BRIAN JOHN COOKE AND NEW ZEALAND POLICE
[2024] NZHC 3089
•23 October 2024
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CRI-2024-488-86
[2024] NZHC 3089
BETWEEN BRIAN JOHN COOKE
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 15 October 2024 Appearances:
A T Tupuola for Appellant via VMR
B M Bosomworth for Respondent via VMR
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:
Ally Tupuola, Barrister, Kerikeri
Marsden Woods Inskip Smith, Whangārei
COOKE v NEW ZEALAND POLICE [2024] NZHC 3089 [23 October 2024]
[1] This is an appeal against the sentence of Judge P Davey.1 On 16 August 2024, the Judge sentenced Mr Cooke on three separate charges of driving while suspended (third and subsequent), and on another charge of failing to answer District Court bail.
[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 Cooke to five months’ home detention for the charges of driving while disqualified and also directed disqualification for 12 months. He convicted and discharged Mr Cooke on failing to answer District Court bail (that aspect is not challenged on appeal).
[3] The appellant challenges the decision to decline the s 94 application and contends that a community-based sentence should have been imposed instead of a disqualification order, in all of the circumstances of this case. The appellant contends that an end sentence of community work and supervision is the least restrictive outcome that is appropriate in the circumstances.
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—
1 New Zealand Police v Cooke [2024] NZDC 19592.
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].
(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
(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.
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).
[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.
[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 3 May 2024, the appellant drove on South Highway 1, Hūkerenui to Kerikeri, to visit a friend. He was stopped for speeding and found to be a suspended driver.
[11] On 5 June 2024, the appellant was observed driving into the Whangārei District Court carpark for a Court hearing.
[12] On 18 June 2024, the appellant failed to turn up to Court. He was aware of his court hearing, but says he had no money to fill up the car so that he could travel from West Auckland to the Whangārei District Court.
[13] On 20 June 2024, the appellant drove from West Auckland to Whangārei and was stopped by police in Riverside at around 3 am. The appellant says that he was driving so that he could make a voluntary appearance at Court to see if he could resolve his matters that day. The respondent contends that driving at 3 am is inconsistent with the alleged purpose of attending a court hearing.
Application to adduce further evidence
[14] The appellant sought leave to rely on two new pieces of evidence for the purposes of the appeal.
7 Wilson v Police [2014] NZHC 3028 at [12].
8 Parata v Police [2016] NZHC 3026 at [10].
[15] The first is a letter from Mr Cooke describing that his doctor is about 30 kms away from his home address, and the nearest bus stop is about 2.5 kms away. The supermarket is 3 kms away and the probation department is 8.5 kms away. He also describes his living arrangements with an elderly friend who has severely compromised mobility and cannot shop for himself. Mr Cooke says he has his own mobility problems due to back injuries, meaning he is unable to walk to the nearest public transport. He has a daughter who lives nearby who tries to assist when she is available, but she has four children including a young infant, so her availability tends to be restricted to the hours between 10 am and 2 pm.
[16] The second is a letter signed by a nurse at a medical practice called “The Doctors Red Beach”. It describes injuries that Mr Cooke sustained from a fall from a horse during June 2024 (knee and ankle sprains, and supra-clavicular joint tenderness on the right side). It also incidentally has some notations at the end referring to unclassified back pain problems, but the letter is not directed at those issues.
[17] The respondent opposes this further material being admitted on the grounds that it fails to meet the necessary requirements:9
(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] In particular, the medical letter is credible but not fresh, nor is it cogent or material to the s 94 application. It does not contain any evidence about any impact on the appellant’s mobility or the extent to which he requires ongoing medical treatment.
9 Orchard v R [2019] NZCA 529, [2020] 2 NZLR 37 at [23], quoting Mark v R [2019] NZCA 121 at [16].
[19] In terms of the appellant’s letter, this is not fresh, nor are the assertions about medical conditions credible if not supported by other independent medical evidence.
[20] I have read both documents and do not ultimately find them particularly cogent for the issues for determination on appeal. Leave to adduce fresh evidence on appeal is therefore declined. I accept that neither of the documents refers to any fresh evidence that was unavailable at the time of sentencing, so these documents do not meet the tests specified in Orchard v R.10 For convenience, I explain why they are not cogent in my substantive reasons below.
