Dwyer-Majer v Police
[2017] NZHC 2824
•17 November 2017
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
CRI-2017-470-000033 [2017] NZHC 2824
BETWEEN NATALIE JANE DWYER-MAJER
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 14 November 2017 Appearances:
R Webby for the Appellant
A Shore for the RespondentJudgment:
17 November 2017
JUDGMENT OF WOOLFORD J
This judgment was delivered by me on 17 November 2017 at 12:15 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Date:
Solicitors: Webby & Associates, Tauranga
Hollister-Jones Lellman (Office of the Crown Solicitor), Tauranga
DWYER-MAJER v NZ POLICE [2017] NZHC 2824 [17 November 2017]
[1] On 29 September 2017, Natalie Jane Dwyer-Majer was convicted of driving while disqualified for the third or subsequent occasion and sentenced to 100 hours community work. She was also disqualified from driving for one year.
[2] She now appeals against sentence on the basis that the District Court Judge should have granted her application to substitute a community-based sentence for the otherwise mandatory minimum period of disqualification of one year pursuant to s 94 of the Land Transport 1998.
Factual background
[3] The summary of facts records that on 26 May 2017, Ms Dwyer-Majer was suspended from driving for three months from 26 May 2017 until 25 August 2017 for excess driver demerit points. At about 9.41 am on Tuesday, 13 June 2017, Ms Dwyer- Majer was driving a Honda Odyssey motor vehicle north along State Highway 1 in Cambridge. At this time she was stopped by the Police for a routine vehicle, licence and sobriety check. When spoken to, she failed to produce a drivers licence admitting straight away to being suspended from driving. Subsequent enquiries confirmed her identity and the fact that she was a suspended driver.
[4] In an affidavit dated 22 September 2017 filed in support of the s 94 application, Ms Dwyer-Majer explained that she was travelling to Field Days at Mystery Creek, Hamilton, because she was interested in purchasing some possum traps and obtaining some information on skinning possums. She was also going to look at buying a plucker and to source people who may buy possum carcasses from her. She explained that she had been running a possum trapping business since April and had about 50 possum traps at various locations from Waitamo to Katikati.
District Court judgment
[5] In his sentencing notes, Judge C J Harding noted that Ms Dwyer-Majer had, in effect, decided to drive because it suited her with regard to the possum trapping business she was starting. He also noted that she knew full well that she was disqualified and that there was no discernible urgency for her driving. He concluded she drove because it was convenient.
[6] Judge Harding stated that this was a disturbing attitude which was somewhat reflected in the history which she had, in particular on demerit point and licence suspensions, which covered two pages with regular appearances in that respect in
2013, 2014, 2015 and 2016. Judge Harding was of the opinion that Ms Dwyer-Majer was someone who paid “scant regard to the obligations of drivers on the road”.
[7] Judge Harding referred to the s 94 application and reminded himself that he was required to consider the nature of the offence and Ms Dwyer-Majer’s circumstances. He noted that he had referred to both these considerations and then stated that he accepted entirely that this was a matter where the statutory threshold, as far as jurisdiction was concerned, was met, but concluded that he did not consider it appropriate to exercise his discretion to sentence Ms Dwyer-Majer to community work instead of further disqualification given the circumstance that he had described.
Appellant’s history
[8] Ms Dwyer-Majer has a moderate criminal history. She has two previous convictions for drink/driving in 2002 and 2009 for which she was disqualified from driving for six months and eight months respectively. She also has two previous convictions for driving while suspended in 2006 and 2007 in respect of which she was disqualified from driving for six months on each occasion. She has four convictions for breaches of community work. She has four convictions for violent offences in a family context in 2011 (x 3) and 2013, as well as two drug related convictions in 2011.
[9] Ms Dwyer-Majer’s demerit point and licence suspension history report also records that her licence was suspended for three month periods for excess demerit points in 2004, 2006, 2007, 2014 and 2017. It was during the last period of suspension from 26 May 2017 to 25 August 2017 that Ms Dwyer-Majer was found to be driving while suspended.
Section 94 of the Land Transport Act 1998
[10] Section 94 of the Land Transport Act 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
(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
(b) the offender is prohibited from applying for a limited licence under section 103(2)(a), (b), or (d).
[11] In Wilson v Police, Dobson J held:1
Section 94 should only justify a variation from the norm where the personal circumstances of the offender, and in particular the rehabilitative prospects, justify affording the offender an opportunity to break the cycle of circumstances contributing to the recidivist offending.
