C v Police HC Wellington CRI-2007-485-106

[2007] NZHC 1356

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2007-485-106

C

Appellant

v

NZ POLICE

Respondent

Hearing:         13 November 2007

Appearances: C Nicholls for Appellant

MWC Snape for Respondent

Judgment:      3 December 2007 at 10 am

In accordance with r540(4) I direct the Registrar to endorse this judgment with a delivery time of 10am on the 3rd day of December 2007.

JUDGMENT OF MACKENZIE J

[1]      This is an appeal against sentence.   In essence, the appeal is against the refusal of the sentencing Judge to invoke s 94 of the Land Transport Act 1998 so as not to impose a further period of disqualification.

[2]      The appellant was sentenced on 25 September 2007 in the District Court in Lower Hutt on one  charge of driving whilst disqualified,  a  third  or  subsequent offence.   The appellant was sentenced to 100 hours community work.   He was

disqualified from holding or obtaining a driver’s licence for the minimum period of

C V NZ POLICE HC WN CRI-2007-485-106  3 December 2007

12 months, to commence on the expiry of his existing disqualification on 14 March

2008.   In sentencing, the Judge noted that the appellant had been continuously, or almost continuously, disqualified for a very long period of time.   The Judge dealt with the application of s 94 in some detail.  He said:

Counsel says to me today that enough is enough.  He has been disqualified enough.  It is in the interests of the community, because of the work that he is doing in the community, that he get his licence back.  I heartily agree, but I think s94 is not necessarily there just because we feel sorry for the guy, or because we think that he is doing good work and he ought therefore to have his  licence  back.     Certainly  positive  conduct  ought  to  be  positively reinforced.  I have no doubt about that.   I am not sure that is what s94 is about.

[3]      He then went on to note that an additional disqualification would take the appellant through until mid 2009.  He said if that existing disqualification had been longer, that might have made a difference but he was of the view that the appellant should wait the expiry of the current disqualification and the disqualification that he was to impose before he gets his licence back.  The Judge also declined to adjourn the matter, until the end of the existing disqualification, before deciding whether to impose an additional disqualification.

[4]      Mr Nicholls for the appellant submits that an adjournment would have given the appellant strong incentive to see out his disqualification without offending again, and that sentencing had already been adjourned from 31 May until 25 September

2007 for that purpose.  He further submitted that, in the alternative, s 94 should have been invoked, essentially to give the appellant “light at the end of the tunnel” and accordingly a stronger incentive not to drive while disqualified during the current disqualification.   Mr Nicholls further submits that the appellant is doing valuable work in the community, which is attested to by testimonials obtained, both in writing and conveyed orally through Counsel, for which community work a licence is required, or at least a desirable attribute.

[5]      Mr Snape for the Crown submits that the view taken by the sentencing Judge was clearly open to him and that there has been no error in the exercise of the discretion.

[6]      This is an appeal against the exercise of a discretion, so that the appellant must show that the Judge acted on a wrong principle;  or that he failed to take into account some relevant matter or that he took account of some irrelevant matter or that he was plainly wrong.

[7]      I do not think that it can be said that the refusal to invoke s 94 was wrong in principle.   The section enables a sentencing Judge to adopt a course other than imposing what would otherwise be a mandatory disqualification.   There can, as a matter of principle, be no entitlement on an offender to have that course adopted. The matter is clearly one where discretion must be exercised.

[8]      Here, I do not think that it can be said that the Judge has failed to take into account any relevant considerations.  All of the considerations that were urged upon me were considered by the Judge.  It is not for this Court to assess the weight which is to be attached to those considerations.   That is a matter squarely within  the discretion of the sentencing Judge.

[9]      Nor do I consider that there are any irrelevant matters taken into account.  All of the factors considered by the Judge were ones to which he was entitled to have regard, and the weight to be attributed to them was a matter for him.

[10]     Nor do I consider that the decision can be said to be plainly wrong.  Another

Judge may have exercised the discretion differently, but that is not enough. [11]      For these reasons, the appeal is dismissed.

“A D MacKenzie J”

Solicitors:        Chris Nicolls, PO Box 30-218, Lower Hutt for Appellant

Crown Solicitor, PO Box 10-357, Wellington for Respondent