Cadle v Department of Corrections
[2022] NZHC 1222
•27 May 2022
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2022-409-69
[2022] NZHC 1222
BETWEEN DAVID WILLIAM CADLE
Appellant
AND
DEPARTMENT OF CORRECTIONS
First Respondent
NEW ZEALAND POLICE
Second Respondent
Hearing: 26 May 2022 Counsel:
B P A Shamy for the Appellant
C M Hallaway for the Respondent
Judgment:
27 May 2022
JUDGMENT OF GWYN J
Solicitors:
B P A Shamy, Barrister, Christchurch
Raymond Donnelly & Co, Christchurch
CADLE v DEPARTMENT OF CORRECTIONS [2022] NZHC 1222 [27 May 2022]
Summary
[1] On 13 April 2022,1 Mr David Cadle was sentenced to intensive supervision for a period of 18 months for pleading guilty to the following charges: two counts of driving while disqualified;2 theft;3 escaping custody;4 and breach of release conditions.5 Mr Cadle was disqualified from holding or obtaining a driver licence for a period of 12 months.
[2] On 19 April 2022, Mr Cadle filed a notice of appeal against Judge Farish’s decision to disqualify him from driving for a period of 12 months, starting 11 November 2022 (the appellant having previously been disqualified until that date). No other part of the decision is appealed.
Facts
[3] The two driving while disqualified charges relate to Mr Cadle’s sixteenth and seventeenth offences. The charge of theft relates to a window cleaning brush valued at $20. Similarly, the escaping custody charge is not significant as the appellant managed to get about 10 metres away in what the Judge described as a “half-hearted and poorly conceived” attempt.6 Finally, the breach of release conditions charge arises from a failure to report.
District Court decision
[4] On 18 August 2021, Mr Cadle received a sentencing indication from Judge Farish in the Christchurch District Court. At that time, the Judge considered the appellant would be best suited to a rehabilitative programme and said that she would make a decision about whether a sentence of imprisonment would be delivered based on a pre-sentence report. The Judge indicated her view that a positive pre-sentence report would support consideration of a non-custodial sentence. Failing that, a short sentence of imprisonment of around two years would be imposed.
1 Police v Cadle [2022] NZDC 6627.
2 Land Transport Act 1998, ss 32(1)(a) and 32(4).
3 Crimes Act 1961, ss 219 and 223(d).
4 Section 120(c).
5 Sentencing Act 2002, s 96(1).
6 Police v Cadle, above n 1, at [6].
[5] Mr Cadle was sentenced on 13 April 2022. In sentencing him to 18 months’ intensive supervision, the Judge took into account Mr Cadle’s positive pre-sentence report, which demonstrated a motivation and willingness to engage in treatment. During this time, Mr Cadle was ordered to engage with the treatment programme of He Waka Tapu. In addition, the Judge took on the onus of judicially monitoring Mr Cadle, which involves receiving a report about Mr Cadle’s compliance every three months.
[6] On the question of disqualification, the Judge’s view was that the preferred course of action to break the pattern of Mr Cadle’s driving-related offending was to allow him an opportunity to obtain a driving licence and become legally entitled to drive, rather than disqualifying him. However, the Judge considered she was not permitted to do so under s 94 of the Land Transport Act 1998 (the Act) due to the operation of s 103.
[7] Because Mr Cadle had been convicted of driving in a dangerous manner in 2016 and 2018, the Judge considered that s 103(2)(d) meant the Court had no discretion to decide that Mr Cadle would not be disqualified. The Judge noted that if she had that discretion, she would have exercised it, as further disqualification was not conducive to rehabilitation, particularly in this case, where Mr Cadle’s offending was reducing in seriousness. The Judge specifically noted that the High Court might reach a different view on appeal.7
Grounds of appeal
[8] The grounds of appeal are that the Judge made an error in the interpretation of s 103(2)(d) of the Act. The sole issue on appeal is whether the District Court (and this Court on appeal) is permitted to impose a community-based sentence instead of disqualification.
7 At [21].
Submissions
For the appellant
[9] Mr Shamy, for the appellant, submits that the appellant was not barred from making an application under s 94 (to avoid disqualification) as he was not before the Court on a s 103(2)(d) qualifying offence and, at the time of sentencing, was not currently disqualified for a qualifying offence under s 103(2)(d). Accordingly, it was open to him to make an application under s 94.
