Broadhurst (aka Erikson) v Police
[2021] NZHC 2433
•16 September 2021
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2021-409-000090
[2021] NZHC 2433
BETWEEN CASEY JAMES BROADHURST
(aka Casey James ERIKSON) Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 12 August 2021 Appearances:
G D Fletcher for the Appellant
J E Lancaster for the Respondent
Judgment:
16 September 2021
JUDGMENT OF NATION J
Introduction
[1] Mr Broadhurst was charged with driving while suspended third or subsequent.1 He appeared before Judge Couch in the District Court on 23 June 2021 for sentencing. The Judge sentenced Mr Broadhurst to community detention for six months and disqualified him from holding or obtaining a driver licence for one year and three months from that day.2
[2] Mr Broadhurst appeals the disqualification aspect of this sentence. This is on the basis the District Court Judge dismissed his application under s 94 Land Transport
1 Land Transport Act 1998, s 32(1)(c) and 32(4), maximum penalty two years’ imprisonment or
$6,000 fine.
2 Police v Broadhurst [2021] NZDC 13260.
BROADHURST v POLICE [2021] NZHC 2433 [16 September 2021]
Act 1998 (the Act) for a community-based detention in lieu of disqualification under a mistaken belief that Mr Broadhurst could then apply for a limited licence.
Facts
[3] On 13 April 2020 Mr Broadhurst’s driver licence was suspended for three months after he accrued in excess of 100 demerit points. Those points were incurred following four incidents of speeding and two of using a mobile phone while driving. The consequences of driving while suspended were explained to Mr Broadhurst.
[4] On 8 May 2020 at 5.10 pm, Mr Broadhurst was stopped by Police who established that he was suspended from driving. Mr Broadhurst knew he was suspended.
District Court decision
[5] The Judge first noted Mr Broadhurst’s 12 previous convictions for driving while disqualified or suspended, and his four similar offences as a youth. He accepted the most recent conviction of this nature was from 2014. The Judge adopted a starting point of 12 months’ imprisonment. After taking into account personal aggravating and mitigating factors, the Judge ultimately commuted this to six months’ community detention with a curfew that allowed Mr Broadhurst to go to work but, coupled with this, was the 15 months’ disqualification.
[6] In the course of his decision, the Judge noted this was the seventh time Mr Broadhurst’s licence had been suspended for excess demerit points and that he was “rapidly reaching the point where [he] simply should not be on the road at all ever”.3 The Judge went on to note that Mr Broadhurst said he had started a business that requires him to travel to multiple worksites. The Judge was reluctant to negatively affect this business and its employees, so imposed a sentence of community detention.
[7] In his sentencing remarks, the Judge did not discuss s 94 of the Act, which allows a community-based sentence to be imposed in lieu of disqualification in certain circumstances.
3 At [6].
Principles on appeal
[8] 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 there has been an error in the imposition of the sentence and that a different sentence should be imposed.4 As the Court of Appeal mentioned in Tutakangahau v R, quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.5 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.6
Submissions
[9] Mr Fletcher, counsel for Mr Broadhurst, explained this is a narrow appeal on whether Mr Broadhurst should have been ordered to undertake community work in lieu of disqualification under s 94 of the Act.
[10] Mr Fletcher said a s 94 application had been filed, together with a supporting affidavit. Although not mentioned in the District Court decision, Mr Fletcher relays Mr Broadhurst’s understanding that the s 94 application had been dismissed on the basis that Mr Broadhurst could apply for a limited licence.
[11] Mr Fletcher submitted the Judge mistakenly believed Mr Broadhurst could apply for a limited licence under s 103 of the Act and, on this basis, disqualified him from driving. He explained that Mr Broadhurst is barred from doing this because he pleaded guilty to a charge under s 32(1) of the Act.
[12] Because of this alleged error, Mr Fletcher submitted this matter should be remitted back to the District Court to be reconsidered in light of the fact that Mr Broadhurst cannot apply for a limited licence. He submitted this is an appropriate
4 Criminal Procedure Act 2011, ss 250(2) and 250(3).
5 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
6 Ripia v R [2011] NZCA 101 at [15].
avenue because there have been changes in Mr Broadhurst’s circumstances that were not reflected in the affidavit he swore approximately eight months ago.
[13] Alternatively, Mr Fletcher submitted it was open to this Court to consider the matter de novo if it considers it has sufficient information to do so.
[14] For the Crown, Ms Lancaster submitted it was not clear the Judge’s decision had been influenced by an error over the availability of a limited licence. She submitted the disqualification imposed was appropriate given Mr Broadhurst’s offending history.
