Fyfe v Police

[2022] NZHC 3065

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2022-409-148

[2022] NZHC 3065

BETWEEN

ALEXANDER PETER FYFE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	22 November 2022
Appearances:	P C McDonnell for Applicant L Fiennes for Respondent
Judgment:	23 November 2022

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 23 November 2022 at 10.30 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

FYFE v NEW ZEALAND POLICE [2022] NZHC 3065 [23 November 2022]

Introduction

[1]    Alexander Fyfe pleaded guilty to a charge of driving with excess breath alcohol after testing showed he had 785 micrograms of alcohol per litre of breath.1 This was his third conviction for driving with excess breath or blood alcohol. His previous convictions were for driving with excess breath or blood alcohol on 16 February 2007 and on 2 May 2008.

[2]    On 8 September 2022, Judge Couch sentenced Mr Fyfe to 100 hours’ community work and disqualified him from holding or obtaining a driver licence for one year and one month from 5 August 2022.2 Mr Fyfe appeals his sentence.

District Court decision

[3]    The District Court decision was brief. The Judge declined Mr Fyfe’s application to substitute a community-based for the mandatory disqualification.3 Counsel relied on Mr Fyfe’s work as a joiner and as a volunteer Tai Chi instructor to support his application to avoid disqualification from driving. The Judge found that these were specific needs that could be addressed by a limited licence. However, the Judge did backdate the disqualification by a month so Mr Fyfe could make an application for a limited licence immediately.

[4]    The Judge sentenced Mr Fyfe to 100 hours’ community work and a disqualification from driving for one year and one month starting on 5 August 2022.

Principles on appeal

[5]    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

1      Land Transport Act 1998, s 56(1) and (4): maximum penalty two years’ imprisonment or a $6,000 fine, and a mandatory disqualification from holding or obtaining a driver licence for more than one year.

2      Police v Fyfe [2022] NZDC 17734.

3      Under s 94 of the Land Transport Act.

be imposed.4 As the Court of Appeal identified 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”.5 It is appropriate for this Court to intervene and substitute its own views only if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.6

[6]    An appeal against a s 94 application under the Land Transport Act 1998 is an appeal against a statutory discretion. The Court may therefore interfere only if the appellant can demonstrate that the Judge in Court below erred in principle in exercising his or her discretion by failing to take into account a material consideration, taking into account an irrelevant consideration or by being plainly wrong.7

Submissions

Appellant’s submissions

[7]    Mr McDonnell, for the appellant, submitted the Judge should have imposed a community-based sentence instead of a mandatory disqualification period under s 94 of the Land Transport Act. He also submitted the sentence of 100 hours’ community work was manifestly excessive when also considering the lengthy disqualification.

[8]    Mr McDonnell contended the Judge erred because he did not consider the three material preconditions in exercising his discretion and did not allow counsel to speak to his submissions on the s 94 application. He submitted that substitution of a community-based sentence is not limited to where there is a need to break a “wheel of offending”.8 He also submitted that the Judge failed to take into account Mr Fyfe’s rehabilitative efforts in self-referring himself to treatment and his clean record of driving since 2008. He submitted Mr Fyfe’s speeding (going 61 km/h in a 50 km/h zone) should not be seen as a substantial aggravating factor. Mr McDonnell submitted the Judge failed to take into account the financial implications of Mr Fyfe being

4      Criminal Procedure Act 2011, s 250(2) and (3).

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

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

7      Takamore v Police [2018] NZHC 3264 at [11] citing Keates v Police HC Auckland CRI-2010- 404-269, 21 September 2010 at [6]–[7].

8      Meava v Police HC Auckland CRI-2010-404-402, 11 March 2011 at [30]–[34].

disqualified from driving, as it would be difficult for him to continue his work because he needs to transport his own tools, and he relies on the money from his work to live. He also submitted the community would suffer if Mr Fyfe was disqualified because he would not be able to offer his Tai Chi classes, which he offers on a voluntary basis, and this would not be accommodated by a limited licence.

[9]    Mr McDonnell submitted that if Mr Fyfe had a higher evidential breath test of 800 micrograms of alcohol per litre of blood or higher, or if he had reoffended within five years, that he would have been captured by an alcohol interlock sentence. This would have allowed him to drive without fear of losing his employment or suffering any other financial hardship. He would be able to provide voluntary service outside of his daily working hours, which is not provided for on a limited licence.

[10]   If the s 94 application fails, Mr McDonnell submitted, in the alternative, that supervision would have been an appropriate sentence in lieu of community work, or at least, that the sentence of community work be reduced perhaps with some element of supervision imposed. This was Mr Fyfe’s third offence, there were no significant aggravating factors and he had a clean record since 2008.

Respondent’s submissions

[11]   Ms Fiennes, for the respondent, submitted the Judge’s decision was not incorrect. She said the Judge addressed most of the factors of s 94, albeit not explicitly, in considering Mr Fyfe’s very high alcohol reading, the fact that a disqualification would limit his work and volunteering, and the need to protect the public. Ms Fiennes also accepted the Judge did not refer to all the material before him about his financial position, steps taken towards rehabilitation nor the effectiveness of previous disqualification orders. Despite this, she submitted the decision to decline the application was appropriate having regard to the considerations in s 94.