Submissions by the parties
[21] The appellant was (and remains) eligible to apply under s 94 of the LTA because he has been previously disqualified from driving and faced a mandatory sentence of disqualification.11
[22] The appellant’s history shows a continuous disregard for driving rules and restrictions. These are the seventh, eighth and ninth convictions for either driving while suspended or driving while disqualified. He has been suspended from driving due to excess demerits on four prior occasions. Demerit points were applied for speeding on 12 prior occasions. The appellant also has the following prior convictions:
(a)failure to stop for red and blue flashing lights (x4);
(b)driving a motor vehicle in a dangerous manner (x3); and
(c)operating a motor vehicle recklessly.
[23] The appellant says he is on a sickness benefit and requires his licence to be able to drive around to run errands. He is 54 years old and says (without any supporting medical evidence) that he has two prolapsed discs and a broken back. Although his daughter and friend have been assisting with his transport needs and
10 Orchard v R, above n 9.
11 Land Transport Act 1998, s 94(1)(a).
running errands while awaiting the conclusion of his current court matters, he is concerned that the disqualification puts him in a difficult position should he be required to drive in the case of any emergency with his health or family. He wishes to drive to the supermarket to shop for himself and his elderly friend, to attend medical appointments, and to carry out other errands. His address is relatively rural, making driving the most practical form of transport given his back injuries. He seeks to retain his licence to remove himself from a “wheel of reoffending”, and to ensure that he is able to drive legally on public roads. He submits that the public interest would not be offended if a community-based sentence were imposed in lieu of disqualification.
[24] The respondent opposes the appeal and submits that an evaluation of all the circumstances of the case and the appellant favour disqualification. Although the appellant has a history of continuous disregard for driving rules, it is not a case where the defendant has been subject to a long period of disqualification and is unable to break that cycle. The licence suspension giving rise to the current offending was imposed on 3 April 2024 for a relatively short period of three months due to excess demerit points. In fact, the appellant appears to have complied with his most recent disqualification order imposed on 22 May 2017, which was also coupled with a sentence of home detention.
[25] In terms of the likely effect on the offender, this is not a situation where there is a risk to employment or obstacles to childcare that would typically be significant in a s 94 assessment. While the appellant contends that he is unable to walk 2.5 kms to the nearest bus stop because of his back injuries, no medical evidence has been adduced to substantiate that. In fact, the letter from the medical practice seems to indicate that he does have a level of mobility sufficient to ride horses. In any event, the consequences are merely the usual inconveniences caused by a disqualification order, resulting in the necessity to arrange alternatives (such as taxis, buses, assistance from family and friends, or other solutions such as home deliveries).
[26] The respondent submits that the public interest favours disqualification given that his previous convictions also extended to speeding, driving a motor vehicle in a dangerous manner, and operating a motor vehicle recklessly. Disqualification is consistent with the sentencing purposes of promoting accountability and a sense of
responsibility for the offending, denunciation and deterrence, and public protection. The reasons for Mr Cooke wanting the substitution of a community-based sentence are based on convenience without any compelling factor that would outweigh these considerations.
Analysis
[27] I agree with the submissions of the respondent that the likely effect on Mr Cooke and the hardships thereby caused do not outweigh the other public interest factors and the purposes of promoting accountability, responsibility, denunciation and deterrence.
[28] As noted in Tailor v Police,12 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 disqualified from driving obey those orders.13 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.
[29] I am not satisfied that Mr Cooke faces any real impediments to attending to his medical needs, appearing at court fixtures, and obtaining shopping supplies. There is an inconsistency in Mr Cooke seeking to adduce evidence about sprains he incurred falling from a horse, without seeking to adduce medical evidence about the extent to which his back injury requires any ongoing treatment or prevents him from walking to his nearest bus stop. In any event, other means of transport could be arranged, including a taxi from his house to the nearest bus stop.
12 Tailor v Police HC Auckland CRI-2009-404-322, 7 December 2009.
13 At [25].
[30] I agree with the analysis of the sentencing Judge that Mr Cooke’s previous driving history does not indicate that it is in the public interest to grant the application under s 94 to enable him to drive, given the danger this has previously occasioned from his speeding and other breaches. This would appear to give an unfair advantage to a non-compliant offender who has a history of presenting a danger to the public by his driving. In my view, granting the application in these circumstances would also undermine the efficacy more generally of disqualification as a penalty.
[31] Accordingly, I see no error in the approach taken by the sentencing Judge based on the material before the Court at that time. Nor do I consider that an application under s 94 should be granted, taking into account the further material that Mr Cooke sought to introduce in this appeal.
Result
[32]The application to adduce fresh evidence on appeal is declined.
[33]The appeal is dismissed.
O’Gorman J
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