[12] More recently, in Parata v Police, Downs J cited Wilson v Police with approval, holding that:2
I respectfully endorse the approach of Keane and Dobson JJ, for, the provision makes plain the offender’s interests are but part of the statutory mix. And, too ready resort to s 94 could undermine the efficacy of disqualification as a penalty more generally.
Approach on appeal
[13] An appeal against sentence is governed by s 250 of the Criminal Procedure Act
2011. It provides:
250 First appeal court to determine appeal
(1) A first appeal court must determine a first appeal under this subpart in accordance with this section.
(2) The first appeal court must allow the appeal if satisfied that—
(a) for any reason, there is an error in the sentence imposed on conviction; and
(b) a different sentence should be imposed.
(3) The first appeal court must dismiss the appeal in any other case.
[14] The Court must only allow the appeal if it is satisfied that both there was an error in the sentence imposed on conviction and a different sentence should be imposed.
Discussion
[15] Ms Dwyer-Majer appeals on the basis that Judge Harding erred in refusing to exercise the discretion contained in s 94 to substitute a community-based sentence in that he did not consider each of the elements of s 94 in reaching his decision not to
grant her application under s 94.
1 Wilson v Police [2014] NZHC 3028 at [12].
2 Parata v Police [2016] NZHC 3026 at [10].
[16] The first element to which the Court is directed to have regard is the circumstances of the case and of the offender. Judge Harding clearly did consider the circumstances of the case and of Ms Dwyer-Majer.
[17] There are, however, three other elements to which the Court is directed to have regard:
(a) The effectiveness or otherwise of a previous order of disqualification made in respect of the offender;
(b) The likely effect on the offender of a further order of disqualification;
and
(c) The interests of the public.
[18] The fact that Judge Harding may not have made specific reference to these elements does not necessarily mean that he has erred in exercising his discretion not to substitute a community-based sentence for the period of disqualification.
[19] As to the effectiveness or otherwise of a previous order of disqualification, Ms Dwyer-Majer has been suspended for demerit points on five occasions. However, she has only breached those suspensions on two occasions in 2006 and 2007, which is now over 12 years ago. Certainly, the imposition of the demerit points suspensions appears to be effective in 2004 and 2014. Given that Ms Dwyer-Majer was last disqualified from driving in 2007, that period of disqualification appears to have been effective, which in turn implies that another period of disqualification would also be effective as a deterrent.
[20] As to the likely effect on Ms Dwyer-Majer of a further order of disqualification, she explained in her affidavit that she lives in a rural area near Tauranga. When she was looking to travel to Field Days she said that she considered taking a bus, but said that she could not get to the bus station without having to drive or get someone to take her there. Her counsel submits that there is, therefore, no publicly available public transport for her. Ms Dwyer-Majer also deposed that she shares the care with her ex-
partner of their four children, aged 16, 7, 5 and 3, but accepted that there are no health or other concerns which would make disqualification disproportionately severe.
[21] Although I acknowledge Ms Dwyer-Majer lives in a rural location, she lives approximately two kilometres from State Highway 2, which is a major public transport route. I accept that Ms Dwyer-Majer will have difficulty in continuing with her possum trapping business, but this seems to have started only in April 2017, the month preceding the three month period of suspension, which was effective from 26 May
2017. She is, however, still able to travel to undertake the community work ordered by Judge Harding.
[22] Finally, the fourth element that a Court is directed to consider in terms of s 94 is the interests of the public. In this regard, I accept the Crown’s submissions that this is a case where the public interests are of significance as opposed to a situation where there are no safety concerns arising. I am of the view that there are not insubstantial risks to the safety of the public due to Ms Dwyer-Majer’s disregard for transport laws. She has accumulated 11 previous speeding demerits including exceeding 50km (x 2) leading to the latest suspension in May 2017. Speeding on New Zealand roads, in particular in rural areas, is of real concern and can sometimes lead to disastrous consequences.
[23] There is also a public interest in showing that Court orders are complied with. It must be recognised that there is an advantage to the public in it being clearly understood that there will be a usual and not insubstantial punishment for the offence of driving while disqualified, namely a further period of disqualification.
[24] In the all circumstances, I am of the view that there is no error in the sentence imposed by Judge Harding. The appeal is dismissed.
Woolford J
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