Brown v The King
[2024] NZHC 960
•29 April 2024
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2024-409-39
CRI-2024-409-40 [2024] NZHC 960
BETWEEN JOSHUA WIRIMU BROWN
Appellant
AND
THE KING
Respondent
Hearing: 24 April 2024 Appearances:
B P A Shamy for Appellant
B W D Alexander for Respondent
Judgment:
29 April 2024
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 29 April 2024 at 9.30 am, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
BROWN v R [2024] NZHC 960 [29 April 2024]
Introduction
[1] Joshua Brown pleaded guilty to charges of driving while suspended (third or subsequent) (x3),1 theft,2 perverting the course of justice,3 unlawful possession of explosive,4 and unlawful possession of an imitation firearm.5 Mr Brown was sentenced by Judge Ruth to eight months’ home detention and disqualified from driving for 12 months.6 Mr Brown now appeals the Judge’s refusal to grant an application under s 94 of the Land Transport Act 1998 (LTA), to have a community-based sentence imposed in place of the period of disqualification.
Facts
[2] On 22 October 2022, Mr Brown was suspended for excess demerit points for three months. On 5 November 2022, Mr Brown was stopped by police while driving. On 8 November 2022, Mr Brown was again stopped by police while driving.
[3] On 20 November 2022, Mr Brown entered a petrol station, hired and paid for a trailer for two hours and then never returned it. Mr Brown provided a false phone number when hiring the trailer. The trailer was reported stolen on 22 November 2022 and found by a member of the public on 11 December, abandoned on Brookside Terrace. On discovery, the trailer had a damaged axle, punctured tyres, welding damage and was filled with rubbish. Reparation of $513 is sought for the damage and disposal costs.
[4] On 22 December 2022, Mr Brown was scheduled to appear in the Christchurch District Court. Mr Brown advised his lawyer that he had COVID-19 and could not attend. On being told to send confirmation of this to the Court, Mr Brown sent a cropped image of a positive test taken from an American public health website. An affidavit was provided by one Samantha Ayers confirming that she had witnessed Mr Brown take a positive test on 19 December 2022.
1 Land Transport Act 1998, ss 32(1)(c) and 32(4); maximum penalty two years’ imprisonment.
2 Crimes Act 1961, ss 219 and 223; maximum penalty seven years’ imprisonment.
3 Section 117(e); maximum penalty seven years’ imprisonment.
4 Arms Act 1983, s 46(1); maximum penalty four years’ imprisonment.
5 Section 46(1); maximum penalty two years’ imprisonment.
6 R v Brown [2024] NZDC 2958.
[5] On 4 April 2023 Mr Brown was served with a driver suspension notice and his licence was suspended for three months. On 24 April 2023, Mr Brown was convicted of two charges of driving while disqualified (third or subsequent).
[6] On 25 April 2024, Mr Brown was stopped by police and spoken to while driving. Located in the vehicle was an imitation blank firing Berretta pistol and seven rounds of blank ammunition.
District Court decision
[7]Judge Ruth declined to grant the s 94 application saying:7
… a s 94 application … invites the Court to stand back from further disqualification of you and to replace the disqualification that would otherwise have been entered against you with … a community-based sentence … s 94 will not be available here because as a matter of jurisdiction, I have reached the view that a term of imprisonment is the appropriate sentence. The only question for me being whether I will step back from imprisonment and in fact sentence you to home detention. That is the submission that Ms Bell, who represents you today, puts forward and indeed that both the Crown and police are of the view that that would in fact be a satisfactory sentence in all the circumstances and I need to tell you that I agree with those suggestions. Home detention is not, by definition, a “community-based sentence”.
[8] The Judge then sentenced Mr Brown to eight months’ home detention and imposed concurrent sentences of two months’ home detention on each of the driving while disqualified charges, along with a period of 12 months disqualification from driving.
[9] Because this appeal only relates to that decision, it is not necessary to traverse the balance of the judgment. Mr Shamy accepts that the end sentence of eight months’ home detention was appropriate. The only challenge is to the refusal to substitute the 12 month period of disqualification with a community-based sentence.
Relevant law
[10]Section 94 of the LTA provides:
(1)This section applies if—
7 R v Brown, above n 6, at [7].
(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.
