Flavell v Police

[2021] NZHC 1710

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2021-409-000066

[2021] NZHC 1710

BETWEEN

JOSEPH FLAVELL

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	8 July 2021
Appearances:	J M Campbell on instructions for J D Lucas for Appellant S M H McManus for Respondent
Judgment:	9 July 2021

JUDGMENT OF GENDALL J

This judgment was delivered by me on 9 July 2021 at 12 p.m. pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

FLAVELL v NEW ZEALAND POLICE [2021] NZHC 1710 [9 July 2021]

Introduction

[1]    The appellant, Joseph Flavell, was convicted in the District Court on charges of driving whilst disqualified (third or subsequent) (2),1 failure to answer bail,2 and breach of release conditions.3 He was sentenced by Judge Couch on 7 May 2021 to four months’ home detention, 100 hours’ community work and disqualified from holding a driver licence and from having an interest in any motor vehicle for 12 months.4

[2]    Mr Flavell appeals solely against the disqualification from driving sentence. He does so on the ground the District Court Judge failed to give adequate consideration to the s 94 Land Transport Act 1998 application, namely that Mr Flavell required his licence to retain his employment.

Background

[3]    On 7 May 2020 Mr Flavell was disqualified from driving for a period of one year. On two occasions Mr Flavell was apprehended driving a vehicle in breach of that disqualification. On 19 November 2020 Mr Flavell was found driving a vehicle on a suburban road. When stopped by police he attempted to avoid liability by swapping seats with his passenger. On 16 February 2021 he was apprehended driving a vehicle again on a suburban road in the early hours of the morning.

[4]    On 14 January 2021 Mr Flavell was charged with breaching his prison release conditions when he repeatedly failed to report to his probation officer as directed.

[5]    On 12 February 2021 Mr Flavell failed to appear in the District Court and was charged with breaching the conditions of his bail.

1      Land Transport Act 1998, ss 32(1)(a) and 32(4).

2      Sentencing Act 2002, s 96(1).

3      Bail Act 2000, s 38(a).

4      Police v Flavell [2021] NZDC 9564.

District Court decision

[6]    Judge Couch noted the driving offences were Mr Flavell’s fifth and sixth convictions for like offending in four years. The Judge regarded the gravity of the driving offending as serious. His Honour noted Mr Flavell had purchased a vehicle shortly after his release from prison in November 2020 and began driving. The Judge considered this showed a contempt for court orders. A starting point of 12 months’ imprisonment was adopted for the two offences.

[7]    Regarding the breach of release conditions, the Judge saw this as serious and applied an uplift of four months’ imprisonment. An additional uplift of two months was applied in respect of the charge of failing to answer bail. This brought the overall starting point to 18 months’ imprisonment, which was reduced to 15 months’ having regard to the principle of totality.

[8]    The Judge then applied an uplift of 10 per cent to reflect the fact that the second driving offence occurred whilst Mr Flavell was on bail and all of the offending occurred whilst he was subject to a sentence. A further uplift of 10 per cent was applied for Mr Flavell’s relevant criminal history. A discount of 20 per cent was then applied to reflect Mr Flavell’s guilty pleas. These had been entered after he had initially pleaded not guilty. This resulted in an end sentence of 15 months’ imprisonment.

[9]    The Judge then considered home detention was the least restrictive sentence, having regard to Mr Flavell’s recent compliance with conditions of electronically monitored (EM) bail. Given that Mr Flavell had been remanded in custody for one month and spent two months’ on EM bail, his Honour reached a sentence of home detention for four months. In addition, Mr Flavell was sentenced to 100 hours’ community work.

[10]   The Judge declined to exercise his discretion under s 94 Land Transport Act to substitute Mr Flavell’s licence disqualification for a community-based sentence. However, his Honour sentenced Mr Flavell to the statutory minimum period of disqualification of 12 months, noting that it could have been closer to 18 months.

Principles on appeal

[11]   Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.5 As the Court of Appeal mentioned in Tutakangahau v R quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.6 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.7

Submissions

Appellant’s submissions

[12]   Mr Lucas and Ms Campbell, for Mr Flavell, submit that, in considering the s 94 Land Transport Act application, the District Court Judge failed to take into account that Mr Flavell required his licence for the purposes of maintaining his employment as a labourer. Mr Flavell is required to travel to different works sites across Christchurch. Without a licence, he is unable to complete that work.

[13]   Ms Campbell maintains that the purpose of s 94 is to provide an alternative option to the courts for those who are deemed to be on the “wheel of offending”. In her submission, Mr Flavell falls within that category as he has been charged with driving whilst disqualified on numerous occasions since 2017. Accordingly, it is submitted, that previous orders cannot be said to have been effective.

[14]   Ms Campbell notes that by sentencing Mr Flavell to an alternative sentence, he would be able to gain his restricted licence and therefore significantly reduce the risk of further driving offending.

