Deery v Police
[2025] NZHC 290
•25 February 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2024-404-652
[2025] NZHC 290
BETWEEN LEVI JAMES DEERY
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 25 February 2025 Appearances:
J Verry for Appellant
J T Lowyim for Respondent
Judgment:
25 February 2025
JUDGMENT OF LANG J
[on appeal against sentence]
This judgment was delivered by Justice Lang On 25 February 2025 at 4.00 pm
Registrar/Deputy Registrar Date:…………………………
Solicitors/counsel:
J Verry, Barrister, Auckland
Meredith Connell, Office of the Crown Solicitor, Auckland
DEERY v POLICE [2025] NZHC 290 [25 February 2025]
[1] Mr Deery is 33 years of age. Surprisingly, after obtaining a learner’s drivers licence approximately 16 years ago he has never gone on to obtain a restricted or full licence.
[2] On 4 July 2023, Mr Deery was stopped by the police whilst driving a motor vehicle on Great North Road, Kelston. The police stopped the vehicle because it was displaying number plates belonging to another vehicle that had been stolen.
[3] When the police searched the vehicle, they found a ziplock bag containing a small quantity of methamphetamine under the driver’s seat. A methamphetamine pipe was also secured to the sun visor in the vehicle. This led to the police charging Mr Deery with unlawfully using a motor vehicle,1 being in possession of methamphetamine2 and driving whilst disqualified.3 Mr Deery had earlier been disqualified from driving for a period of six months on 15 March 2023.
[4] Mr Deery eventually entered guilty pleas to all charges. On 13 November 2024, Judge P L Murray sentenced Mr Deery to 50 hours community work on each charge.4 This resulted in a sentence of 150 hours community work. In addition, the Judge sentenced Mr Deery to 12 months supervision and disqualified him from driving for a period of six months.
[5] Mr Deery appeals against sentence. He says the sentence of 150 hours community work is manifestly excessive. In addition, Mr Deery contends the Judge erred in imposing a period of disqualification. He says the Judge ought to have granted his application under s 94 of the Land Transport Act 1998 (the Act) for an order imposing a further community-based sentence rather than a period of disqualification.
1 Crimes Act 1961, s 226(2) — maximum penalty two years’ imprisonment.
2 Misuse of Drugs Act 1975, s 7(1)(a) and (2) — maximum penalty six months’ imprisonment or
$1,000 fine.
3 Misuse of Drugs Act 1975, s 7(1)(a) and (2) — maximum penalty six months’ imprisonment or
$1,000 fine.
4 New Zealand Police v Deery [2024] NZDC 29002.
Were the sentences of community work manifestly excessive?
[6] The Judge did not give reasons explaining why he decided to impose cumulative sentences of community work. Nor did he expressly say that in imposing 50 hours community work on each charge he had taken the guilty pleas and totality principles into account. Ms Verry contends on Mr Deery’s behalf that, had the Judge applied totality principles, he would have imposed a sentence of no more than 50 hours community work on all charges.
[7] This submission needs to be considered in light of the fact that, as a matter of general principle, it does not matter whether concurrent or cumulative sentences are imposed. It is essential, however, that the end sentence is not wholly out of all proportion to the overall gravity of the offending.
[8] The charges all flowed from a single incident that occurred after the police encountered Mr Deery driving a motor vehicle that was not associated with the registration plates it was displaying. However, the three offences he admitted were different in nature. They related to Mr Deery being unlawfully in a stolen motor vehicle, being in possession of a small quantity of methamphetamine and driving whilst disqualified. It follows that I am satisfied that it was open to the Judge to impose cumulative sentences on each charge.
[9] The charge of driving whilst disqualified was aggravated by the fact that Mr Deery has previous convictions for similar offending. These comprise a charge of failing to comply with a prohibition on driving as an unlicensed driver, as well as driving whilst his license was suspended or revoked. He committed these offences on 11 September 2015 and 22 August 2022 respectively. He then drove whilst disqualified on 28 November 2022. The resulting period of disqualification imposed on 15 March 2023 led to the present charge of driving whilst disqualified.
[10] For the respondent, Mr Lowyim has provided me with several sentencing authorities in which sentences of around 100 to 150 hours community work have been
imposed on charges of driving whilst disqualified.5 He has also provided me with authorities supporting a sentence of around 100 hours community work on charges of unlawfully getting into a motor vehicle.6 The fact that Mr Deery was in possession of a quantity of methamphetamine also needed to be taken into account.
[11] Having regard to the circumstances of all three charges, I cannot say that a starting point of 150 hours community work was outside the available range for all charges. However, it is not clear that the Judge took into account totality principles and the entry of guilty pleas. I would reduce the sentence by 20 per cent to ensure these factors are taken into account.
Should the Judge have made an order under s 94 of the Land Transport Act 1998?
Relevant principles
Section 94 of the Act provides as follows:
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
(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
5 Sausoo v Police HC Auckland CRI-2009-404-301, 10 November 2009; Ross v Police HC Wellington CRI-2003-485-29, 9 September 2003.
6 Maeva v Police HC Auckland CRI-2010-404-402, 11 March 2011; Borell v Police [2014] NZHC 2422; Lord v Police [2015] NZHC 1756.
