Burgess v Police

[2021] NZHC 362

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2020-409-000184

[2021] NZHC 362

BETWEEN

DANIEL BURGESS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	3 March 2021
Appearances:	K T White and B Ayrey for Appellant S Bicknell for Respondent
Judgment:	3 March 2021

ORAL JUDGMENT OF DUNNINGHAM J

Introduction

[1]    The appellant, Daniel Burgess, drove while disqualified. It was the ninth time. Although he applied to substitute a community-based sentence for a period of disqualification, Judge Brandts-Giesen sentenced him to six months’ community detention and two years’ disqualification.1 Mr Burgess appeals the failure to grant the s 94 application.

Facts

[2]    On  15  January  2020,  Mr  Burgess  was  disqualified  from  driving  until  14 July 2020.  He drove someone else’s  motorcycle down Moorhouse Avenue on 14 May 2020. His evidence is he was taking the bike to be serviced and had otherwise complied with his disqualification.

1      Land Transport Act 1998, s 94.

BURGESS v NEW ZEALAND POLICE [2021] NZHC 362 [3 March 2021]

[3]    Mr Burgess was also sentenced for wilful damage and disorderly behaviour. He does not appeal that sentence.

[4]    Mr Burgess is 27 years old. He has 29 previous convictions, including eight for driving while disqualified or suspended. He is currently employed on a casual basis by Concrete Contractors Ltd. They have offered him full time work on the condition he retains his licence and I received a letter today confirming that remains the position. He has not had full time work since he was 21 years old.

District Court decision

[5]    For the offence of driving while disqualified, Judge Brandts-Giesen adopted a starting point of one years’ imprisonment.   He gave a discount of 25 per cent for   Mr Burgess’ guilty plea. The Judge was reluctant to send Mr Burgess to jail so imposed a sentence of six months’ community detention.

[6]    He also disqualified Mr Burgess from driving for two years. In doing so the Judge explained that this was his ninth conviction and there was no sensible explanation for driving on that occasion. The Judge did not expressly address the substitution application before him.

[7]    For the other offending Mr Burgess was fined $800 and ordered to pay $500 in reparation.

Principles on appeal

[8]    The only aspect of the Judge’s decision which is subject to appeal is the application for substitution of disqualification.

[9]    Section 94 of the Land Transport Act provides discretion for the court to substitute a period of disqualification for a community-based sentence. This discretion is available if the offender has previously been disqualified from driving.2 It can be exercised if it would be inappropriate for the offender to be disqualified. In deciding that, the Court must have regard to:

2      Section 94(1)(a).

(a)the circumstances of the case and the offender;

(b)the effectiveness or otherwise of a previous order of disqualification made in respect of the offender;

(c)the likely effect on the offender of a further order of disqualification; and

(d)the interests of the public.3

[10]   In exercising his discretion, the Judge did not consider all these relevant mandatory considerations. Accordingly, I will consider this matter afresh.

[11]   A s 94 application is “unambiguously remedial”4 and should only justify a variation from the norm when the circumstances or rehabilitative prospects of the offender justify “affording the offender an opportunity to break the cycle of circumstances contributing to the recidivist offending”.5

Submissions

[12]   Ms Bicknell, for the respondent, opposes the appeal. She acknowledges that the sentencing Judge did not explicitly discuss all the relevant considerations for an application to substitute. Nevertheless, she says it was open to the Judge to dismiss the application. In terms of the circumstances of the case, and of the offender, she points out that Mr Burgess’s explanation for why he was driving that day was inadequate and his conviction history is extensive and not limited to driving while disqualified offences. In her submission, his driving history demonstrates a wider disregard  for  road  rules,  including  demerit  points  for   excessive   speed   on three occasions, operating an unlicensed motor vehicle on six occasions, driving unaccompanied as a learner driver on three occasions, carrying an unauthorised passenger as a restricted driver on four occasions, and receiving demerit points for using a mobile phone while driving. She also notes, that even on this occasion, the

3      Section 94(1)(b).

4      Maeva v Police HC Auckland CRI-2010-404-402, 11 March 2011 at [30].

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

fact he was driving a motorbike for which he did not have the appropriate licence, carries with it inherent risk to the public.

[13]   She also notes Mr Burgess has convictions from 2018 for driving dangerously for failing to stop for red and blue lights. She refers to Maeva v Police, where it was noted that Parliament had amended s 94(2).6

Extend its scope to include disqualified drivers who are caught in the cycle of disqualified driving but have no other recent convictions for serious road safety offences.

[14]   She acknowledges that Mr Burgess has previously been convicted of driving while disqualified or suspended nine times and, by implication, the previous orders have not been effective. She also accepts that being disqualified could impact on the job offer Mr Burgess has from his current employer. In the terms of the interests of the public, however, she says his driving does pose a risk to the community and thus the application under s 94 was properly declined.