[12]   For the circumstances of the case and the offender, Ms Fiennes submitted the Judge considered the negative impacts on Mr Fyfe’s employment could be mitigated by a limited licence. She also submitted there is no evidence that Mr Fyfe’s rehabilitative needs could not be met if the application was declined and he was granted a limited licence.

[13]   Regarding the public interest element of the test under s 94, she accepted that there is a public interest in Mr Fyfe retaining his licence, but this must be weighed against the public interest in being protected from Mr Fyfe’s driving, particularly because Mr Fyfe had such a high breath alcohol reading at an early stage in the evening, suggesting that he had been drinking heavily at lunch or during the day.

[14]   Ms Fiennes submitted that while she was not present at the hearing, she assumed the Police made submissions in open court and there must have been an opportunity for Mr Fyfe’s counsel to make oral submissions on points raised.

[15]   For Mr Fyfe’s sentence, Ms Fiennes submitted 100 hours’ community work was an available sentence for the Judge to impose. She cited the case of Foketi v Police where Mr Foketi was sentenced to 100 hours’ community work and disqualified for one year and one day and indefinitely for a third conviction of driving with excess blood or breath alcohol.9 Mr Fyfe’s convictions were more historic than Mr Foketi’s, but Mr Fyfe’s alcohol reading was also higher. Ms Fiennes also submitted that  as  Mr Fyfe had been engaging with rehabilitative services and had the support of his sponsor, it was open to the Judge to conclude a sentence of supervision in addition to community work was not necessary.

Analysis

[16]   Section 94 gives the Court discretion to substitute a mandatory disqualification period for a community-based sentence where the offender has previously been disqualified from driving, if the Court considers it would be inappropriate to disqualify the offender from driving and it would be appropriate to sentence the offender to a community-based sentence.

[17]   The considerations for determining whether it would be inappropriate to disqualify a driver are set out in s 94(1)(b) as being:

(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

9      Foketi v Police HC Auckland CRI-2009-404-169, 3 August 2009.

(iii)the likely effect on the offender of a further order of disqualification; and

(iv)the interests of the public [.]

[18]   I accept the Judge did not explicitly consider the requirements under s 94 to determine whether a community-based sentence should be substituted. While I have no doubt these considerations underpinned the Judge’s decision I have decided to consider the matter afresh to determine whether the Judge’s conclusion was correct.

[19]   Section 94 is usually used to get offenders off a “wheel of offending” where they are repeatedly receiving further sentences of disqualification because they are caught driving while disqualified.10 However, its application is not limited to those circumstances. As Churchman J said in Teddy v R:11

While it is not necessary to establish hopeless recidivism in order to qualify for consideration, a candidate for relief from the otherwise mandatory disqualification must, nonetheless, demonstrate that such is appropriate, for example, by establishing that further disqualification would create special hardship or otherwise be contrary to the public interest.

[20]   As Mr Fyfe was disqualified from driving in 2007 and 2008 for driving with excess breath or blood alcohol, he is eligible, under s 94(1)(a), for a community-based sentence in lieu of disqualification.

[21]   Under s 94(1)(b), the first consideration is the circumstances of the case and of the offender. As noted by Davison J in Takamore v Police, a s 94 application is more likely to be granted where the driving was not of a kind that endangered other road users.12 In this case, Mr Fyfe was over three times the legal limit for alcohol. He was also speeding by going 61 km/h in a 50 km/h zone. He was stopped by the Police because he was speeding. In light of these factors I consider Mr Fyfe’s offending did endanger other road users. However, the degree of risk he posed to the public is moderated by the fact he is not in a cycle of offending, he has not committed a driving offence nor had any demerit points since 2008. Furthermore, he has made efforts to

10     Tautau v Ministry of Transport [1991] 2 NZLR 204 (HC) at 211; and Stacey v Police [2018] NZHC 3280 at [24].

11     Teddy v R [2019] NZHC 219 at [12] (footnote omitted).

12     Takamore v Police, above n 7, at [19].

rehabilitate himself by attending Alcoholics Anonymous meetings to lower his risk to the public.

[22]   Mr Fyfe said he needs to be able to drive in order to work. He currently works as a joiner restoring historic buildings. This work requires him to transport tools to work. Prior to the District Court suspending his loss of licence he was getting help from a friend to take him to and from work, but this caused inconvenience to both of them. Mr Fyfe also teaches Tai Chi at a community centre every week at a set time. In his affidavit, he explained that he is not able to make it to the community centre on time after work without driving because there are no buses that could get him there on time. He also said that he has been helping a friend to do up her first home and helping another elderly friend around his house. He said he would not be able to do this over a stand-down period or with a limited licence.

