Grant v Police

[2017] NZHC 953

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2017-470-13 [2017] NZHC 953

BETWEEN

DYLAN GRANT

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	11 May 2017
Appearances:	K Davies for the Appellant AZM Shore for the Respondnet
Judgment:	11 May 2017

ORAL JUDGMENT OF WOODHOUSE J

Solicitors:

Ms K Davies, Public Defence Service, Tauranga

Ms AZM Shore, Hollister-Jones Lellman, Office of the Crown Solicitor, Tauranga

GRANT v POLICE [2017] NZHC 953 [11 May 2017]

[1]      Mr Grant appeals against disqualification from holding or obtaining a driver licence for 2 years.   This was imposed by C J Harding in the District Court at Tauranga on 28 February this year.1     The disqualification was imposed for three driving offences.  At the same time Mr Grant was sentenced for four other offences which I will mention in a moment.

[2]      The three driving offences  are  as  follows,  although  not  in  chronological order.

[3]      There are two offences of driving when suspended from driving on a third or subsequent occasion.  These are offences against s 32(4) of the Land Transport Act

1998.  The two offences occurred on 27 December 2016 and 2 February 2017.  The second  offence  also  occurred  after  conviction  on  2  February 2017  for  the  first offence and therefore while Mr Grant was awaiting sentence for that offence.

[4]      The offences of driving when the licence was suspended occurred within a short period after the earliest and most serious of the driving offences.  This is an offence of driving under the influence of a drug which occurred on 15 November

2016.   A brief summary of the facts in relation to that offence is relevant and is conveniently taken from the helpful submissions of Ms Davies for Mr Grant:

[6]       At  about 11.02pm on Tuesday 15  November  2016 the  appellant drove a motor vehicle in Tauranga.  He was stopped by the police as a result of a driving complaint.  A Compulsory impairment test was done and was not completed to the satisfaction of the testing officer. The subsequent evidential blood test returned a positive result for the use of controlled drugs namely cannabis and methamphetamine.

[7]       At the time the appellant had been having some difficulty seeing out of his left eye however accepts that he had consumed drugs in the month preceding the offending.

[5]      Mr Grant had indicated to the Court on 23 January 2017 that he was likely to enter a guilty plea to that charge and the plea was confirmed, following blood test

results, on 2 February 2017.

1      Police v Grant [2017] NZDC 4118.

[6]      The two offences of driving while suspended or disqualified were the fifth and sixth. The previous suspension and disqualification orders were as follows:

(a)      In 2007 Mr Grant was convicted for driving when his licence was suspended and was disqualified for six months from holding a licence.

(b)In 2013 there was an order suspending his licence for the second time with disqualification for six months.

(c)      Six  months  later,  in  2013,  he  was  convicted  for  driving  while disqualified and the sentence included a further disqualification from holding a driver licence for six months.

(d)The  fourth  occasion  was  again  driving  while  the  licence  was suspended.  The offence occurred in December 2015 but the sentence was imposed in September 2016 – that is to say, not long before the current series of offences.   The criminal and traffic history records that special circumstances were found and no disqualification was imposed on that occasion.

[7]      The other offences on which Mr Grant was sentenced in February were the folloiwng: two offences of shoplifting in October 2016; breach of community work in November 2016; and possession of a methamphetamine pipe for use in November

2016.  Mr Grant has a number of previous convictions for use or possession for use of methamphetamine, and related offences.   Those previous convictions have relevance because of the offence now being considered of driving while under the influence of methamphetamine and cannabis.

The District Court sentence

[8]      The heart of Judge Harding’s decision, particularly in relation to the length of

the disqualification, was as follows:

[6]       The  probation  report  says  that  this  is  a  continuing  pattern  of offending which is repetitive rather than escalating, says that you minimise your  offending,  you  do  not  take  full  responsibility  and  you  have  needs

around substance abuse, attitude and entitlement.  It suggests that those are best addressed by community-based sentences such as community detention, supervision and community work but I do not agree.

[7]       The time has come, Mr Grant, for you to realise that if you continue to blatantly disregard Court orders forbidding you to drive and to continue helping yourself to property that is not yours and not doing the community work that you are asked to do that the Court is going to take a condign approach to this and today is that day I am afraid.

[8]       I am unable to accept the recommendations and think that nothing short of a sentence of imprisonment can be contemplated. You are convicted and sentenced as follows.

[9]      In addition to the disqualification for 2 years, Mr Grant was sentenced to 3 months  imprisonment  for  the  two  offences  of  driving  when  his  licence  was suspended.  This was cumulative on imprisonment for 1 month for driving under the influence of the drugs.  That was in turn cumulative on 1 month imprisonment for the two theft charges.  The total length of imprisonment was, therefore, 5 months.  I note that Mr Grant has just been released.

Grounds of appeal

[10]     The central ground of the appeal is that disqualification from holding a driver licence for 2 years is manifestly excessive.   There has been no appeal against the sentence of imprisonment.

[11]     The central aspects of Ms Davies’ submissions for Mr Grant are as follows. Cases  have  confirmed  that  public  safety  is  a  primary  purpose,  or  the  primary purpose, of disqualification from holding a driver licence.  Reference may be made to the decision of the Court of Appeal in Hitchens,2  and to decisions of the High Court in Ropiha,3  Leaupepe,4  and Duncan.5    To be weighed against the importance of public safety is the consideration that long periods of disqualification typically leave little hope for the offender.6   Ms Davies noted that in this case, apart from the current offence of driving under the influence of drugs, Mr Grant’s driving offences,

the current ones and earlier ones, have not involved significant public safety factors.

