H v Police HC Gisborne CRI 2008-416-17

[2008] NZHC 2020

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI 2008-416-0017

H

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         15 December 2008

Appearances: L Hemi for the appellant

R Collins for the respondent

Judgment:      15 December 2008

(ORAL) JUDGMENT OF STEVENS J

Solicitors/Counsel:

Crown Solicitor, PO Box 609, Napier 4140

Rishworth Wall & Mathieson, PO Box 55, Gisborne 4040

H V NZ POLICE HC GIS CRI 2008-416-0017  15 December 2008

Introduction

[1]      The appellant has appealed against the failure or refusal of the District Court to impose an order pursuant to s 94 of the Land Transport Act 1998 (the Act) sentencing him to a community-based sentence in lieu of disqualification of his driver’s licence.

[2]      The respondent accepts that the circumstances of this case potentially fall within s 94 of the Act.  Further, the Crown accepts that the District Court Judge, in determining that the section did not apply, was in error.  Given that the provisions of s 94 of the Act apply, the Court had the power to exercise its discretion based on the factors set out in s 94(1)(b) of the Act.

[3]      It will therefore be necessary for this Court on appeal to apply the provisions of s 94 of the Act to the facts of the case and to consider exercising the discretion. For the reasons set out below, it is appropriate to allow the appeal and to exercise the statutory discretion in favour of imposing a community-based sentence.

Decision of the District Court Judge

[4]      The appellant, H  , was convicted having pleaded guilty to a charge of driving with excess breath alcohol (third or subsequent).   The appellant had three previous convictions for driving with excess breath alcohol in 1984, 1987 and 1989.

[5]      The circumstances in which he was apprehended are not in dispute.   The appellant had been attending a family gathering at an address in Gisborne.   As a result of an incident, rather than staying at the address as he had planned to do, the appellant decided unwisely to leave the address and drive to his home on the other side of town.  A short distance before reaching his home he was stopped by Police. Breath  testing  procedures  showed  that  he  had  a  reading  of  500  micrograms  of alcohol per litre of breath.   His explanation to the Police was that he was driving home following an argument with family members.

[6]      The  appellant  is  48  years  old  and  a  driver  by  occupation.    He  was  a beneficiary  for  a  considerable  period.     Recently,  however,  he  has  secured employment as a truck driver.  Apparently, his employer considers that he is doing well  and  wishes  to  retain  his  services  during  the  present  difficult  economic conditions.

[7]      The difficulty for the appellant is that, given this is the third or subsequent conviction, a minimum period of disqualification would be a period in excess of one year.   Accordingly, the Court would have the choice when setting a penalty of imposing a disqualification of at least one year and one day.

Sentencing options

[8]      Section 94 of the Act 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]

[9]      It is clear from s 94(1)(c) that the legislature envisaged that there may be circumstances in which, rather than imposing a disqualification, the Court might consider it appropriate to sentence the offender to a community-based sentence.

[10]     Under Part 2 of the Sentencing Act 2002 the options available in terms of a community-based sentence include community work, supervision, intensive supervision or community detention.

[11]     When determining whether to exercise the discretion in s 94(1) of the Act, the Court must have regard to the various factors set out in s 94(1)(b)(i) to (iv).

Relevant authorities

[12]     There are some High Court authorities that have considered the approach to be taken in such cases.  Mr Hemi appearing for the appellant helpfully referred to the decision of Halford v Police HC CHCH AP259/98 17 December 1998, Panckhurst J. There the appellant was found to have a reading of 913 micrograms of alcohol per litre  of  breath.    He  had  two  previous  convictions  within  five  years.    He  was employed as a sign installer and a driver’s licence was a prerequisite to his job. Panckhurst J referred to the earlier decision of Mallon v Police HC INV AP76/95

24 April 1996, Tipping J and concluded that the circumstances of the case were such that it was essential that the appellant retain his employment.  He stated “in short, it is in the public interest that he not be, in all probability, reduced to the status of a beneficiary”.