Discussion
[15] I accept that Mr Broadhurst could not apply for a limited licence following his disqualification for driving while suspended.7 Section 103(2) reads:
103 Persons who may apply to court for limited licence
…
(2) The following persons may not apply under this section for an order under section 105 authorising the grant of a limited licence:
(a)a person who is disqualified from holding or obtaining a driver licence by an order made under section 65 (which relates to repeat offences involving alcohol or drugs):
(b)a person who is disqualified from driving a vehicle being used in a transport service (other than a rental service) by virtue of section 63, if the limited licence would authorise the person to drive a vehicle being used in a transport service (other than a rental service):
(c)a person who is disqualified from holding or obtaining a driver licence by an order made on his or her conviction for an offence against section 32(1) (which relates to driving while disqualified or contrary to a limited licence):
(d)a person who is disqualified by an order made on his or her conviction—
(i)for an offence against any of sections 35, 36, 38, and 39 (which relate to reckless or dangerous driving, careless or inconsiderate driving causing injury or death, and failing to stop after an accident); or
7 Section 103(2)(c).
(ii)for an offence against any of sections 56, 57A, 58, 60, 61, and 62 (which relate to offences involving alcohol or drugs); or
(iii)for an offence against section 33(1) (which relates to applying for or obtaining a driver licence while disqualified from doing so); or
(iv)for an offence against a provision of the Transport Act 1962 that corresponds to an offence specified in any of subparagraphs (i) to (iii)—
committed within 5 years after the commission of any other offence specified in this paragraph and arising from a different incident (whether or not both offences are of the same kind, regardless of when convictions were entered for those offences):
(e)a person who—
(i)is subject to an alcohol interlock sentence under section 65AC; or
(ii)would have been subject to an alcohol interlock sentence but an exception described in section 65AB(2) applied:
(f)a person in respect of whom a driver licence stop order is in effect.
[16] In s 103, s 32(1) is explained as relating “to driving while disqualified or contrary to a limited licence”. It is however the preceding words in s 103(2)(c) which must be given effect to. The explanation in brackets does not qualify the meaning of those preceding words.8
[17]Section 32(1) of the Land Transport Act states:
32 Contravention of section 5(1)(c)
(1) A person commits an offence if the person drives a motor vehicle on a road—
(a)while disqualified from holding or obtaining a driver licence; or
(b)contrary to an alcohol interlock licence, a zero alcohol licence, or a limited licence; or
(c)while his or her driver licence is suspended or revoked.
[18] Mr Broadhurst has now been disqualified for driving while his licence was suspended. He is thus not able to apply for a limited licence.
8 Smith v Police HC Auckland CRI-2010-404-398, 11 March 2011; Misa v Police HC Auckland CRI-2010-404-384, 2 November 2010; Cowan v Police [2016] NZHC 3012.
[19] Both counsel acknowledge the central issue is whether Mr Broadhurst should have been sentenced to a community-based sentence rather than disqualification. Section 94 of the Act sets out the circumstances in which this can be done, as follows:
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
(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.
(2)Despite any provision of this Act that requires a court (in the absence of special reasons relating to the offence) to order a person convicted of an offence to be disqualified from holding or obtaining a driver licence, the court may instead make an order referred to in subsection (3) if this section applies.
(3)If the court sentencing an offender determines under this section not to make an order of disqualification,—
(a) the court must impose a community-based sentence on the offender; and
(b) the imposition of such a sentence does not limit or affect the power of the court to impose any other sentence for the offence that, in accordance with the provisions of the Sentencing Act 2002, it may impose in addition to the community-based sentence; and
(c) in determining the appropriate sentence to be imposed on the offender in respect of the offence, the court must take into account the gravity of the offence and the fact that the offender would otherwise have been liable to disqualification from holding or obtaining a driver licence.
(3A) For the purposes of subsection (3)(a), the court may impose a sentence of supervision or intensive supervision as a community- based sentence if—
(a) that sentence is appropriate; and
(b) a suitable programme is available; and
(c) the offender attends a suitable programme.
(4)This section does not apply if—
(a) section 63 or section 65 applies; or
(aa) an alcohol interlock sentence has been ordered under section 65AC(1); or
(b) the offender is prohibited from applying for a limited licence under section 103(2)(a), (b), or (d).
[20] The substitution of a community-based sentence for what would otherwise have been a period of disqualification is not available for an offender who is prohibited from applying for a limited licence under s 103(2)(a), (b) or (d). That prohibition did not apply to Mr Broadhurst because he was prohibited from applying for a limited licence by s 103(2)(c).
