Bull v Police

[2019] NZHC 899

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI 2019-419-8

[2019] NZHC 899

BETWEEN

KELVIN DAVID BULL

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	12 April 2019
Counsel:	J McLeod for Appellant B Vaili for Respondent
Judgment:	24 April 2019

JUDGMENT OF DUFFY J

This judgment was delivered by me on 24 April 2019 at 11.30 am pursuant to

Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Solicitors:

Public Defence Service, Hamilton Crown Solicitor, Hamilton

BULL v NEW ZEALAND POLICE [2019] NZHC 899 [24 April 2019]

[1]    The appellant, Kelvin Bull, appeals against his disqualification from driving which was part of a sentence that was imposed upon him by Judge Burnett on 21 December 2018. This sentence followed Mr Bull’s conviction, after entry of guilty pleas, on charges under the Land Transport Act 1998 (LTA) of driving while disqualified; failing to stop; and giving false information. There is no challenge to the other sentences that the Judge imposed on Mr Bull.

[2]    The above charges all arose from the same incident when Police stopped    Mr Bull and the vehicle he was driving on 14 May 2018 and found he was a disqualified driver. Other charges also arose from this incident: namely, refusing to permit a blood specimen; aggravated assault; and resisting arrest. However, because Mr Bull maintained not guilty pleas to these charges they were not heard until March this year by Judge Rollo in the Tauranga District Court. The Judge alone trial resulted in findings of guilty and convictions were entered on these charges, for which Mr Bull is due to be sentenced on 8 May 2019.

[3]    The sentence appeal is essentially based on an argument that the sentencing before Judge Burnett has miscarried through process error.

[4]    The incident arose in Tauranga. The charges were all originally based in the Tauranga District Court. After guilty pleas were entered to some of the charges at some time a District Court Judge transferred those charges to the Hamilton District Court for sentencing. This is when Ms McLeod, who works for the Public Defender at Hamilton, came to be involved.

[5]    At the sentencing hearing before Judge Burnett Ms McLeod sought an adjournment. She had only learned about the sentencing date  at short notice from  Mr Bull. The prosecuting sergeant had not been notified and he did not have the file. There was no agreed summary of facts for the charges to which the guilty pleas were entered. In addition, Ms McLeod had wanted to file an application pursuant to s 94 of the LTA for disqualification to be substituted with a community-based sentence, but the short notice she received had left her no time to take that step. Accordingly, Ms McLeod requested the sentencing be adjourned to the same date as the Judge alone trial for the defended charges. This presumably would also have required the

sentencing to be transferred back to the Tauranga District Court so that everything could be dealt with by the one Judge.

[6]    Whilst there was no agreed police summary of facts to support the charges to which guilty pleas had been entered, Judge Burnett did have a police summary of facts that disclosed facts to support all the charges, including those that were disputed. She also had a pre-sentence report. The Judge concluded that the sentencing should proceed that day and so it did. Ms McLeod was given the opportunity to present an oral application under s 94, which was unsuccessful.

[7]    Mr Bull’s complaint is first, that Judge Burnett was wrong to refuse to adjourn the sentencing. The failure to do so meant that Ms McLeod did not have a proper opportunity to present his case at sentencing.

[8]    Secondly, because the Judge proceeded to sentence Mr Bull on a summary of facts that included disputed material relating to charges to which he had pleaded not guilty she was, therefore, aware of information that was adverse to Mr Bull, and which placed him in a poor light. At the time of sentencing the presumption of innocence which he then enjoyed meant that adverse information relating to the charges to which he had pleaded not guilty should not have been before the Court. Before he could be sentenced on the charges to which he had pleaded guilty there should have been a Police summary of facts relevant to those charges only before the Court. Moreover, either the facts of that summary would have been accepted by Mr Bull or, if disputed, there should then have been a disputed facts hearing. Accordingly, as matters were, the sentencing proceeded with the Court having adverse disputed facts before it.