[13]     With respect to the Mallon case, the Court noted that while the employer was not willing to state categorically that the applicant would lose his job if disqualified, the Court found that there was a real risk that this would be the case.  Tipping J then carefully considered the applicable statutory factors.   With reference to the public interest, Tipping J stated at p 3 as follows:

Finally there is the question of the interests of the public and I am simply going through the list of criteria set out in the section. This has been held to involve a balancing exercise between the desirability of keeping this sort of offender off the road as against the undesirability of people's livelihoods being in jeopardy and them having to go on to benefits and the like. The

ultimate question is whether the Court, having regard to the listed circumstances, considers that it would be inappropriate to disqualify the offender. Secondly the Court must consider that it would be appropriate to sentence the offender to a community based sentence.

[14]     Later in the judgment at p 4, Tipping J added:

I wish to make it clear that applications under this section should not be regarded as routine. In all cases they must involve a careful balancing of the public interest and at the very least there would seem to me to be the need for a real risk that the person concerned will lose their job as the result of having no licence. I put it that way because that almost invariably is the problem which people under this section are seeking to avoid.

(emphasis added)

Application of the section

[15]     The circumstances of the case and the appellant are as  I have described above.  Fortunately, there was no accident, no injury and no bad driving involved in the offending.  Probably by good luck rather than good management, the appellant came close to the destination of his home without incident.

[16]     So far as the appellant is concerned, he has recently come into employment, is doing well and the employer requires his continued employment as a truck driver. I am informed by counsel that there is a genuine shortage of truck drivers in the Gisborne area.  Further, if the appellant were to be disqualified and lose his job then in all likelihood he would again become a beneficiary, having recently ceased to be such after gaining employment some six months ago.

[17]     So far as the effectiveness or otherwise of previous orders of disqualification are concerned, it is sufficient to note that although there are three previous convictions, all were more than 20 years ago.  The appellant has kept out of trouble during this period and seems temporarily (and recently) to have made a bad error of judgment.

[18]     So  far  as  the  likely  effect  on  the  appellant  of   a  further  order  of disqualification, I have already mentioned the inevitable consequences.

[19]     So far as the public interest is concerned, I take into account the need for truck drivers in this area and the fact that not only would the personal interests of the appellant be effected, but also the interests of the employer and the community which the business serves.  The employer has provided helpful material in support of the Court imposing a community-based sentence.

Result

[20]     Applying  those  factors,  I  am  satisfied  by  a  narrow  margin  that  it  is appropriate in all the circumstances of this case to impose a community-based sentence.  The natural preference would have been to have kept the appellant off the road  for  the  mandatory  disqualification  period  of  not  less  than  one  year.    But applying the balancing exercise to the particular circumstances of this case, and noting that applications for a community-based sentence are not to be treated as routine, the preferable course here is not to put the appellant’s recently achieved employment status at risk.

[21]     The type of sentence which I consider appropriate is one of community work. Section 55 of the Sentencing Act indicates that a sentence of community work must be not less than 40 nor more than 400 hours in number as the Court thinks fit.

[22]    This is not a case where one is simply converting a possible period of imprisonment for the offender to community work hour.   Rather, it is a matter of endeavouring to determine what is an appropriate sentence of community work in place of a sentence of disqualification of one year and one day.

[23]     In  terms  of  length  of  the  sentence  of  community  work,  I  accept  the submission from Mr Collins that there needs to be some sting in the sentence which is imposed.   In my judgment, a sentence of 200 hours community work would be appropriate.

[24]     In all the circumstances, I impose the following sentence:

a)        The fine of $450 plus Court costs of $130 imposed in the District

Court is confirmed.

b)        The disqualification from driving for six months from 7 November

2008 is quashed.

c)       In its place I direct that a community-based sentence of community work will apply.  The appellant must serve 200 hours of community work.

[25]     Therefore, the appeal is allowed and in its place I substitute the orders as outlined.

[26]     No order for costs was sought and no order is made.

Stevens J