5      Criminal Procedure Act 2011, ss 250(2) and 250(3).

6      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

7      Ripia v R [2011] NZCA 101 at [15].

[15]   Ms Campbell maintains it is  in  the  interests  of  the  general  public  that  Mr Flavell maintains his licence so he can be afforded the opportunity to gain his restricted licence and consequently gain employment. In her submission, by gaining employment Mr Flavell would be able to contribute more successfully and meaningfully to the community and this would provide him with motivation to remain out of the justice system. The pre-sentence report supports the submission that Mr Flavell wishes to drive legally.

Respondent’s submissions

[16]   Ms McManus, for the Crown, acknowledges this Court may find that the District Court Judge did not explicitly set out relevant considerations in his sentencing decision. However, in Ms McManus’s submission, it was open to the sentencing Judge to dismiss the application.

[17]   Ms McManus contends that the facts of the offending and Mr Flavell’s background weigh against allowing this appeal and granting his s 94 application. In particular, Mr Flavell has convictions for driving with excess blood alcohol, which were the cause of his initial disqualification. In her submission, Mr Flavell’s history demonstrates a general lack of regard for court imposed orders and sentences and includes convictions for breaching sentences such as supervision, community work and intensive supervision.

[18]   Ms McManus does accept, however, that the disqualification could impact Mr Flavell’s employment. However, given that he is currently on a learner’s licence, he would not be able to drive to the various work sites without supervision in any event.

[19]   While it is accepted there is a public interest in Mr Flavell finding and maintaining employment, it is submitted generally for the Crown that the interests of justice in this case favour the imposition of a disqualification period.

Analysis

[20]   The District Court Judge did not articulate in his decision that he had given consideration to the factors in s 94(1)(b) Land Transport Act. Rather, his Honour summed up his consideration of the application as follows:8

Given your attitude to sentences of disqualification in the past, I do not consider [the exercise of discretion under s 94] appropriate. You need to understand that driving a motor vehicle is not a universal human right. Rather, it is [a] right to be earned by compliance with the generally accepted rules of society. You have demonstrated graphically so far that you are not prepared to do that.

[21]Section 94(1) 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.

8      Police v Flavell, above n 4 at [25].

[22]   In my view, the District Court Judge here could have imposed a community- based sentence if satisfied it was inappropriate to impose a period of disqualification, considering the factors in 94(1)(b). This Court has said:9

… substitution under s 94 is available not only in cases where it is appropriate to break a cycle of recidivism but also where the interests of the offender and the public are otherwise better served by a community-based sentence, for example, to avoid loss of employment or other particular hardship.

[23]   Both counsel have today referred the Court to Keates v Police, where Lang J held it “is for the Judge who decides the application to weigh up the competing interests and to determine the manner in which the discretion should be exercised”.10

[24]   The touchstone is that the sentence reached must meet the purposes and principles of sentencing contained in ss 7 and 8 of the Sentencing Act 2002. Relevantly, the sentence must denounce Mr Flavell’s conduct, deter him and others from committing similar offences, and assist in Mr Flavell’s rehabilitation.

Is disqualification appropriate?

The circumstances of the case and the offender

[25]   Mr Flavell had been released from prison for approximately a week in November 2020 when he was caught driving whilst disqualified. He attempted to avoid apprehension by swapping seats with his passenger. The February 2021 driving offence occurred while Mr Flavell was subject to bail conditions stemming from the November 2020 offence, and the offending was a breach of his prison release conditions. The circumstances of the convictions were relatively routine. Nothing is before the Court to suggest Mr Flavell was driving dangerously or erratically at the time.

[26]   In an affidavit of 14 May 2021 Mr Flavell deposes that he was driving to work when he was arrested on 16 February 2021. On 10 May 2021 he had received his learner licence back. He seeks this Court’s indulgence to have the disqualification

9      Nicholson v Police [2021] NZHC 960 at [18], citing Yu v Police HC Auckland CRI-2006-404- 273, 10 November 2006 at [7]-[8]; Wadsworth v Police [2014] NZHC 3302 at [18]; Skelton v Police [2015] NZHC 1735; and Burgess v Police [2021] NZHC 362.

10 Keates v Police HC Auckland CRI-2010-404-269, 21 September 2010 at [6].

period waived under s 94, which would allow him to obtain his restricted licence. In turn, Mr Flavell says this would allow him to continue to work as a labourer.

[27]   Mr Flavell’s initial disqualification stemmed from a charge of driving with excess blood alcohol in 2016. In 2018 he received his second and third periods of disqualification for driving with excess breath/blood alcohol.

[28]   Mr Flavell was a young man aged 24 when the latest offending occurred. Unfortunately, he has some history of non-compliance with release conditions and sentences. In 2015 Mr Flavell breached community work. In 2016 he breached release conditions, failed to answer bail and breached community work. In 2017 he breached release conditions, community work on two occasions, conditions of supervision, and failed to answer bail. Most recently, in 2019, Mr Flavell breached the conditions of intensive supervision.