[21] The District Court records show Mr Broadhurst pleaded guilty to the charge on 1 October 2020.
[22] Mr Broadhurst affirmed an affidavit of 19 November 2020. It gave an account of the circumstances in which he was stopped for driving while his licence was suspended. Mr Broadhurst said he drove only because he needed medication which he had to obtain from a pharmacy 26 kilometres from his home. He lived alone and had to collect the restricted medication himself. In his affidavit, Mr Broadhurst also provided information as to his work for a contracting business and the need for him to have a licence with that work.
[23] In submissions prepared by his then counsel for a sentencing on 25 November 2020, Mr Broadhurst sought to avoid disqualification on the basis there were special reasons relating to the offence.9
[24] The Court record shows that on 25 November 2020 Mr Broadhurst was further remanded to 23 February 2021. The presiding Judge noted that an application might be considered under s 94 but there was also a note “Police not prepared to take defendant’s assertions at face value”.
[25] A letter of 12 January 2021 was submitted to the Court from someone who, in the letter, described himself as Mr Broadhurst’s “site foreman”. In that letter, the writer said insurance restrictions would not allow someone to operate on a private site unlicenced. He said Mr Broadhurst “has made progress in leaps and bounds. It has not been easy to get to where he is with his past.”
[26] On 23 February 2021, Mr Broadhurst appeared in Court again. The Judge noted that Mr Broadhurst made a s 94 application. The Police opposed this. The Judge directed a formal application was to be made and he made timetabling directions. Mr Broadhurst was remanded to 1 April 2021.
[27] On 1 April 2021, Mr Broadhurst appeared before Judge Couch. The Judge remanded Mr Broadhurst to 23 June 2021 to appear for sentence before him with a note this was “to enable defendant to reconsider refusal to consent to home detention or community detention given my indication that imprisonment is starting point”. The Judge directed an update of the pre-sentencing report.
[28] That pre-sentence report advised Mr Broadhurst had started his own building company and employed over 10 staff. With it was a pre-sentence report of 3 November 2020 referring to changes Mr Broadhurst had made in his life and his then employment as a site foreman for Downer Construction but also his history of non-compliance with community-based sentences.
9 Under s 81(1) of the Act.
[29] In his sentencing remarks of 23 June 2021, the Judge was clearly concerned at Mr Broadhurst’s repeated breaches of the road rules. He noted it was the seventh time Mr Broadhurst’s driver licence had been suspended for excessive demerit points. He noted Mr Broadhurst had 12 previous convictions for driving while disqualified or driving while suspended but acknowledged the most recent such previous conviction had been in 2014. He considered the seriousness of Mr Broadhurst’s offending was such as to justify a starting point of 12 months’ imprisonment. It was however because the Judge did not want to see Mr Broadhurst’s new business adversely affected that he was prepared to sentence him to community detention. The Judge seemed to contemplate that Mr Broadhurst would need to travel in association with that business and would have to travel to multiple work sites. The Judge said, if Mr Broadhurst wanted to maintain that business, he had to comply with the law. The Judge did not however, in his sentencing remarks, refer to the application that had been made through counsel’s submissions for a community-based sentence to be imposed instead of a disqualification.
[30] Neither Mr Fletcher nor Ms Lancaster had been involved in the sentencing in the District Court.
[31] I obtained a transcript of what was said during the sentencing. It became available during the hearing of the appeal. The transcript showed that, at various points, Mr Broadhurst was personally involved in exchanges with the Judge. It was apparent from that exchange that there had previously been an application to avoid a disqualification based on special circumstances and s 81. In relation to that, the Judge indicated he had not believed much of what had been said in an affidavit in support of that “a few months ago”, saying “it was just plainly untrue”. Mr Broadhurst said “I’ll take that on the chin” and apologised.
[32] The Judge however confirmed with Mr Broadhurst’s counsel that a submission was now being made under s 94. There was a discussion between the Judge and counsel over s 94. The Judge said it looked like, previously, when he had been driving while disqualified, Mr Broadhurst had managed to persuade a Judge there should be no disqualification and the last time he had been actually disqualified was in 2012 so that he was not in any cycle of disqualification.
[33] In an exchange with counsel, the Judge said he did not accept that driving while suspended was the same as if he had been disqualified in a cycle of similar offending. The Judge emphasised that Mr Broadhurst had been disqualified not because he was in a cycle of offending but because he had been disqualified for driving while suspended. He was suspended for offences like speeding or using a cell phone, the matters he received demerits point for.