(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.
[13] In enacting s 94 Parliament must be taken to have accepted that in certain circumstances it will be appropriate for a repeat offender to be sentenced to a community-based sentence rather than a further period of disqualification. The concern underpinning s 94 is that some offenders become trapped in a cycle of offending created by the accumulation of successive orders for disqualification. These lead the offender to become frustrated and conclude there is no light at the end of the tunnel. This leads in turn to further offending and the imposition of further periods of disqualification.
[14] Parliament recognises that this type of situation is peculiar to offenders who persistently drive whilst disqualified. Section 94 represents Parliament’s endeavour to provide an alternative form of sentence so that the cycle of offending can be broken.
The Judge’s decision
[15] Mr Deery filed an affidavit in support of his application explaining why he needed to be able to drive. He said it was necessary for him to be able to drive so that
he could find work and assist his family. He said he felt unable to rely upon public transport to meet these objectives.
[16] The Judge considered it was not appropriate to grant the application for the following reasons:
[28] The two previous disqualifications have been breached, although not repeatedly. You have breached each order once some months after it was imposed.
[29] What are the effects on you? You say you need to be able to drive to get a job. You also say there are family and personal obligations that require you to drive.
[30] In your affidavit, you say public transport is unreliable and suggest that it is not an option to get to job interviews or to work. I asked the question about where you were living deliberately because before coming into court today, I have had a look at your address and where it is relative to public transport and other things in the community.
[31] Where you live is within walking distance of two train stations. There are regular bus services that go right past your front door. There are bus stops within 100 metres from your home. In fact, when you look on Google Maps, at your address on the street view, there is a bus coming down the road. What you say about public transport is not correct. Many people in the community manage to get jobs and get to them by way of public transport.
[32] You have provided no evidence about the type of work you want to do or any efforts that you have made at getting a job. I accept you want to work but there is no evidence beyond a general desire.
[33] You also say you want to help with your household. Neither of your stepchildren have driver's licences but your partner has a full licence, you have told me. There are several amenities, a small shopping centre about 140 metres from where you live.
[34] There is no real detail in the affidavit about the driving you want to do to help with your parents or your stepchildren, although I accept that in each of their circumstances they need to be driven to various places.
[35] The interests of the public are pretty clear in keeping someone off the road who both will not stick to their licence conditions and who is prepared to have Class A drugs and a pipe to smoke them in the car. It is an open inference from the presence of those things that you are prepared to smoke methamphetamine at least around the time that you are driving.
[36] If I grant this application, I think it is unlikely you will stick to the conditions of your learner's licence. This is because you need to have a person with a full car licence with you at all times. If such a person is available, as they would need to be, it would remove your need to drive. That person could simply do the driving.
[37] You also need to do something about your use of drugs. You say you are willing to do that as part of the sentence. It would have been better to have seen you made some effort to address that before today.
[38] There are public safety concerns which outweigh your desire and your need to drive. I am not satisfied that there is a public interest in you being able to drive at the moment. The evidence that you have provided is generic and vague. There is no special hardship or any other factor that is contrary to the clear public interest in keeping you off the road.
[17] Mr Deery has not adduced any further evidence on the appeal to address the concerns expressed by the Judge. I consider these to be valid and relevant to the decision he was required to make.
[18] In support of the appeal Mrs Verry referred me to the approach taken by Davison J in Poona v Police.7 However, the application of s 94 in any given case is entirely driven by context. The approach taken in other cases is therefore rarely of significant assistance. This is demonstrated by the fact that in Poona the appellant had driven whilst disqualified on four occasions in a one month period. He was just over 20 years at the time of the offending. Davison J was prompted to invoke s 94 because the appellant was “a young man whose repeat offending appears to be the result of immaturity and a lack of consequential thinking”.8
[19] I do not consider Mr Deery falls within the category of offender to whom Parliament intended s 94 to apply. This is because he cannot realistically be regarded as a recidivist offender. I put to one side for present purposes the conviction in 2015 for failing to comply with a prohibition as an unlicensed driver. Thereafter he has only been convicted on two occasions of driving whilst disqualified and on one occasion of driving whilst suspended. Those convictions all relate to incidents that occurred within a relatively short space of time between August 2022 and July 2023. Further, Mr Deery did not begin offending in this way until after he was over 30 years of age. He appears to have been able to abide by the terms of his learner’s licence for a period of approximately 15 years prior to August 2022.
7 Poona v Police [2018] NZHC 791.
8 At [36].
[20] Although the Judge was plainly concerned that Mr Deery may not abide by the terms of his learner’s licence, I consider it would be premature to accept Ms Verry’s submission that Mr Deery is likely to commit further offences of driving whilst disqualified on future occasions. I draw support in this context from the fact that, although he committed the present offences on 4 July 2023, he appears to have been able to abide by the terms of his licence since that date.
[21] I therefore do not consider it would have been appropriate for the Judge to make an order under s 94 rather than impose a further period of disqualification.
Result
[22] The appeal against sentence is allowed to the extent that the sentence of community work imposed on each charge is reduced from 50 hours to 40 hours. The appeal against the order disqualifying Mr Deery from driving for a further period of six months is dismissed.
Lang J
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