[15]Ms White, for Mr Burgess, says the District Court Judge:

(a)failed to adequately take into account the relevant mandatory considerations set out in s 94 of the Act, in particular, the likely effect of a further order of disqualification and the public interest considerations;

(b)failed to give sufficient weight to the effectiveness of previous orders of disqualification, by failing to have regard to whether the appellant was on the “wheel of offending”;

(c)erred in placing undue weight on the irrelevant consideration of who the motorcycle belonged to; and

(d)accordingly, erred in the exercise of his discretion under s 94.

6      Maeva v Police, above n 4, at [33].

[16]   In the event that the appeal against the failure to grant the s 94 application is not successful, Mr Burgess then appeals the two year disqualification period on the grounds it was manifestly excessive. Ms White refers to the cases of Apiti v Police, Skelton v Police, and Poona v Police,7 where appeals were against decisions to refuse applications under s 94 were successful. In particular, she points out that in Skelton, the appeal was allowed where there was a failure to consider all relevant s 94(1)(b) factors and, as in that case, I should undertake the s 94 exercise afresh.

[17]   In her submission, if the s 94 appeal is allowed, community detention or community work can be imposed in lieu of the period of disqualification. The quantum of a community-based sentence should be considered in light of the fact  Mr Burgess will have served over three months of the disqualification by the time this appeal is heard. In the alternative, if the s 94 appeal fails, she argues that the disqualification period should be reduced.

Analysis

The circumstances (s 94(1)(b)(i))

[18]   I turn now to consider the  circumstances  of  the  case  and  the offending. Mr Burgess was caught driving while disqualified, and his explanation that he was arranging to have the motorcycle serviced in anticipation of sitting a motorcycle test at a later date was plainly inadequate. However, he was not driving dangerously and I do not consider there were real concerns of public safety. He expressed remorse and described his decision to drive as “stupid”.

[19]   Prior to being disqualified by the Judge, Mr Burgess had reobtained a full driver’s licence and a restricted motorcycle licence. He has provided evidence of an offer of full-time employment which is only available if he retains his driver’s licence. This would be his first full-time job since he was 21. His past offending has coincided with this period of unemployment.

7      Apiti v Police [2013] NZHC 2349; Skelton v Police [2015] NZHC 1735; and Poona v Police

[2018] NZHC 791.

[20]   Mr Burgess gives evidence he now has a different mindset and wants to get out of the system. He says his casual employment at Concrete Contractors Ltd has been hugely beneficial and has provided structure to his life. He has the support of his family, partner and friends to continue living a positive lifestyle. His manager described him as “very keen” and said that he had “great skills”.

Effectiveness of previous orders (s 94(1)(b)(ii))

[21]   In considering the effectiveness of previous orders, I note these have not discouraged Mr Burgess from driving. However, he says in evidence he complied with the recent order aside from when he was caught breaching it. He has also complied with the Judge’s order since November last year.

Effect of a further order of disqualification (s 94(1)(b)(iii))

[22]   In terms of the effect of a further order of disqualification, the current order keeps Mr Burgess in the criminal system and prevents him from obtaining full-time employment.

Interests of the public (s 94(1)(b)(iv))

[23]   There is no allegation that Mr Burgess posed a danger to the public in the circumstances he was being sentenced for. I accept, however, Ms Bicknell’s submission that his previous driving conduct indicates that he has been a danger, and that is relevant to the interests of the public. However, I balance that against the fact there is no evidence that he has driven dangerously since 2018 and, in my view, the interests of the public are better achieved by Mr Burgess obtaining full-time work and developing pro-social tendencies.

Conclusion

[24]   In considering the s 94 applications the Courts often refer to removing an offender from the “wheel of offending”. In my view, these are exactly the circumstances a substitution  application  was  designed  for. I am satisfied that Mr Burgess should be given an opportunity to break the cycle of offending and rehabilitate himself by contributing to society.

[25]   The disqualification period on such applications tends to be substituted for between 40 and 100 hours of community work.8 I consider 50 hours would be appropriate in this case, noting the period of disqualification already served and the fact that Mr Burgess would be completing it alongside full-time work.

[26]   Mr Burgess was also sentenced by the District Court Judge to six months’ community detention. In the circumstances, I would vary the conditions of that detention from a 9 pm to 5 am curfew to a 9 pm to 4:30 am curfew. This is so that he can get to work for a larger pour where he might be required to start work at 5 am.

Result

[27]   Accordingly, the appeal is allowed. The sentence of two years’ disqualification is quashed. I impose in its place a sentence of 50 hours’ community work. The sentence of six months’ community detention remains in place. However, I vary the conditions of that detention from a 9 pm to 5 am curfew to a 9 pm to 4.30 am curfew.

Solicitors:

Public Defence Service, Christchurch

Raymond Donnelly & Co., Christchurch

8      Apiti v Police [2013] NZHC 2349 (40 hours) and Poona v Police [2018] NZHC 791 (100 hours).