2      Hitchens v R CA380/03, 25 March 2004.

3      Ropiha v Police [2016] NZHC 839.

4      Leaupepe v Police [2015] NZHC 1766.

5      Duncan v Police HC Christchurch CRI-2003-409-000034, 17 July 2003.

6      Hitchens v R, above n 2, at [10].

Ms Davies noted that there was no bad driving involved in the two current offences of driving while suspended, but acknowledged there was with the other driving offence.

[12]     Ms Davies also cited other cases involving what may reasonably be described as significantly worse driving, or significantly more previous suspensions or disqualifications, and cases of multiple driving while disqualified offences occurring in short succession, where the period of disqualification was materially shorter than the period of disqualification imposed in this case.

[13]     Ms Davies further submitted that the prison sentence imposed on Mr Grant has had a salutary effect, and I can accept it will have had that effect

[14]     In addition to the helpful submissions of Ms Davies for Mr Grant, I have received helpful submissions from Ms Shore for the respondent and which were addressed concisely by Ms Shore orally.   The essence of the submissions for the respondent is that there was no error in the Judge’s exercise of the broad discretion he had and, as a central element of this, that the length of the disqualification was not manifestly excessive.

Evaluation

[15]     This is an appeal against exercise of a discretion.  It is a broad discretion.  As

McKenzie J said in Leaupepe:7

[8]       The principle objective of disqualification is public safety.  Many of the purposes and principles of sentencing in ss 7 and 8 of the Sentencing Act

2002 can have little application when assessing the length of disqualification and others must receive limited weight because of public safety concerns.

[9]       The extent of the discretion available to the sentencing Judge is, for these reasons, less fettered than that in respect of a conventional sentencing decision.  A comparison with other cases is therefore a less reliable guide than is the case for a conventional sentencing.

[16]     Other  principles  of  relevance,  which  can  conveniently  be  provided  with citations are the following:

7      Leaupepe v Police, above n 4.

(a)       In Hitchens v Police,8 as noted by McKenzie J in Leaupepe,9 there are two competing considerations:

(i)Long periods of disqualification typically leave little hope for offenders; and

(ii)It is incumbent on the Courts to keep dangerous drivers off the road for as long as reasonably possible.

(b)      In Ropiha Davidson J said:10

“Public  safety”  should  not  be  understood  purely  in  the context of dangerous driving.  The mandatory application of at least one year disqualification suggests  that Parliament intended the disqualification order to fulfil a public safety response of stopping people who are subject to suspension or disqualification from driving.

(c)       In Duncan Panckhurst J, addressing the length of a disqualification, said:11

... As a matter of policy disqualification orders should be kept as short as is possible in relation to achievement of the underlying end of road safety. …

[17]     The most relevant considerations in applying those broad principles to the facts of this case, and generally in assessing the appeal, are the following.   The minimum period of disqualification is 1 year.   There is no maximum period of disqualification.  The sentencing Judge does not have an unfettered discretion, but as the cases make clear it is a broad discretion.

[18]     It is of significance on this appeal that the total of 2 years disqualification was not imposed solely for the fifth and sixth occasions of driving while suspended or disqualified.    Had the disqualification been only for those offences, a disqualification of 2 years might have been manifestly excessive, but the length of

the disqualification could certainly have been well over 1 year.  This highlights the

8      Hitchens v Police, above n 2, at [10].

9      Leaupepe v Police, above n 4, at [10].

10     Ropiha v Police, above n 3, at [18].

11     Duncan v Police, above n 5, at [10]

significance of the fact that this is an appeal against a discretion.  The Court on this appeal is addressing a range of 12 months at the outer limit,12 and probably no more than about 6 months, in terms of an appropriate length of disqualification.

[19]     In any event, in this case there is also the driving under the influence of methamphetamine and cannabis, associated with the indications of use of methamphetamine and cannabis over a period of time.  These considerations bring public safety into clear focus.  In addition, as Davidson J said in Ropiha, safety is not measured solely by reference to the quality of the driving on particular occasions. Also, in Mr Grant’s case, in addition to the serious offence of driving under the influence of drugs, and the four previous disqualifications or suspensions, he has a large number of demerit points accumulated over an extended period for numerous offences of excessive speed.  The demerit point history, which I will not go into in detail, on my count records nine occasions in a period of less than 4 years, between January 2013 and December 2016, of demerit points imposed for exceeding the speed limit, ranging from exceeding a 50 kph limit to exceeding a 100 kph limit.

[20]     It  is  necessary  to  have  regard  to  what  in  a  broad  sense  may  be  called “prospects of rehabilitation” in considering the length of a disqualification, but I apprehend  that  when  the  Court  has  referred  in  the  other  cases  to  long  periods offering little hope, the Court has been concerned with periods of disqualification well in excess of 2 years.  For example, the disqualification in Hitchens, imposed in the lower Court, was 10 years.   On appeal the Court of Appeal reduced that to 7 years.

[21]     Further consideration on the facts of this case is the sequence of the offending from the driving while under the influence of drugs in November 2016, with subsequent  driving  offences  committed  following  charges  being  laid  for  the preceding offence or offences and with the last offence occurring while Mr Grant

was awaiting sentence.

12     That is, the range from the statutory minimum of 12 months to the 24 months imposed in this case.

[22]     The disqualification for the three offences might have been less than 2 years. Had it been, and if the Crown had got leave to appeal, this Court would have been unlikely to interfere unless the disqualification had been at or close to the minimum of 12 months.  The disqualification might have been around 18 months.  But these considerations in themselves indicate in my judgment that the disqualification in this case is not manifestly excessive.   When these considerations are coupled with the fact that the sentencing Judge has a reasonably broad discretion I am satisfied that there was no appealable error.

Result

[23]     The appeal is accordingly dismissed.

Woodhouse J