[29]   Although Mr Flavell’s behaviour in recent years might be seen as somewhat irrational, he claims now that he wants to set a new work and driving pathway for himself, and overall, I consider this and the matters I have noted above are relatively neutral in a consideration of whether or not to grant Mr Flavell a s 94 substitution of sentence.

The effectiveness of previous periods of disqualification

[30]   As Ms McManus notes, Mr Flavell blatantly disregarded the disqualification order, despite being released from prison shortly beforehand. Substituting a sentence under s 94 may assist offenders to avoid the “wheel of offending”.11 Prior to this offending, Mr Flavell has four convictions for driving whilst disqualified arising in 2017, 2018, and 2019. I consider he is on the “wheel of offending”, particularly in light of the fact the two most recent convictions occurred within a period of three months and some serious change is now required. Previous periods of disqualification have clearly been ineffective.

11     Grimwood v Ministry of Transport HC Christchurch AP184/91, 16 August 1991 at 3.

[31]   In my view, this factor may weigh in favour of granting Mr Flavell’s application.

The likely effect on Mr Flavell of a further order of disqualification

[32]   It is common ground that a period of disqualification will likely impact upon Mr Flavell’s employment.

[33]   Ms McManus submits that, as Mr Flavell currently holds a learner driver licence, he would not be able to drive unsupervised in any event. This submission overlooks Mr Flavell’s key submission, however, namely that he is awaiting the outcome of this proceeding before sitting his restricted licence test. If successful, this would allow him to travel unsupervised to work. I acknowledge the final hurdle for Mr Flavell in that scenario must be successfully sitting the restricted driver licence test, which it seems he is determined to do now.

[34]   I note that the May 2021 pre-sentence report does record that “Mr Flavell commented that he currently has no motivation nor desire to gain employment”, but later it went on to record: “There is more to be explored in relation to Mr Flavell’s stance on employment and his desired lifestyle.” The earlier comment noted above is at odds with the comments made in Mr Flavell’s affidavit, namely that if he had his licence back he would be able to continue to work. I note the pre-sentence report also recorded that Mr Flavell remains in touch with his previous employer.

[35]   In my view, the impact on Mr Flavell’s ability to obtain employment is an important factor here that weighs in favour of granting the application.

The interests of the public

[36]   The current convictions of driving while disqualified to some extent can be distinguished from Mr Flavell’s previous convictions for driving with excess breath/blood alcohol. Mr Flavell appears to regret now to a significant degree his earlier actions and has confirmed his wish to make major changes in his life.

[37]   Generally, it must be accepted at first glance that imposing the mandatory disqualification period of 12 months,12 as the District Court Judge did however, does meet the purposes of denouncing Mr Flavell’s conduct here, deterring others from committing similar offending and promoting accountability and responsibility for his actions.

[38]   However, I accept the Judge in his decision did not articulate that he had considered the matters in s 94(1)(b) ,nor did he say that he had given due consideration to the impact of disqualification upon Mr Flavell’s employment.

[39]   In my view, the purposes of sentencing can also be properly achieved here by a sentence of community work. It is generally in the public interest too that Mr Flavell obtain employment. Obtaining employment will assist him in avoiding adverse financial consequences and may have the added benefit of assisting in his further developing pro-social attributes which it seems he wants to do.

[40]   In reaching that conclusion I have not overlooked the fact that Mr Flavell has some history of non-compliance with release conditions and sentences. Mr Flavell, however, is a relatively young man now at age 25. This is a factor in my judgment that means Mr Flavell ought to be afforded an opportunity to have an application under s 94 considered with care. If granted, this would give him the chance to obtain his restricted driver licence and maintain employment, which I consider is in the general public interest. However, I stress, if Mr Flavell breached the conditions of his driver licence again, the Court would view that conduct unfavourably.

[41]   Mr Flavell’s demerit point and licence suspension history shows he has held a learner licence since at least 2016, some five years ago. It is not clear why Mr Flavell has failed to obtain his restricted licence over that past five-year period. But, leaving this to one side, in my  view,  the likely  effects  of continued disqualification  on   Mr Flavell’s employment are likely to be significant. Employment possibilities for Mr Flavell will be so detrimentally affected without transport options, and previous periods of disqualification have been so ineffective, I am satisfied it is in the interests of justice that I exercise my discretion here under s 94.

12     Pursuant to s 65 of the Land Transport Act.

[42]   That said, and taking into account all the circumstances of this case, I consider by a fine margin that Mr Flavell’s appeal should be allowed and his disqualification from driving set aside.

Result

[43]   This appeal is allowed.  The  sentence  of  12  months  disqualification  of  Mr Flavell’s driver licence is quashed.

[44]   As a result, I am required to impose a community-based sentence in substitution under s 94(3)(a) of the Land Transport Act.

[45]   That disqualification sentence is replaced with a sentence of 50 hours’ community work. That is to be on top of the existing sentence of 100 hours’ community work and four months’ home detention Mr Flavell faces as outlined at para [1] above (which remains unchanged).

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

Gendall J

Solicitors:

Josh Lucas, Barrister, Christchurch

Raymond Donnelly & Co, Christchurch