…
[11] The power to make an order under s 94 is an exercise of discretion.8 This Court may only interfere with the lower Court’s decision if it finds the lower court erred in
8 Keates v Police HC Auckland CRI-2010-404-269, 21 September 2010 at [6].
principle in exercising his or her own decision; failed to take into account a material consideration; took into account an irrelevant consideration or was plainly wrong.9
[12] The weight to be given to individual factors is a matter for the sentencing Judge. This Court will not interfere simply because it considers the Judge placed undue weight on one factor or should have placed greater weight on another.10
Submissions
Appellant’s submissions
[13] Mr Shamy, counsel for Mr Brown, submits that the s 94 LTA application was not reviewed on its merits, but rather was rejected because the Judge felt there was no scope to grant such an application because he was proposing a sentence of imprisonment (albeit commuted to home detention).
[14] Mr Shamy submits that s 19(5) of the Sentencing Act 2002 provides for a sentence of community work to be imposed in addition to a sentence of home detention. He submits that any concerns regarding compliance with a sentence of community work could be remedied by the restrictions of the home detention sentence.
[15] Mr Shamy refers the Court to Keates v Police where Lang J provided a guide to the Court’s discretion under s 94:11
[5] Before a Judge can impose a community-based sentence, he or she must be satisfied both that a further period of disqualification is inappropriate and that a community-based sentence is appropriate. Those determinations depend upon the weight that the Judge gives to the four factors listed in s 94(1)(b). The weight to be given to each of those factors will vary according to the circumstances of the case. If the Judge decides both ultimate issues in favour of the applicant, the discretion may be exercised in favour of the applicant. If the Judge decides either of those issues against the applicant, there will be no jurisdiction to grant the application.
[6] The power to make an order under s 94 is therefore, the exercise of a statutory discretion. It is for the Judge who decides the application to weigh up the competing interests and to determine the manner in which the discretion should be exercised.
9 At [6]–[7]. See also Criminal Procedure Act 2011, s 250(2).
10 Poona v Police [2018] NZHC 791 at [15].
11 Keates v Police, above n 8.
[16] Mr Shamy also refers the Court to Mallon J’s decision in Police v Body, where the Judge noted that while the starting point is an order of disqualification, there is a broad discretion held by the Court to substitute that with a community-based sentence, should the Court find it appropriate to do so.12
[17]Finally, Mr Shamy refers to the following observation made by Fisher J in
Lambert v Police:13
The object of sentencing for disqualified drivers is purely to punish. It is not to remove an offender from the roads for the safety of the public. The punishment should, if possible, take a form which will not place an offender into a repetitive cycle of disqualified driving.
[18] Mr Shamy says this observation is highly relevant to Mr Brown’s circumstances. There is no suggestion Mr Brown’s driving itself was poor. The disqualification arose solely because of the accumulation of demerit points for driving without a licence. Mr Brown has now taken steps to remedy this by obtaining his restricted licence. Mr Shamy cites the Court of Appeal’s decision in Governor v Police where that Court held that s 94 is an enabling provision and its purpose was to allow the Court to consider whether a community-based sentence “may be advantageous and in the public interest for any number of reasons”.14
[19] If the appeal on this point is successful, Mr Shamy applies for the matter to be remitted to the District Court for consideration or, alternatively, for the merits to be considered by this Court as a more efficient use of Court resources.
Respondent’s submissions
[20] Mr Alexander, for the respondent, notes the limited jurisdiction the Court has on appeal with regard to s 94 applications. Mr Alexander submits that the passage referred to at [7] of Judge Ruth’s decision quoted at [7] of this judgment shows the Judge did not think a combination sentence of home detention and community work was appropriate because he did not think a community-based sentence was appropriate in lieu of disqualification. Having found as much, the Judge did not undertake an
12 Police v Body [2013] NZHC 1586 at [7].
13 Lambert v Police HC Rotorua AP62/90, 11 October 1990 at 7.
14 Governor v Police [2021] NZCA 403 at [40].
analysis of the s 94 test, as there was no jurisdiction to do so under s 94(1)(c), with Mr Alexander submitting that such a decision does not constitute an error.
