F v Police HC Auckland CRI 2008-404-249

[2008] NZHC 1597

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2008-404-249

BETWEEN  F

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         13 October 2008

Counsel:         V Reid for Appellant

R McCoubrey for Respondent

Judgment:      13 October 2008

(ORAL) JUDGMENT OF HEATH J

Solicitors:

Crown Solicitor, Auckland
Counsel:

V Reid, Auckland

F V NEW ZEALAND POLICE HC AK CRI 2008-404-249 13 October 2008

Introduction

[1]      Mr F   pleaded guilty to one charge of refusing to permit a specimen of blood to be taken and one of careless driving.  The offending arose out of an incident which occurred in the early hours of Saturday 26 April 2008.

[2]      Following the entry of guilty pleas and convictions, Mr F   applied to the District Court at Manukau for an order under s 94 of the Land Transport Act 1998 (the Act).  That section enables the Court to impose a community-based sentence in lieu of disqualification from holding or obtaining a driver licence, in specified circumstances.

[3]      In  a reserved judgment, Judge Rota dismissed the s 94  application.    For reasons into which it is unnecessary to go, Mr F   was sentenced by Judge Andrée Wiltens.  Judge Andrée Wiltens imposed a sentence of 150 hours community work on each charge and disqualified Mr F   from holding or obtaining a driver licence for a period of two years from 15 August 2008.

[4]      Mr  F    appeals  against  both  Judge  Rota’s  refusal  to  grant  the  s 94 application and the sentence imposed by Judge Andrée Wiltens.  I am told that the disqualification order has been suspended, pending determination of the appeal.

Facts

[5]      At about 12.40am on Saturday 26 April 2008, Mr F   was driving a Toyota motor vehicle on Sutton Crescent, Papatoetoe.  The road is sealed and flat.  It was dry at the time.  The area was illuminated by street lights.

[6]      At some point Mr F   looked over to his right at a group of bystanders. He became distracted.  His vehicle mounted the kerb on the western side of the road, turning partially around.   The rear of the vehicle crashed into a block wall at the front of a residential property.

[7]      Police  officers  arrived  soon  afterwards.    Mr  F    exhibited  signs  of alcohol intake.  He was transported to the police station at Otahuhu for breath testing to be undertaken.   Although Mr F   was advised of the requirement that he permit a blood sample to be taken  for the purpose of analysis, he refused  that request.  Hence the charge of failing to provide a blood specimen.

[8]      Mr F   has previous convictions for blood alcohol related offences and driving while disqualified.   However, that type of offending ceased in September

1994, when he was convicted of driving while disqualified.   Since that time there have been no relevant convictions entered against Mr F  .

Appeal against dismissal of s 94 application

[9]      I  deal  first  with  the  appeal  against  Judge  Rota’s  dismissal  of  the  s 94 application.

[10]     In an affidavit in support of that application, Mr F   deposed as to the circumstances in which the application was brought.  He was not cross-examined on that affidavit in the District Court.  Accordingly, his deposition must be taken at face value.

[11]     Mr F   described how he had been assisting friends with the removal of some furniture on the night of the offences.  They decided to drink together after the move had been completed.  At about 11.30pm, he received a telephone call from his partner advising that his daughter had not returned home.   His partner had been unable to locate his daughter.  This was out of character.  Mr F   assumed the worst.

[12]     Mr F   got into his vehicle (I am prepared to assume instinctively) and went looking for his daughter.  He was looking for her at the time he crashed into the block wall.   He was travelling at a low speed when the collision occurred.   He expresses sorrow for not having co-operated with the Police at the time of  the incident.

[13]     Mr F   is presently 48 years old.  He is a self-employed welder who has operated a business as a sole trader for about three years.   In effect, however, his business is totally reliant on another company, as he is contracted to do all of his work for it.  That company has made it clear that his contract will be terminated if Mr  Fuimai  is  disqualified  from  driving.     Driving  is  essential  to  that  work. Mr F  ’s financial position is such that he would have no option but to go on a benefit if he were to lose his job and business.

[14]     Mr F   is the major income earner for his family.  His partner is partially disabled and unable to drive.   His mother and aunt live with them.   Mr F  ’s mother is aged 75 years and his aunt, 94 years.  He and his partner care for them.

[15]     The family driving is undertaken solely by Mr F  , as he is the only person with a driver licence.  For the varying reasons other members of his family are unable to walk any distance and are reliant upon him for things such as shopping, transportation to church services and any medical appointments.

[16]     The events relating to Mr F  ’s search for his daughter are confirmed in an affidavit sworn by his partner.  Her evidence was not challenged in the District Court.

[17]     Relevantly, s 94 provides:

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.

….

[18]     Section 94 of the Act provides an unusual jurisdiction, in the sense that it permits substitution of a community-based sentence for disqualification even though a person might not otherwise qualify for a limited driver licence under s 105 of the Act and would not be able to establish exceptional circumstances relating to the offence for the purpose of avoiding or reducing any period of disqualification.

[19]     In most of the cases cited to me, the applicant has not been eligible to apply for a limited licence.   Yet, in some cases, the s 94 discretion has been invoked in favour of the convicted driver.  Two useful authorities dealing with s 94 issues are Peaufa v Ministry of Transport (High Court Christchurch, AP15/92, 13 February

1992, Tipping J) and Nicholle v Police (High Court Christchurch, AP376/93, 13

December 1993, Tipping J).

[20]     Mr McCoubrey submitted, correctly, that an appeal against refusal of a s 94 application is an appeal against the exercise of a discretion.   Accordingly, for an appeal to succeed, it is necessary for the Court to be persuaded that a Judge has taken into account irrelevant factors, failed to take into account relevant factors, made an error of law or was plainly wrong.

