Christians v Police

[2024] NZHC 2191

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2024-404-282 [2024] NZHC 2191

BETWEEN

DINO CHRISTIANS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	5 August 2024
Appearances:	A M H Cranston for the Appellant J Kim for the Respondent
Judgment:	6 August 2024

JUDGMENT OF HARVEY J

This judgment is delivered by me on 6 August 2024 at 4 pm pursuant to r 11.5 of the High Court Rules.

.....................................................

Registrar / Deputy Registrar

Solicitors/Counsel:

Kayes Fletcher Walker, Auckland Public Defence Service, Auckland

CHRISTIANS v NEW ZEALAND POLICE [2024] NZHC 2191 [6 August 2024]

Introduction

[1]    On 21 May 2024, Judge S Alofivae at the Manukau District Court sentenced Dino Christians to disqualification for a period of 12 months and one day on a charge of driving while suspended (third or subsequent).1 He appeals that sentence as manifestly excessive on the grounds that the Judge erred in declining his application under s 94 of the Land Transport Act 1998 (LTA).

[2]    At yesterday’s hearing I confirmed that the appeal was allowed and the s 94 application was granted. The sentence would be quashed and instead the appellant was sentenced to 120 hours community work. Counsel then submitted that the completion of a defensive driving course might also be appropriate. However, Mr Kim was unsure as to whether that could be imposed without a sentence of supervision. Counsel were directed to file a joint memorandum on this issue which has now been received.

Summary of facts

[3]    In 2019, the appellant’s class 2 driver’s licence was disqualified by the New Zealand Transport Agency (NZTA) due to him not being a fit and proper person to have a class 2 licence. On 26 July 2021, the appellant was convicted in the Manukau District Court of driving while suspended (third or subsequent). On 3 September 2023, Constable Qaraniqio served a demerit suspension notice to the appellant at his home address. Less than a month later on 1 October 2023, the appellant drove a heavy motor vehicle and was stopped as its certificate of fitness had expired. Police records confirmed that the appellant was suspended from driving due to the demerit suspension notice. NZTA confirmed his previous disqualification from driving class 2 vehicles in 2019. In explanation, the appellant stated that he could not remember being served anything.

District Court decision

[4]    The Judge noted that the appellant had made a s 94 application under the LTA. The appellant had filed an affidavit but the Judge suggested it was more appropriate

1      Police v Christians [2024] NZDC 12254.

for a limited licence to be granted, and encouraged the appellant to apply for one. The Judge concluded:

[3]    At some point the penny must drop for you that your behaviour on the roads is not acceptable. There are rules and laws for a reason. You lost your licence through demerit points, I understand you have now got it back, and the disqualification that would apply in this case is 12 months and one day.

[4]    Accordingly, I am going to disqualify you 12 months and one day, there will be no other penalty on that. I encourage you to apply for the limited licence immediately. I am confident it will get granted.

Appellant’s submissions

[5]    Ms Cranston submitted that the Judge placed too much emphasis on imposing a disqualification due to the appellant’s history and the possibility that he could apply for a limited licence. Counsel contended that applications brought under s 94 of the LTA should be determined according to the four criterion outlined under s 94(1)(b)(i)– (iv). Ms Cranston argued that the Judge did not consider these criterion. In addition, counsel submitted that following authorities were examples of where s 94 applications were heard afresh on appeal:

(a)Thomas v Police2 — Mr Thomas pleaded guilty to two charges of driving while disqualified. He was sentenced to community work and disqualified from driving. He appealed the periods of disqualification. On appeal, both counsel identified the Judge made an error by noting Mr Thomas was able to apply for a limited licence when he in fact, could not. It was agreed that it would be appropriate to consider the matter afresh.

(b)Reddy v Police3 — Mr Reddy was convicted of driving while disqualified. He appealed his sentence on the ground that the Judge made an error by wrongly stating he could apply for a limited licence. In light of the possible ambiguity as to the implications of the applicant’s eligibility to apply for a limited licence, a fresh application was heard.

2      Thomas v Police HC Tauranga CRI-2010-470-15, 13 May 2010.

3      Reddy v Police HC Auckland CRI-2010-404-217, 17 September 2010.

(c)Poona v Police4 — Mr Poona pleaded guilty to four charges of driving whilst disqualified and was sentenced to community work and disqualified from driving for a period of eight months. He appealed the Judge’s dismissal of his s 94 application. On appeal the Court concluded that the District Court Judge erred when considering Mr Poona’s past driving convictions favoured continued disqualification.

[6]    Counsel contended that this appeal is similar to both Reddy and Poona. In Reddy, the s 94 application was declined on the basis that the appellant was eligible to apply for a limited licence. In Poona, remarks similar to that of the Judge were made about the appellant’s behaviour on the road being unacceptable. Ms Cranston argued that the Judge erred in considering the appellant’s history and limited licence eligibility weighed in favour of disqualification. Further, counsel submitted that where a defendant is eligible for a limited licence, this should not act as a bar to eligibility to make a s 94 application or be a reason for it to be declined.