[34] The transcript shows Mr Broadhurst’s counsel nevertheless submitted to the Judge that, in Mr Broadhurst’s circumstances with his running a business, his partner about to have a child and with his living in a rural area, he needed to be able to drive. To that, the Judge asked counsel “well isn’t that potential limited licence application?” Counsel replied “possibly as well Sir but I would submit that it’s an overlapping ground”.
[35] That was followed by the Judge saying it was just not appropriate for Mr Broadhurst to think he could keep on driving as he liked and expect that he should be allowed to keep on driving. The Judge in that context did comment “if he can demonstrate extreme hardship, then he may be able to obtain a limited licence to do those things necessary to relieve the extremity of the hardship …”.
[36] Mr Broadhurst’s counsel suggested an extended period of community detention would be quite onerous. To that, the Judge said that might be, but the alternative had been for Mr Broadhurst to be sentenced to imprisonment. At that point Mr Broadhurst intervened and said “I’ll take the alternative to prison, Sir”.
[37] With the benefit of the transcript alongside the sentencing notes, I do not consider the Judge refused to substitute a community-based sentence for a period of disqualification because he considered Mr Broadhurst might be able to obtain a limited licence to limit the hardship that could be caused by a disqualification. In the exchanges that took place with counsel, there was some suggestion that a limited licence might be a possibility. The Judge had however indicated that, given the particular circumstances of Mr Broadhurst’s offending and the offending which had led to his licence suspension, it was not the sort of case where s 94 should be used. He indicated the disqualification would involve hardship but so would a potential
sentence of imprisonment which the Judge had considered might be necessary. Knowing that, Mr Broadhurst, who seems from the transcript to have been quite comfortable with the Court process, intervened and said he would take the alternative. In the context of that discussion, the alternative was disqualification.
[38] So, against that background, I must decide whether there was an error in the Judge imposing the sentence with a 15 month period of disqualification and not imposing some further community-based sentence in place of a disqualification.
[39] The Judge noted Mr Broadhurst had been suspended on 13 April 2020 for excessive demerit points incurred with four incidents of speeding and two of using a cell phone while driving. These were road safety issues. The Judge noted this had been the seventh time Mr Broadhurst’s licence had been suspended for excessive demerit points.
[40] The Judge had correctly identified that s 94 is intended to permit a sentencing Judge to impose a community-based sentence where an offender has been previously sentenced to disqualification and a further order for disqualification is not likely to be effective.
[41] Mr Broadhurst had been disqualified from driving on 23 February 2012 for nine months for driving while his licence was suspended. He was then sentenced to intensive supervision and community detention. He was sentenced on 4 December 2012 for two offences of driving while disqualified. In respect of each offence the Judge found there were special circumstances not to impose a further disqualification.
[42] On 13 June 2013, Mr Broadhurst was sentenced to home detention on a number of charges. One of the offences was operating a motor vehicle causing a sustained loss of traction, on which he was disqualified from driving for eight months from 13 June 2013.
[43] On 24 February 2014, he was sentenced for driving while disqualified on 23 January 2014. Again, the Judge found there were special circumstances for there to be no disqualification.
[44] Mr Broadhurst has two convictions for dangerous driving, including a conviction on 9 October 2018 for dangerous driving on 3 October 2017. For that offence, he was sentenced to 200 hours’ community work and placed under intensive supervision for one year. No disqualification was imposed.
[45] Mr Broadhurst had two convictions for reckless driving, one for operating a vehicle causing sustained loss of traction and three for failing to stop. He had received demerits points for more than 60 driving offences. Six of those were incurred in the last two years, with four for exceeding the speed limit and two for driving while using a cell phone.
[46] There was no evidence before the Judge to indicate that Mr Broadhurst would not be able to manage his new business if he did not have a licence.
[47] I am satisfied the Judge refused to apply s 94 to avoid a disqualification, but this was because of Mr Broadhurst’s offending history, not because the Judge thought Mr Broadhurst might be able to apply for a limited licence. The Judge had correctly identified that the purpose of s 94 was not to permit the Court to avoid imposing a further disqualification in Mr Broadhurst’s particular circumstances.
[48] Given Mr Broadhurst’s particular circumstances and his offending history, I do not consider the period of disqualification, coupled with community detention, was manifestly excessive.
[49]The appeal is dismissed.
Solicitors:
G D Fletcher, Barrister, Christchurch Crown Solicitor, Christchurch.
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