[21] In any event, Mr Alexander submits that a s 94 order would not be appropriate for the following reasons:
(a)Section 94(1)(b) – inappropriateness of disqualification: Mr Brown was convicted on three separate occasions with no good reason for driving on any of them. The theft charge also occurred while he was suspended from driving. Previous suspensions have been ineffective, and the consequences claimed by a further disqualification are not disproportionate. The evidence from Mr Brown’s employer that he is required to drive to work does not explore other options such as carpooling, public transport or transport from his partner. Furthermore, because Mr Brown has had 12 infringements for adverse driving behaviour, generally involving speeding, Mr Alexander submits Mr Brown’s behaviour presents a risk to public safety.
(b)Section 94(1)(c) – appropriateness of a community-based sentence: the end-point for sentencing was 22 months’ imprisonment and the Judge noted that deterrence and denunciation took a more significant role, given Mr Brown’s previous convictions.15 Furthermore, Mr Brown has been granted a previous s 94 order but that did not extract him from the cycle of offending. He has also failed to comply with a sentence of community work. Mr Brown has five previous breaches of community work, suggesting, Mr Alexander submits, an inability to comply with such sentences. Mr Brown’s history, employment and familial commitments all mean a sentence of community work may “set him up to fail”.
15 R v Brown, above n 6, at [10].
Analysis
[22] The alleged error in this appeal turns on the interpretation of the passage in the decision cited above at [7]. Mr Shamy categorises it as ignoring whether the disqualification should be substituted with a community-based sentence because of a misunderstanding over whether such a sentence can be imposed alongside a sentence of home detention, whereas Mr Alexander says, it is clear the Judge was intending to address the jurisdictional issue in s 94(1)(c), even if not as clearly expressed as it could be.
[23] Having given consideration to the entirety of the passage, I am satisfied that it expresses the Judge’s conclusion on s 94(1)(c). He sets out the test in s 94(1)(c) and then says that a s 94 application will not be available “as a matter of jurisdiction”. While he does not expressly state his conclusion that a community-based sentence would not be more appropriate than disqualification, I consider that is the logical inference to be taken from this part of his decision. He sees the offending as sufficiently serious that no aspect of it, including the disqualification period, can be addressed by a community-based sentence. The only appropriate sentence is a starting point of imprisonment and the requisite period of disqualification.
[24]Accordingly, I am not satisfied that there was an error in sentencing.
[25] However, I go on to consider whether, if the Judge had misunderstood whether he had jurisdiction to impose a community-based sentence alongside home detention, the s 94(1) requirements would be met in this case.
[26] In that regard, I accept the submissions of Mr Alexander that this is not a case where disqualification is inappropriate. In terms of the circumstances of the case and of the offender, the offending involves repeated instances of driving while disqualified, including two within three days of each other. Normally, that might be a factor which points towards the making of an order. However, of significance in Mr Brown’s case is the fact he has already had the benefit of a s 94 order on his previous offence of driving while disqualified. Clearly, it has not enabled him to break the cycle of offending and, as the Judge said, considerations of deterrence and denunciation now take on a more significant role.
[27] I also accept Mr Alexander’s submission that Mr Brown’s history of non-compliance with sentences of community work speaks against this being an appropriate sentence in lieu of disqualification. Whilst Mr Shamy argued there can be greater assurance Mr Brown would attend and comply with a sentence of community work while he is supervised through his home detention sentence, that is insufficient to satisfy me that it is a more appropriate sentence. Furthermore, despite Mr Shamy’s submission that Mr Brown has now made some progress towards getting his full licence, by obtaining your restricted licence, I do not see that as a sufficiently persuasive factor to suggest that he should have a second opportunity to avoid disqualification under s 94.
[28] In summary, I consider that reading [7] of the judgment in totality, the Judge was addressing the jurisdictional test in s 94(1)(c) correctly. Even if, as Mr Shamy submits, the Judge had misunderstood his ability to impose a sentence of community service alongside a sentence of home detention, I do not consider a different sentence should be imposed. The circumstances of the offending do not support a further opportunity to avoid an order for disqualification.
[29]Accordingly, the appeal is dismissed.
Solicitors:
Crown Solicitor, Christchurch
Copy to:
B Shamy, Barrister, Christchurch
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