Section 94 application

[7]    Ms Cranston then made arguments on the appellant’s application were it to be considered afresh. Regarding the circumstances of the case and the offender, counsel submitted that this is the appellant’s third driving whilst suspended charge. The last time he was charged with this offending was in 2021. Ms Cranston highlighted that the appellant was not driving with excess breath alcohol on any of these occasions, nor was the manner in which he was driving in any way remarkable.

[8]    Counsel confirmed that the appellant was born in South Africa and came to New Zealand with no family support. He has a 10-year-old son he needs to drive to school and extra-curricular activities. He is a full-time employee as a team leader for Hermes Solutions Ltd, working six days a week from 8 am to 5:30 pm. His main duties include transporting his team to different building sites, buying and transporting material and machinery. The appellant needs to be able to drive to work. In addition, Ms Cranston underscored that the pre-sentence report recommended a sentence of

4      Poona v Police [2018] NZHC 791.

community detention. The appellant’s current address was assessed as technically feasible and suitable for an electronically monitored sentence if required.

[9]    Ms Cranston argued that the previous period of disqualification has been ineffective as the appellant has informed her that he has another charge of driving while disqualified. Further, counsel submitted that the disqualification has a major impact on the appellant’s employment and family. The appellant is very likely to offend again in the same manner in the future and has been caught in a cycle of offending. Ms Cranston contended that it is in the interest of justice that further offending be avoided and an alternative penalty to one of disqualification is imposed.

[10]   Counsel also argued that it is not in the public interest for the appellant to lose his livelihood. The nature of his offending does not endanger other road users. Ms Cranston submitted that this is a significant consideration in the exercise of the s 94 discretion. In summary, counsel contended that this is a case where the s 94 discretion should be exercised. She argued that the appellant is likely to drive again due to his employment and family responsibilities. According to Ms Cranston, disqualification is demonstrably not an effective penalty for the appellant and it would be inappropriate to order a further period of disqualification. Instead, counsel submitted that 100–120 hours community work was appropriate.

Respondent’s submissions

[11]   Mr Kim submitted that the Judge erred by declining the application on the basis that the appellant was eligible to apply for a limited licence when he was not. Counsel highlighted that the respondent also acknowledged there are compelling reasons in favour of an order under s 94 such that the Court may consider the appeal ought to be allowed. Mr Kim contended that it is open to the Court to consider the appellant’s s 94 application and overall sentencing afresh due to the Judge’s error in considering a limited licence was available to the appellant.

[12]   Counsel made four key submissions. First, the appellant has seven previous convictions for suspended driving but has not received any other convictions that suggest an issue with his driving generally. Mr Kim acknowledged the appellant’s

affidavit that details his responsibilities that require him to drive and that his employment obligations have been corroborated by his employer.

[13]   Secondly, previous orders of disqualification have been ineffective in deterring the appellant from driving while suspended. Having regard to the overall circumstances, the respondent accepted that the appellant is someone who is caught in a cycle of offending of suspended or disqualified driving. Thirdly, a further order of disqualification is likely to be ineffective due to the appellant’s history of offending.

[14]   Fourthly, the public interest in finely balanced in these circumstances. Mr Kim pointed to the appellant’s demerit history and also his present circumstances which require him to drive for employment and family obligations. In summary, Mr Kim argued that the end sentence is within range for the Court to consider a community- based sentence and that this is appropriate in the overall circumstances. Counsel submitted that if the appeal is allowed, the respondent accepts that in lieu of the mandatory disqualification, a sentence of community work or community detention would be appropriate. Mr Kim also suggested that a requirement for the appellant to complete a defensive driving course might also be justified, coupled with supervision.

Approach on appeal

[15]   Section 94 of the LTA permits a sentencing Judge to impose a community- based sentence instead of a mandatory period of disqualification. An order is made if the Court considers it inappropriate to order that the offender be disqualified from holding or obtaining a driver’s licence, and it would be appropriate to sentence the offender to a community-based sentence.5 In considering whether it would be inappropriate to order disqualification, the Court has regard to:6

(a)the circumstances of the case and of 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

5      Land Transport Act 1998, s 94(1)(b) and (c).

6      Section 94(1)(b).

(d)the interests of the public.