[9]    Thirdly, there was no time to make a proper application pursuant to s 94 of the LTA. Essentially, Ms McLeod was placed in the position of having to make an off the cuff oral application which would necessarily not have been as well prepared as an application for which she had been given sufficient time to prepare and to reduce to writing. Thus the chances of the application’s success were diminished by the nature of its form.

[10]   Finally, there was a separate matter which was not uppermost in Ms McLeod’s mind at the time, but which since the hearing before Judge Rollo has become more apparent and of greater significance. Seemingly, Judge Rollo has indicated that he would have been of a mind not to impose a period of disqualification for the charge of refusing to permit a blood specimen. Instead, Judge Rollo would have been prepared to consider imposing an alcohol interlock sentence. However, the disqualification that Judge Burnett has imposed bars this outcome.

[11]   In addition, the haste with which the sentencing proceeded before Judge Burnett resulted in other errors which the respondent acknowledges. First, a period of disqualification was imposed on the charge of providing false information when there was no legal basis for doing so. Accordingly, that disqualification requires removal. The length of disqualification on the charge of failing to remain stopped should, the respondent submits, be six months cumulative on the disqualification for driving while disqualified. In this regard I note the respondent has not filed a cross appeal. However, the setting aside of the disqualifications will provide the respondent with an opportunity to address the District Court on this topic should the respondent wish to do so.

[12]   The offence of refusing to permit a blood specimen, which led to Mr Bull’s conviction before Judge Rollo qualifies for the imposition of an alcohol interlock sentence. However, it would be pointless to do so given the disqualification imposed by Judge Burnett. Judge Rollo is aware of the appeal against the disqualification imposed by Judge Burnett and accordingly he has deferred sentencing on the outstanding matters until the outcome of the appeal is known.

[13]   The short point is that if all the charges relating to the one incident had been kept together the sentences on all charges would have been dealt with at the same time. It would then have been open to a sentencing Judge to impose an alcohol interlock sentence and to not impose any disqualification. This is a possible outcome because under s 65AH(3)(b) of the LTA if a concurrent offence (which is what the disqualified driving and failing to stop offending would be) did not result in injury or death (which it did not), the Court may take into account the alcohol interlock sentence that is ordered for the qualifying offence under s 65AC and choose not to order any

disqualification that might otherwise apply to the concurrent offence/s. Accordingly, if all offences had been dealt with at the one time it would have been open to the sentencing Judge to impose an alcohol interlock sentence for the qualifying offence (refusing to permit a blood specimen), and also to not impose disqualification for the concurrent offences which, here, would be the disqualified driving and failing to stop offences.

[14]   Because of the way the charges were split it necessarily followed that there was no qualifying offence for an alcohol interlock sentence before Judge Burnett, so she could never have imposed such sentence. One of the offences before Judge Rollo does qualify for an alcohol interlock sentence, but there is no practical point in imposing that sentence given the disqualification that was imposed by Judge Burnett. It necessarily follows from all this that Mr Bull has been prejudiced by the splitting of charges which have arisen from the same incident.

[15]   Section 250 of the Criminal Procedure Act 2011 provides that the first appeal Court in an appeal against sentence must allow the appeal if satisfied that for any reason there is an error in the sentencing imposed on conviction, and a different sentence should be imposed.

[16]   Here Mr Bull has lost the opportunity to be considered for an appropriate sentence for his offending in the form of an alcohol interlock sentence. This is not to say he should receive an alcohol interlock sentence, but simply to recognise that it appears to be an appropriate sentence for someone like him, but because of the way the District Court has procedurally managed the charges it is not available to him. He has suffered further prejudice by Judge Burnett’s refusal to grant an adjournment which meant the sentencing proceeded in circumstances where Mr Bull’s counsel appeared at short notice, where no proper summary of facts was before the Judge, where adverse information was wrongly placed before the Judge and there was insufficient time for Ms McLeod to prepare a s 94 application.

