a variation from the norm where the personal circumstances of the offender, in particular any rehabilitative prospects, justify affording the offender an opportunity to break the cycle of circumstances contributing to the recidivist offending.8 This is because “too ready resort to s 94 could undermine the efficacy of disqualification as a penalty more generally”.9

[12]              In the present case, it is clear from the sentencing notes, as indeed Ms Raukawa ultimately accepted, that Judge Snell considered all of the components of s 94(1)(b) before declining the application. In particular:

7 Te Aotanga v Police [2019] NZHC 1274 at [18].

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

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

(a)The Judge observed in relation to s 94(1)(b)(i) that Mr Bluegum was not a recidivist disqualified driver and that on the contrary he had last been disqualified in 2006 for six months following a conviction for driving with excess breath alcohol.10 Rather than being non-compliant with the suspension notice, his Honour concluded Mr Bluegum had simply “chanced [his] luck” on the notice and been caught because of his poor manner of driving.11

(b)In terms of s 94(1)(b)(ii), Judge Snell noted that Mr Bluegum had in fact completed the 2006 disqualification without incident and concluded that it had been “immensely successful” for Mr Bluegum given that he had not been back before the Court for drink-driving or breaching any disqualification in the interim.12

(c)Likewise, in terms of s 94(1)(b)(iii) his Honour did not consider that six months’ disqualification would be excessive. Although at sentencing Mr Bluegum raised the prospect of completing training for employment, as Ms Raukawa accepted on appeal, no detail had been provided apart from a letter before the Court referring to the possibility of work some months before.13

(d)Finally, with reference to s 94(1)(b)(iv), Judge Snell did not consider that refusing to disqualify Mr Bluegum was in the public interest – in order for people to regard suspension notices for demerit points seriously, people who breach suspension should be disqualified as prescribed by statute. Moreover, Judge Snell noted that the reason Mr Bluegum was picked up on this occasion was because of bad driving albeit not particularly serious.14

10     Police v Bluegum [2021] NZDC 5883 at [6].

11 At [5].

12 At [7].

13 At [8].

14 At [9].

[13]              All of the conclusions reached by Judge Snell were clearly available to him on the evidence before the Court and there were no relevant matters not considered.  As I discussed with Ms Raukawa, Judge Snell’s conclusion that Mr Bluegum was not a recidivist disqualified driver was supported by the fact Mr Bluegum did not assert that he was flaunting the initial suspension but rather disputed he had been suspended or that he was not aware of it. Likewise, there was little information before Judge Snell on the possible consequences of disqualification for Mr Bluegum, and I observe that no further details of any proposed training or employment have been provided on appeal, still less any detail on any difficulties transporting children.

[14]              As a result, I accept Ms Banuelos’s submission on behalf of the Police that there is nothing special about Mr Bluegum’s situation which justifies the imposition of a community-based sentence instead of disqualification. Disqualification is the ordinary consequence for this type of offending and there is a public interest in favour of it being granted.15

[15]              Ultimately, I consider that the Judge did not err in declining to grant the s 94 application. Mr Bluegum’s circumstances did not justify a variation from the norm, the norm being the compulsory period of disqualification under s 32.

Decision

[16]The appeal is dismissed.

Powell J

15 Thomas v Police HC Tauranga CRI-2010-470-15, 13 May 2010 at [29].