[23]   Regarding the effectiveness of a previous order of disqualification, Mr Fyfe complied with previous periods of disqualification. The order was therefore effective in preventing him from driving. This consideration is usually used to assess the offender’s attitude towards an order, and if they treated the order in a cavalier fashion, that may indicate another order would be fruitless and better served by a community-based sentence.13 That is not the case here. On the other hand, compliance with an order should not be seen as a reason to deny a s 94 application. In my view, this factor is neutral in respect of Mr Fyfe’s application.

[24]   Section 94(1)(b)(iii) refers to the likely effect on the offender of a further order of disqualification. The effects contended by Mr Fyfe relate to his work and volunteering, which were discussed above.

[25]   The final consideration is the interests of the public. This involves weighing a variety of factors, but in particular, the desirability of keeping potentially dangerous offenders off the road against the desirability of keeping members of the community in employment.

13     Wadsworth v Police [2014] NZHC 3302 at [19].

[26]   In this case, weighing all of these considerations, there are no special circumstances that indicate the mandatory disqualification is an inappropriate sentence for Mr Fyfe. He is not likely to lose his employment because he is eligible for a limited licence under s 105 of the Land Transport Act and the police do not oppose his application. As was noted by Andrews J in an analogous case of a repeat offender on their third offence with historic offending and no particular aggravating factors of the offending, this is the precise type of case that the limited licence provisions are meant to cover.14 Furthermore, as the District Court Judge backdated the start of the sentence, there will be no standdown period before he is able to apply.15

[27]   Mr Fyfe may not be able to get a limited licence to accommodate for his volunteering –– that will be up to the District Court Judge hearing his application. Even if he is unable to get a limited licence for this purpose, his inability to attend Tai Chi lessons on time do not, in my view, amount to special circumstances to justify the substitution of a community-based sentence. There is inconvenience inherent in being disqualified from driving –– it is part of the punitive aspect of the sentence. This was intended by Parliament in making it a mandatory sentence for offenders convicted of a third or subsequent excess breath alcohol offence.

[28]   I am satisfied it would not be inappropriate to order that Mr Fyfe be disqualified from holding or obtaining a driver licence and the Judge was right to decline his application under s 94.

[29]   Mr McDonnell contended that if a community-based sentence was not going to be substituted, then the sentence of 100 hours’ community work was manifestly excessive when combined with the lengthy period of disqualification. Mr McDonnell cited the case Beeston v Police where the offender’s sentence  was  reduced  from 120 hours’ community work, nine months’ supervision and a disqualification of one year and one day,  to 80 hours’ community work and nine months’ supervision.16    Mr McDonnell contended that supervision would be an appropriate sentence in this case if the disqualification period was retained.

14     Yorston v Police HC Auckland CRI-2010-404-164, 14 September 2010 at [42].

15     Indeed I was advised his application is scheduled to be heard on 24 November 2022.

16     Beeston v Police [2012] NZHC 1064.

[30]   I do not consider the Beetson case supports Mr McDonnell’s submission.   Ms Beetson had significant personal mitigating circumstances, she was not as far over the alcohol limit as Mr Fyfe was and she was not speeding. In any event, she was sentenced to both community work and supervision.

[31]   In my view, there are a range of sentencing options available for someone who is being sentenced for driving with excess breath or blood alcohol on a third or subsequent occasion. What is at issue is whether the present sentence was excessive. I do not consider it is.

[32]   By way of example, in Taft v Police, Venning J upheld a sentence of 13 months’ disqualification, 150 hours’ community work and six months’ supervision in a case reasonably similar to this.17 The appellant was being sentenced for his third drink driving offence having had two earlier offences, the most recent of which was 18 years before  his  third  conviction.  His  evidential  breath  test  showed  a  reading  of   696 micrograms of alcohol. The Judge held that neither the sentence, or any components of it, could be described as manifestly excessive.18

[33]   There are also examples of sterner convictions. For example, in Smith v Police, the appellant, on a second drink drive conviction had his 12-month and one day’s disqualification reduced to 11 months, but there was no change to the sentence of 250 hours’ community work.19 In Leathers v Police, an appeal on a fourth drink drive conviction after a gap of over 15 years was dismissed and a sentence of one year’s disqualification and 300 hours’ community work upheld.20 In Burley v Police, a sentence on a third conviction, when the appellant was only marginally over the limit and there was a significant gap between that offence and his last conviction, the resulting sentence was nine months’ disqualification and 100 hours’ community work.21 In Brown v  R,  the  sentence  for  a  fourth  drink driving conviction  was  150 hours’ community work, 12 months’ supervision and 12 months and one day’s disqualification.22

17     Taft v Police CRI-2010-463-000009.

18 At [12].

19     Smith v Police [2014] NZHC 2101.

20     Leathers v Police HC Auckland CRI-2006-463-000085, 26 September 2006.

21     Burley v Police [2015] NZHC 149.

22     Brown v R [2020] NZHC 1494.

[34]   Having regard to these cases, Mr McDonnell has not shown that the Judge made an error in imposing a sentence of 100 hours’ community work in addition to disqualification, nor that it was manifestly excessive.

Conclusion

[35]The appeal is dismissed.

Solicitors:
Raymond Donnelly & Co., Christchurch

Copy To:
P C McDonnell, Barrister, Christchurch