[10] Mr Shamy submits that the Court of Appeal decision in Governor v Police supports the position advanced by the appellant.8 That case also deals with whether an application under s 94 can be made, albeit in the context of an alcohol interlock prohibition, rather than a dangerous driving prohibition. In Governor, the Court of Appeal preferred a narrow reading of the prohibition on making a s 94 application, based on public policy grounds, namely, the public interest in recognising that some defendants should not be disqualified and the removal of judicial discretion should not be overextended. This was especially the case given that advancing an application under s 94 is only the first step in having that application approved.
[11] The appellant submits that the Governor case is relevant despite it being decided in the alcohol interlock context because the language of the prohibitions in that and the present case is similar: both prohibitions are aimed at public safety and both cases involve considering the purpose of s 94.
For the respondent
[12] Ms Hallaway for the respondent submits that the Judge was correct in finding that the appellant was statutorily barred from making an application under s 94, and therefore, the appellant had to be disqualified.
[13] The respondent relies on Admore v Police9 in support of the proposition that s 94 should not be available to the appellant because he was convicted and discharged
8 Governor v Police [2021] NZCA 403.
9 Admore v Police HC Auckland CRI-2008-404-245, 3 December 2009.
for two qualifying offences within the last five years, although acknowledging that the present offending did not relate to a qualifying offence and the appellant was not subject to disqualification for a qualifying offence at the time of the offending for which he was convicted in the present proceeding. The submission for the respondent is that anyone disqualified for a dangerous driving offence in the previous five years is excluded from s 94. I will refer to this as the “broad interpretation” of s 94.
[14] In Ms Hallaway’s submission, Governor v Police does not change the position as that case concerned the relationship between the alcohol interlock regime and s 94 (by virtue of s 94(4)(aa) an offender cannot apply under s 94 if an alcohol interlock sentence has been ordered under s 65AC(1) of the Act). While acknowledging that the prohibitions imposed by ss 94(4)(aa) and 103(2)(d) are both targeted towards public safety, the respondent says that the imposition of an alcohol interlock sentence is an additional factor available to the Court which may mean that disqualification is not necessary. The alcohol interlock context involves sufficiently different public safety considerations so that the case cannot be applied to the dangerous driving context.
[15] In addition, the respondent says that the language of the alcohol interlock prohibition is different to the dangerous driving prohibition, rendering any comparison of treatment under the provisions unhelpful.
Relevant law
[16] Under s 250 of the Criminal Procedure Act 2011, an appeal against sentence is an appeal against a discretion and must only be allowed if the Court is satisfied that, for any reason, there was an error in the sentence imposed and a different sentence should have been imposed.10
Analysis
[17] The appellant applied under s 94 for substitution of a community-based sentence for disqualification. To make an application under s 94, the applicant must
10 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.
have previously been the subject of an order for disqualification.11 The applicant must also be eligible to apply for a limited licence under s 105 of the Act.12 Section 103 of the Act specifies who may apply to the Court for a limited licence. It sets out various circumstances that would preclude someone from making an application.
[18] The relevant portion of s 103 in this case is s 103(2)(d) which bars a person “who is disqualified by an order made on his or her conviction” for a specified offence [including dangerous driving] “committed within 5 years after the commission of any other offence specified in this paragraph and arising from a different incident …”.
[19] The sentence of disqualification that was breached, and for which Mr Cadle was being sentenced on this occasion, was imposed for a previous conviction for driving whilst disqualified, committed in 2020. However, Mr Cadle had previously been disqualified for dangerous driving, in 2016 and in 2018.
[20] In Admore v Police,13 the appellants were appealing sentences of disqualification in relation to excess blood alcohol charges (a s 103(2)(d) qualifying offence), both appellants having been previously disqualified (within the preceding five years) for excess blood alcohol offending.
[21] After a careful analysis of ss 94 and 103, and the legislative history of those provisions, Lang J said:
[42] Taken as a whole, I consider that the Select Committee’s report confirms that, in enacting s 94(4) in its final form, Parliament did not intend to restrict the application of s 94 to offenders who were already subject to a period of disqualification at the time of being sentenced on a subsequent charge.
