Essahaty v Police

[2014] NZHC 2800

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2014-485-71 [2014] NZHC 2800

BETWEEN

IBRAHIM ESSAHATY

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	11 November 2014
Counsel:	Appellant in person G A Kelly for Respondent
Judgment:	12 November 2014

JUDGMENT OF MACKENZIE J

I direct that the delivery time of this judgment is

11.00 am on the 12th day of November 2014.

Solicitors:           Crown Solicitor, Wellington for Respondent

Copy to:            Mr Essahaty

ESSAHATY v NEW ZEALAND POLICE [2014] NZHC 2800 [12 November 2014]

[1]      Mr Essahaty pleaded guilty in the District Court at Wellington to one charge of driving while suspended, under s 32 of the Land Transport Act 1998 (the Act).1

He was discharged without conviction, but disqualified for six months.  He appeals against the disqualification.

[2]      At sentencing, his counsel presented two sets of written submissions, one in support of an application for discharge without conviction and one in support of an application to reduce or remove the mandatory disqualification prescribed in s 32 of the Act.  In support of the application for discharge without conviction, his counsel acknowledged that offending relating to this kind of offence is serious, but described the present circumstances as “certainly not the most serious of its kind”.  He said that the appellant was, when he committed the offence, on a family errand to buy carbohydrates for his sister who suffers from Type I diabetes.  She had a sudden and unexpected sugar spike and the appellant was asked by his mother to go to the supermarket quickly to buy bread.  He did so without properly stopping to consider the consequences of his action.  When he was stopped by Police he did not think to try to excuse himself but simply apologised to the Police for his mistake.  Counsel submitted that the consequences of a conviction, in affecting the possibility of his being able to travel to America for work in the future, would be out of all proportion to the gravity of that offending.

[3]      In his separate submissions on disqualification, counsel addressed the need for the appellant to show “special reasons relating to the offence” under s 81 of the Act.  Counsel again relied upon the circumstances of the offending to which I have referred.    He submitted that  special  reasons  could  be found because, while not amounting to a defence, the circumstances were mitigating or extenuating circumstances directly connected with the offence.   Counsel relied upon affidavit evidence to support the circumstances and the consequences of a suspension.   He submitted that the Court should exercise its discretion not to disqualify the appellant because he requires his licence for the purposes of assisting his mother for household shopping and taking his siblings to school and school based events, and any disqualification will penalise his family as much as himself.

[4]      In his brief sentencing notes, the Judge said that counsel had persuaded him to  do  something  he  had  not  been  intending  to  do.    He  noted  that  there  was insufficient evidence for him to come to a firm conclusion about the effects of the conviction.  He noted that there could be effects and accepted that young people do find it difficult to obtain employment and said “perhaps I can forgive you on this one

occasion”.  He then said:2

[3]       I think the evidence about why you were travelling again is not particularly satisfactory, there is some evidence about it, and also you were found in the vicinity where you should have been if you were going to the supermarket.   But why you did not say, “Look, I just have to get to the supermarket, I’m sorry, we’ve got an emergency,” or something.   I do not know why you did not just say that.

[4]       In any event I have been convinced by Mr McGuinniety, and I do not want this to be seen as an encouragement for him to try and do it again, or for this to be quoted back at me again and again, but I am going to discharge you without conviction but I am going to disqualify you at the same time.  That means you have got a clear record for now.  If you drive again, well, that is the end of it.

[5]       So  you  are  discharged  without  conviction  but  disqualified  from

holding or obtaining a driver’s licence for six months from today.

[5]      The appellant challenges the Judge’s decision to reject his application to reduce or remove the disqualification, or alternatively for a community based sentence to be imposed in lieu of the mandatory disqualification.   In his written submissions, which he supported orally at the hearing before me, he refers to the circumstances and to the affidavits from himself and his mother, setting out those circumstances.   Both of those were before the District Court.   He says that he considered that he was in a situation where he had no option but to drive and that he did not stop to think of the consequences of his action, but acted immediately at the request of his mother.  He submits that the Court should exercise its discretion not to disqualify him because he requires his licence for the purpose of attending university and for the purpose of assisting his mother for household tasks such as shopping and taking his siblings to school and school-based events and that any disqualification would penalise his family as much as himself.  He relies on evidence additional to that produced in the District Court.   First, he has produced a bank statement confirming  that  he  had  purchased  goods  from  the  supermarket  on  the  day  in

question.  Second, he has produced evidence about the outcome of his appeal against the seizure and impoundment of his motor vehicle.  That was allowed because the police accepted that he drove in a medical emergency, and so released his vehicle from the impoundment.  He submits that the circumstances relating to the offence are special  and  can,  and  should,  mean  that  the  imposed  disqualification  should  be uplifted or the length of disqualification reduced.

[6]      Ms Kelly, for the respondent, submits that while the Judge did not expressly consider whether special reasons applied, it can be inferred that he must have considered the material on the s 81 issue.  She further submits that the decision to impose the mandatory minimum disqualification was open to the Judge, and the period imposed was not manifestly excessive.   She submits the appeal should be dismissed.

[7]      The   Judge   did   not   in   his   sentencing   notes   address   specifically   the submissions about disqualification.  It is clear that he must have had in his mind the written submissions of counsel, and the oral submissions in support.  It is clear that the Judge’s view that the appropriate outcome was that there should be a discharge without conviction, but that special circumstances did not justify a reduction of the mandatory disqualification.  The brevity of his sentencing notes reflects the demands of a busy list Court.   However, because the point was not expressly addressed, I consider afresh, on the basis of the material before this Court, whether the Judge’s decision   not   to   depart   from   the   mandatory   minimum   disqualification   was appropriate.

[8]      Section 32(3) of the Act provides that if a person is convicted of a first or second offence of driving while disqualified, the Court must order the person to be disqualified from holding or obtaining a drivers licence for six months or more. Section 81 provides:

(1)      If any provision of this Act (other than section 63) requires a court to disqualify a person from holding or obtaining a driver licence or transport service licence  for  a period not  less than the specified minimum period, the court must order that the person be disqualified accordingly  unless  for  special  reasons  relating  to  the  offence  it thinks fit to order otherwise.

[9]      That imposes a high threshold for a person seeking to avoid the mandatory minimum disqualification.  The test of whether there are special reasons relating to the  offence  which  justify  a  departure  from  the  mandatory period  is  a  different question from that under s 106 of the Sentencing Act 2002, as to whether there should be a discharge without conviction.  Not all the factors which led the Judge to discharge without conviction were relevant to the disqualification issue.  The focus must be on whether there are special reasons relating to the offence to depart from the mandatory minimum.  I do not find such special reasons.  The appellant intended to drive.   That is inherent in his plea of guilty.   I do not consider that the circumstances constituted an emergency which would justify a conclusion that there should be no consequences at all to the appellant from his deliberate decision to drive.  Any hardship which he might suffer as a consequence of the disqualification is not a special reason relating to the offence which can be taken into account.  Even if it could be taken into account, I consider that the matters relied upon as creating hardship are no more than the usual inconvenience which will usually follow from an order for disqualification.

[10]     I consider the appellant may count himself fortunate to have escaped without conviction, and with no consequence other than the minimum period of disqualification.

[11]     The appeal is accordingly dismissed.

“A D MacKenzie J”