Bush v Police
[2024] NZHC 3847
•16 December 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2024-404-000533
[2024] NZHC 3847
BETWEEN MARTYN CHARLES BUSH
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 9 December 2024 Counsel:
PHH Tomlinson for Appellant JT Lowyim for Respondent
Judgment:
16 December 2024
JUDGMENT OF DOWNS J
This judgment was delivered by me on Monday, 16 December 2024 at 1 pm.
Registrar/Deputy Registrar
Solicitors/Counsel:
Crown Solicitor, Auckland. PHH Tomlinson, Auckland.
BUSH v POLICE [2024] NZHC 3847 [16 December 2024]
The appeal
[1] Martyn Bush drove while disqualified for the fifth time. The Judge declined to substitute a community-based sentence for the otherwise mandatory period of disqualification.1 Mr Bush appeals.2
Background
[2] In the early hours of 15 September 2023, Mr Bush was stopped at a Police checkpoint. He failed to provide a driver’s licence when asked for one. A check revealed he was disqualified from driving. Mr Bush said he was going to the hospital.
[3] Mr Bush was later charged with driving while disqualified, being a third or subsequent offence.3 He pleaded guilty promptly.
[4] Mr Bush argued “special reasons” existed in relation to the offence in terms of s 81 of the Land Transport Act 1988 and he should not, therefore, be further disqualified from driving. Mr Bush said he was driving to hospital as he had a broken ankle that was swollen and painful, and cellulitis in the other foot. Mr Bush said he was worried about the latter “spreading up my leg”.
[5] Mr Bush also argued a community-based sentence should be imposed rather than the otherwise mandatory disqualification period. That application was based on s 94 of the Land Transport Act, which provides:
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
1 Police v Bush [2024] NZDC 23901.
2 Criminal Procedure Act 2011, s 250(2).
3 Land Transport Act 1998, s 32(1)(a) and (4); maximum penalty, two years’ imprisonment,
$6,000 fine.
(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).
[6] Judge P L Murray concluded no special reasons existed under s 81 of the Act:
[23] If there was an acute medical situation then it could possibly amount to a special reason. Here, you waited some days after the offending before seeking medical treatment. You say it was the following pay day. You clarified for me today that your pay day was Monday. The offending occurred early on a Friday. You must then have waited all day Friday and all weekend before seeking treatment. The hospital referred you to your GP, indicating that this was not overly serious. There are no special reasons.
[7] The Judge also rejected Mr Bush’s application under s 94 of the Act:
[29] The key is to determine whether disqualification is inappropriate. There are four factors to consider:
(a)First, the circumstances of the case and your personal circumstances.
(b)Second, the effectiveness, or otherwise, of previous disqualification orders;
(c)Third, the likely effect of further disqualification; and
(d)Fourth, the interests of the public.
[30]I need to weigh each factor. No one factor is conclusive on its own.
[31] You are not currently working. You have a job offer but that is contingent on getting a full driver’s licence. The letter from your employer, dated 8 July 2024, is not easy to follow in the way it is written. You only have a learner’s licence. Getting a full driver’s licence is likely some time away. Obviously, you need to pass the practical driving test.
[32] Before that you need to obtain funding to pay for the test. You advise me today that you can go straight from a learner’s licence back to a full licence, you do not need to obtain a restricted licence in between. Funding for the full licence needs to come from an external source as you cannot afford it. That is the reason for the meeting with the Ministry of Social Development.
[33] Those are the personal circumstances that I consider. They are contingent at best, speculative at worst.
[34] The circumstances of the offending are simply driving when you should not have been. You are disqualified for good reason. You have repeatedly shown you are an unsafe and dangerous person on the road. Disqualification is there to keep everyone else safe.
[35] In relation to previous disqualifications, you have complied with the most recent disqualification until this offence. It had been serving its purpose and keeping you off the road. I need to consider what a s 94 order would mean.
You could drive whenever and wherever you wanted. That contrasts with a limited licence which would be specific to work-related driving once you have a job.
[36] I have not looked to see whether you are statute barred from a limited licence but if you are not, that is the more appropriate application to make later in time.