[43] These factors lead me to conclude that the sentencing Judges in the present case correctly interpreted the manner in which s 94(4) is to be applied. I consider that Parliament intended that the benefit of s 94 should not be available to offenders who have been convicted of the offences specified in s 103(2)(a), (b) and (d) within the previous five years, regardless of whether or not they were still disqualified from driving when sentenced for later offending. The fact that Parliament has seen fit to include recidivist offenders who drive whilst disqualified within the category of persons who are eligible to receive the benefit of s 94 means only that it views such offenders in a different light and deserving of a different approach to sentencing.
11 Land Transport Act 1998, s 94(1)(a).
12 Land Transport Act 1998, s 94(4)(b).
13 Admore v Police, above n 9.
[22]The judgment concluded:
[44] I therefore consider that s 94(4)(b) must be interpreted as meaning that an offender will not be eligible to receive a community-based sentence under s 94 if he or she would not, if an order for disqualification was imposed in relation to current offending, be eligible to apply for a limited licence by virtue of s 103(2)(a), (b) or (d) of the Act.
[23] Mr Shamy observes that Mr Cadle’s situation is two steps removed from the position of the appellants in Admore: he is not before the Court on a qualifying offence and he is not currently discharged on a qualifying offence.
[24] I acknowledge that this case is not on all fours with the facts in Admore, or Trainor v Police,14 also cited by the appellant. In Trainor the appellant was being sentenced for driving while disqualified and was at the time of sentencing subject to disqualification for dangerous driving. Justice Nation found that there was no jurisdiction to consider an application under s 94.
[25] Nevertheless, on the face of it, the analysis applied in Admore applies to render Mr Cadle ineligible to make an application under s 94. Although he was not disqualified for a qualifying offence at the time of the offending for which is now being sentenced, he has twice been disqualified for a s 103(2)(d)(i) offence in the preceding five years.
[26] However, as previously recognised by the courts and a number of commentators, the deficiencies in the drafting of the LTA legislation mean that limited weight can be placed on the precise wording of the provisions.15 Rather, the broad construction of the legislation must be consistent with its purpose.16 The Court of Appeal decision in Governor shifts the focus of the mandatory disqualification scheme of the LTA to the purpose of s 94, rather than its precise wording. The meaning of legislation is to be ascertained from its text and in the light of its purpose and context.17
14 Trainor v Police [2019] NZHC 2009.
15 Admore v Police, above n 9, at [26]; Governor, above n 8, at [47]; Ellen McLay “Governor v Police: A Purposive Approach to Alcohol Interlocks and s 94 of the Land Transport Act 1988” [2021] NZLJ 388, at 392; and see also Russell Nye-Wood “The Public Interest in Prompting Compliance with an Alcohol Interlock Sentence: Scadden v Police” [2021] NZLJ 162.
16 Governor, above n 8, at [47].
17 Legislation Act 2019, s 10(1).
[27] The further question is therefore whether the judicial shift in focus to the purpose of s 94, brought about by the subsequent decision of the Court of Appeal in Governor v Police, supports a narrower interpretation of s 103. The purpose of s 94 is to enable repeat offenders to get off a never-ending cycle of disqualification where a disqualification leads to further offending and further periods of disqualification.18 The Court of Appeal observed that a community-based sentence under s 94 might be more likely to engender compliance with court orders.19
[28] In Governor, the appellant was appealing conviction for a charge of driving while disqualified for offending which took place while she was subject to an alcohol interlock sentence.20 The issue on appeal was whether s 94(4)(aa) excluded Ms Governor from a community-based sentence for her subsequent offending, as a result of the earlier alcohol interlock sentence. The broad construction had the effect of excluding from s 94 anyone ordered to serve an interlock sentence.21 The Court, instead, preferred the narrow construction with the effect that s 94 operated to exclude a community-based sentence only for offenders subject to ss 65AC and 65AE.22
[29] The Court of Appeal also noted that s 94 is an enabling provision; the Court is not required to impose a substituted sentence.23 The Court must be satisfied that a further period of disqualification is inappropriate, having regard to the matters in s 94(1)(b) (the circumstances of the case and the offender, including the nature of the offending and the offender’s driving record) and that a community-based sentence would be appropriate. At that point the Court can have specific regard to any public safety considerations.