[17]   In total these errors suggest Mr Bull did not have a fair and proper opportunity to be heard on sentencing; which amounts to a material procedural irregularity, that constitutes an error in the sentence imposed by Judge Burnett.

[18]   The respondent argued that Mr Bull had suffered no prejudice through the sentencing proceeding before Judge Burnett. The absence of an agreed summary of facts was not prejudicial to the Judge’s determination of the appropriate sentence because she made no reference to those parts of the summary which related to the disputed charges. The respondent also argued that it cannot be assumed that Mr Bull would, in fact, be granted an alcohol interlock sentence if all charges had been before the one Judge for sentence.

[19]   I accept that the pressures of the District Court’s workload may require counsel to sometimes appear at short notice and to represent their client in circumstances that may be less than ideal. I also accept that Judge Burnett made no reference to the passages in the Police summary of facts that did not directly relate to the charges on which she was sentencing Mr Bull. Nonetheless, the additional information contained in the Police summary of facts placed Mr Bull in a poor light. A Judge reading that summary of facts may well have been adversely influenced by it when it came to dealing with the adjournment application. Having such prejudicial information before the sentencing Judge may, at the least, create the appearance that Mr Bull did not have a fair opportunity to be heard that day.

[20]   Then, there is the fact that the splitting of charges relating to the one incident has precluded the imposition of an alcohol interlock sentence.   Everything about   Mr Bull’s criminal history shows him to be a recidivist offender when it comes to driving under the influence of alcohol. He clearly has a serious alcohol problem. He has taken steps to overcome the problem and has been in the past successful. He managed to acquire a driver’s licence following a period of indefinite disqualification some years earlier. However, the present offending shows he has fallen by the wayside again.

[21]   Alcohol interlock sentences provide a technological answer to the problem of alcoholics who are recidivist drunk drivers. Driving under the influence of alcohol endangers the safety of the community. Such conduct requires denunciation and deterrence. However, the reality is that persons in the grip of an alcohol addiction have little real control over their actions from time to time. This is where an alcohol interlock sentence is ideal. The insertion of these devices in an offender’s vehicle

effectively stops him or her from driving the vehicle after the consumption of alcohol. When those type of drivers have not touched alcohol they usually are no danger to others.

[22]   Until the availability of alcohol interlock sentences the only way the community could be kept safe from recidivist drunk drivers was by significant periods of disqualification from driving. This often resulted in repeated offending of driving while disqualified. It also could lead to other offending, which is exemplified by the present charges that Mr Bull faced. Such persons often realise the consequences of their actions once stopped by Police, which can lead to them attempting to resist arrest or in other ways become uncooperative.

[23]   The general comments I make are not to say that Mr Bull should receive an alcohol interlock sentence. However, I think he should have been given the opportunity of seeking such a sentence. Further, that the Court sentencing should have had the opportunity to consider the imposition of this sentence. The way matters have turned out here, what appears, in principle, to be a suitable and appropriate answer to Mr Bull’s offending has been precluded by the procedural management of the charges in the District Court.

[24]   I am satisfied that when the matter is looked at overall, the procedural management of the charges coupled with the way the sentencing proceeded before Judge Burnett have led to errors that warrant this Court interfering on appeal with the sentence imposed.

[25]   Accordingly, I consider the appropriate outcome here is to allow the appeal against the sentence of disqualification. I therefore set the three disqualifications aside and remit the charges of driving while disqualified and failing to stop back to the District Court for it to consider whether it is appropriate to order disqualification on those charges. This will require the charges of driving while disqualified and failing to stop to be placed before Judge Rollo so that Mr Bull can be sentenced by one Judge on all charges relating to the same incident.

Result

[26]   The appeal against sentence is allowed. All disqualifications from driving imposed in the Hamilton District Court are set aside. The question of whether any disqualifications for the two relevant charges are imposed or not is remitted to the Tauranga District Court for reconsideration.

[27]   The sentences are to be reconsidered by Judge Rollo as part of the sentencing for the remaining charges which he is currently scheduled to hear on 8 May 2019.

Duffy J