[37] Section 94 is not made out on the information before the court. A possible job contingent on a not yet obtained driver’s licence is not sufficient. The public interest in not disqualifying you is not made out.
[38] By contrast there is a clear public interest in maintaining the disqualification. Simply put, it keeps the community safe.
[39] Given that finding, I do not need to consider whether yours is a case where it would be appropriate to sentence you to a community-based sentence.
[40] For completeness, and if I am wrong about the circumstances and the public interest factors, I would have found that your case was inappropriate for a community-based sentence in substitution of disqualification.
A précis of Mr Bush case on appeal
[8] Mr Bush does not contest the Judge’s “special reasons” conclusion, at least directly. Rather, Mr Bush argues his medical circumstances and the more general circumstances of his case warranted the substitution of a community-based sentence under s 94. On Mr Bush’s behalf, Mr Tomlinson notes:
(a)Mr Bush is 45 years of age and unemployed. The type of employment sought by Mr Bush is likely to require him to have a driver’s licence.
(b)Mr Bush was driving only because he was unwell and seeking medical attention.
(c)Mr Bush’s driving was itself unremarkable.
(d)Mr Bush is completing a sentence of community work in relation to the offending. No issue has arisen with that sentence, or is likely to. The Court may, therefore, be confident a substituted sentence would be complied with.
[9] Mr Tomlinson argues the Judge was wrong not to substitute a community-based sentence given this mix.
Analysis
[10] The appeal raises no question of the scope or breadth of s 94.4 Nor does any issue arise in relation to the statement of principle identified by the Judge at [29] of his remarks, as to which see [7]. Indeed, Mr Tomlinson accepted that statement was correct. Relatedly, Mr Bush’s disqualification history does not engage the paradigmatic case for a substituted sentence, in which that outcome hopes to break an apparently habitual cycle of driving while disqualified, a cycle otherwise compounded by ever-increasing terms of disqualification.5 Mr Tomlinson’s written submissions did hint at this argument, but it was not pursued with vigour at the hearing, presumably because Mr Bush’s disqualification history does not support it. Again, the only real contention is that the mix at [8] should have resulted in a substituted sentence.
[11] It was open to the Judge to accept that argument. But it was also open to the Judge to reject it. The Judge was exercising a statutory discretion. In Poona v Police,
Davison J said this about the discretion:6
[14] …. The Court therefore has limited jurisdiction on appeal: it may only interfere if the appellant can demonstrate that the Judge in the Court below erred in principle in exercising his or her decision; failed to take into account a material consideration; took into account an irrelevant consideration; or was plainly wrong.
[15] The weight to be given to individual factors is a matter for the sentencing Judge. It is not for the appellant Court to say that the Judge placed undue weight on one factor, or should have placed greater weight on another.
[12] It was thus open to Judge Murray to give decisive weight to the public interest given Mr Bush’s “serious criminal driving history”,7 which includes “multiple
4 Beeston v Police [2012] NZHC 1064 at [24].
5 Mr Bush’s relevant offending was committed November 2008; March 2009; May 2012; May 2015; and September 2023. The interval between instances of driving while disqualified is increasing, not decreasing.
6 Poona v Police [2018] NZHC 791 (footnotes omitted).
7 Police v Bush, above n 1, at [4].
[convictions] for refusing blood tests and other drink driving while impaired, careless driving”,8 as well as convictions “for reckless driving … and failing to stop”.9
[13] The circumstances in connection with Mr Bush’s immediate offending were relevant and could support a substituted sentence. But again, it was not wrong for the Judge to regard those circumstances as falling short, whether alone or in conjunction with the broader circumstances of the case, given his (available) conclusion that Mr Bush was not seeking emergency-related medical care
[14]It follows I accept Mr Lowyim’s submission on behalf of the respondent:
In light of his Honour’s findings on these points … Judge Murray did not err in concluding the application for “section 94 is not made out on the information before the court”. Rather, his Honour declined to exercise his statutory discretion because of his assessment of the relevant considerations.
Result
[15] The appeal is dismissed.
……………………………..
Downs J
8 Police v Bush, above n 1, at [4].
9 At [4].
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