[16]   The appeal is governed by s 250 of the Criminal Procedure Act 2011. In short, this Court must allow the appeal if it is satisfied there is an error in the sentence and a different sentence should be imposed. The principles on appeals against sentence were summarised by the Court of Appeal in Tutakangahau v R:7

(a)a successful appeal requires identification of an error and the appellate court to be satisfied a different sentence should be imposed;8

(b)the appellate court does not start afresh nor simply substitute its own opinion for that of the sentencing judge — error must be shown, “whether intrinsically, or as a result of additional material submitted on appeal”;9

(c)if there is a material error, the appellant court will form its own view of the appropriate sentence;10

(d)although not referred to in s 250(2), whether a sentence is “manifestly excessive” provides a helpful means of examining the significance of the error to decide whether a different sentence should be imposed;11 and

(e)the focus is on whether the end sentence was within range, not the process by which that sentence was reached.12

Discussion

Should the s 94 application be heard afresh?

[17]   I accept that the Judge erred in declining the appellant’s s 94 application on the grounds that he was able to apply for a limited licence. Under s 103(2)(c), the appellant may not apply to the Court for a limited licence as he was disqualified from holding a driver’s licence for an offence against s 31(1) of the LTA. I also accept that the Judge should have determined the application with reference to the criterion in s

7      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.

8 At [27].

9 At [30].

10 At [30].

11     At [32]-[33] and [35].

12     At [36] and [40].

94(1) of which, whether or not a defendant can apply for a limited licence, is not determinative. Due to the brevity of the sentencing notes, I cannot discern the other grounds on which the Judge declined to allow the s 94 application. I will therefore hear the s 94 application afresh. The key issue is whether it would have been inappropriate to impose the otherwise mandatory period of disqualification, having regard to the matters listed in s 94(1)(b) and whether it is instead appropriate to sentence him to a community-based sentence.

Should the s 94 application be granted?

[18]   As to the circumstances of the case and the offender, I have considered the submissions of counsel and the affidavit prepared by the appellant. I accept that his previous convictions for driving offences are not related to dangerous driving. The appellant confirmed in his affidavit that he currently works as a journeyman, training to be a plumber and drainlayer. As mentioned, his duties include driving his team to and from different building sites, buying and transporting material, and transporting machinery. The appellant has a 10-year-old son that he needs to pick up from school and drive to his basketball games and trainings. His employment and familial responsibilities require him to drive if he wishes to maintain these obligations.

[19]   I accept counsel’s submissions that the previous orders of disqualification have been an ineffective deterrent. Due to the appellant’s responsibilities, he has been unable to adhere to the disqualification restrictions and as these obligations are ongoing, a prospective order is likely to be ineffective. I accept that the appellant is caught in the “wheel of offending” and any further disqualification order would maintain his capture.

[20]   In any event, I acknowledge that the public interest will in many cases favour a period of disqualification being imposed. The appellant clearly has a significant demerit point history and has deliberately flouted the Court’s orders regarding disqualification. There is also the aggravating factor of the appellant being charged with a further offence for driving while disqualified since being sentenced for this current charge. The appellant must accept that there are laws in place to keep the public safe, including himself. Falling foul of the demerit points system to such an

extent that it puts his licence and therefore his livelihood at risk is something the appellant needs to reflect on, given the potential future consequences should his conduct continue.

[21]   However, I consider that those aspects of the public interest must be weighed against the public interest inherent in any situation that involves the retention of successful employment and care of children. The wider public interest is in the appellant avoiding the cycle of disqualification and breach. Viewed overall, I consider that the public interest factor weighs in favour of the appellant rather than against him. Taking those factors into consideration, and notwithstanding the appellant’s further breach of his disqualification period, my conclusion is that it would be inappropriate to impose a further period of disqualification.

Sentence imposed in lieu of the orders for disqualification

[22]   Before the discretion under s 94 can be exercised, the Court must be satisfied that a community-based sentence would be appropriate in the overall circumstances.13 Mr Kim submitted a starting point in the vicinity of 11 to 12 months’ imprisonment would be appropriate for the charge, with an uplift of no more than two months for his previous convictions. The end sentence would be in range for the Court to consider a community-based sentence. I am satisfied that in these circumstances it is within range to do so.

[23]   The pre-sentence report considers a sentence of community detention would be appropriate. The report also noted that the appellant has breached a community work sentence twice, but Community Corrections records indicate that he completed his remaining hours on 25 February 2024. I accept counsels’ submissions that a community sentence is more appropriate in these circumstances. That said, the appellant should be under no illusion that, but for the responsibilities outlined above, and taking account of his history, the final sentence may have been different. I urge him to complete, within the correct allocated time, the sentence that will now replace that imposed in the District Court. As the Judge said, at some point the penny must drop that there are rules and laws for a reason. They must be obeyed.

13     Land Transport Act, s 94(1)(c).

Decision

[24]   The appeal is allowed. The period of disqualification imposed for the charge of driving while disqualified is accordingly quashed. Pursuant to s 94 of the LTA, I impose a sentence of 120 hours community work, supervision for nine months and a special condition that the appellant must complete a defensive driving course within that period of supervision.

[25]   To avoid doubt, the conviction and discharge for the charge of breach of community work handed down by the Judge stands.

Harvey J