[21]     After setting out the circumstances leading to the application, Judge Rota discussed the way in which the s 94 discretion ought to be exercised.  There are three aspects of his decision which cause me concern and which, cumulatively, have led me to the view that His Honour did not exercise the discretion having regard simply to the statutory terms set out in s 94(1).

[22]     The first is that, in posing the question for determination, the Judge appeared to consider that they went to a balancing of the interests  of  the defendant  and dependents (on the one hand) and “whether any non-disqualification is likely by history and predicted effect of relief to promote rehabilitation and the public interest” (on  the  other).    Those  factors  do  not  encapsulate  all  of  the  aspects  set  out  in s 94(1)(b) and may state the issues to be determined too narrowly.

[23]     The second aspect relates to what the Judge said about Mr F   having driven in order to locate his missing daughter.  Judge Rota mentioned that there was no record that Mr F   had told the Police he was driving for that purpose.  The Judge also commented that Mr F   did not seek Police assistance in finding her. With respect, that seems to call in issue Mr F  ’s explanation.  That explanation was not challenged under cross-examination and, indeed, was corroborated by unchallenged evidence from his partner.

[24]     The third aspect relates to Mr F  ’s prior convictions.   The Judge said that  they were suggestion  of  “a  pattern  of  similar  offending”  which  “continues despite repeated imposition of difficult sanctions”.  Judge Rota said that “previous disqualification periods have been ineffective to break or address that pattern”.  With respect, I disagree.

[25]     It is difficult to describe what was undoubtedly a pattern of offending up to September 1994 as a continuing pattern until his conviction in 2008.  The Judge, in my view, placed far too much emphasis on the earlier convictions.  In light of the explanation, the Judge’s reliance on those previous convictions appears plainly wrong.

[26]     Given the cumulative effect of those three aspects of the Judge’s reasoning, I have formed the view that determination of the application miscarried and it is necessary to reconsider it fresh on appeal.

[27]     I approach the relevant s 94(1) criteria in turn.

[28]     First, I have already described the circumstances of the offence and of the offender.

[29]     The personal circumstances of Mr F   are such that he will lose his ability to earn a living for himself and his family if disqualification were ordered.

[30]     In relation to the offending itself, I infer that he made an instinctive (but erroneous) decision to drive when he learnt his daughter was missing.  Indeed, Mr F   having become distracted by looking at a group of bystanders, can be readily explained by his attempts to see whether his daughter was among them.

[31]     The second point relates to the effectiveness or otherwise of a prior order of disqualification.   While, certainly, before 1994, there were real concerns as to the effectiveness of such orders placed on Mr F  , that concern has not re-appeared since 1994.  In my view, that factor weighs in favour of Mr F   as it seems that the sanctions imposed have operated satisfactorily since that time.

[32]     The third point relates to the likely effect on Mr F   of a further order of disqualification.  Those factors are wrapped up with the circumstances of Mr F   to which I have already referred.

[33]     The final  issue relates  to  the  interests  of  the  public.    If  there  had  been elements of dangerous driving or excessive speed in the way in which Mr F 

controlled the vehicle, it may have been necessary to impose a disqualification order to mark the offending appropriately.  However, this is a case involving careless use of a motor vehicle, at the lower end of the scale, and I see no relevant public interest in denying relief under s 94 if, otherwise, circumstances weigh in favour of it.

[34]     Another factor that I bear in mind relates to Mr F  ’s ability to seek a limited licence.  The grounds on which a limited licence could be sought are set out in s 105(2) of the Act.   It appears that Mr F   would have a strong, indeed compelling case, for such an order, as s 105(2)(a)(i) refers to extreme hardship on the applicant whether in relation to employment or otherwise, while s 105(2)(a)(ii) refers to undue hardship to other people due to employment or otherwise.   Further, the nature of the driving would suggest that an order under s 105 would not be contrary to the interests of public safety: s 105(2)(b).

[35]     Assuming, as is likely, that Mr F   would receive a limited licence then the only term for which he is likely to be disqualified would be for 28 days from the date of the order: see s 104(1) of the Act.   It is clear from the evidence that Mr F   will lose his contract even if disqualified for that period.  That gives added weight to the question whether it is appropriate to disqualify.

[36]     I conclude, under s 94(1)(b), that it would be inappropriate to order that Mr F   be disqualified from holding or obtaining a driver licence and I also conclude that it would be appropriate to sentence Mr F   to a community-based sentence in order to mark the offending adequately.   For those reasons, the s 94 appeal succeeds.

Sentence appeal

[37]     Judge Andrée Wiltens imposed 150 hours community work on each charge. There are two aspects of that particular part of the sentence which require consideration.

[38]     It is agreed that community work was not a sentence that could be imposed on the charge of careless driving.  Accordingly, the sentence will need to be quashed on that particular charge.

[39]     The sentence of 150 hours community work on the charge of refusing to permit a blood specimen to be taken will be manifestly inadequate if the disqualification period were removed.  I propose to adjust the community work order upwards to take account of that.   In doing so, however, I do not regard the disqualification period of two years imposed by Judge Andrée Wiltens as an appropriate benchmark.  Given the mitigating factors which are relevant to the s 94 application, a lower disqualification period than that would have been appropriate.

[40]    For the reasons I have given, the appeal is allowed with the following consequences.

a)        The application under s 94 of the Act is granted.

b)The sentence appeal is allowed.  All sentences are quashed and in lieu thereof the following sentences imposed:

i)On the charge of refusing to permit a blood sample to be taken, Mr F   is sentenced to 300 hours community work.

ii)On the charge of careless driving, Mr F   is convicted and discharged.

[41]     I thank counsel for the quality of their submissions and the argument today.

P R Heath J