[30] While, as the respondent argues, Governor was decided in the alcohol interlock context, it is clear that the focus of the Court of Appeal’s discussion was principally on the purpose of s 94 and whether a narrow or broad interpretation would better give effect to that purpose.24 The case did not turn on the availability of the additional
18 Governor, above n 8, at [11]; McLay, above n 15, at 392; and Nye-Wood, above n 15, at 165.
19 Governor, above n 8, at [11].
20 Governor, above n 8, at [2]-[4].
21 At [15].
22 At [14].
23 Governor, above 8, at [40].
24 At [37]-[47].
safety mechanism provided by an alcohol interlock sentence. The Court concluded that the purpose of s 94 supports a narrow construction. In focussing its discussion principally on the purpose of s 94, the Court of Appeal implicitly rejected the strict analysis adopted in Admore.25 As Mr Shamy submitted, the broad purposive analysis of Governor makes the case a readily transferable decision when applying s 94 to contexts other than the alcohol interlock context.
[31] In my view, and as the District Court Judge emphasised, Mr Cadle would be an appropriate candidate for the exercise of the s 94 discretion. He has been subject to a disqualification in one form or another for more than 10 years.26 The present proceedings have arisen as a result of Mr Cadle’s sixteenth and seventeenth offences of driving while disqualified. He is currently subject to a disqualification until November 2022. If the disqualification that was imposed in the District Court were to be upheld, he will remain disqualified until November 2023. It is clear Mr Cadle is well and truly on the never-ending cycle of disqualification.
[32] For this reason, as in Governor v Police, I do not consider denying Mr Cadle the benefit of an application under s 94 would be consistent with Parliament’s intention in enacting the provision.27 Consistent with Governor, I prefer a narrower interpretation of s 103 which permits the appellant to advance an application under s 94 as he was not disqualified for a qualifying offence under s 103(2)(d) at the time of sentencing and is not being sentenced for a qualifying offence.
[33] I emphasise that this interpretation only allows a defendant in the appellant’s case to advance an application. Whether or not the application is accepted remains a question to be assessed in each particular case. As the Court of Appeal said in Governor,28 “disqualification periods still have an important function”.
[34] Here, I agree with the District Court that the circumstances of the case warrant exercise of the discretion under s 94. Continuous disqualification would not serve any rehabilitative purpose for the appellant. As recognised by the District Court Judge,
25 See [42]-[47].
26 Police v Cadle, above n 1, at [7].
27 Governor, above n 8, at [41].
28 At [40].
the seriousness of the appellant’s offending has reduced over time. In addition, I note the Judge’s remarks about the appellant’s willingness and motivation to rehabilitate himself through engagement with the programme at He Waku Tapu and his desire to assist whānau in Gisborne. Mr Cadle’s rehabilitation efforts are supported by the pre- sentence reports.
[35] Accordingly, I see no useful purpose in remitting the matter back to the District Court for consideration of the application afresh. Instead, I grant the application under s 94. The District Court imposed an 18 months period of intensive supervision. In my view, having regard to the fact that the maximum intensive supervision sentence is two years,29 and the sentences imposed in relatively similar cases,30 that period is adequate to also take account of the removal of the disqualification order.
Outcome
[36] The appeal against the District Court’s decision to disqualify the appellant from driving for a period of 12 months, starting 11 November 2022, is allowed.
[37]The appellant is to be subject to 18 months’ intensive supervision.
Gwyn J
29 Sentencing Act 2002, s 54B.
30 See, for example, Rennie v Police HC, Auckland CRI-2011-404-000174, 10 October 2011, a sentence of 18 months’ intensive supervision was quashed and substituted for a 12-month sentence for driving while disqualified (3rd or subsequent); breaching prison release conditions; and giving false identity information offences. In M v Police [2022] NZHC 796, a sentence of three months’ community detention and 15 months’ intensive supervision was ordered for one representative charge of indecent assault; one charge of assault in a family relationship; and one charge of driving whilst disqualified.
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