Hatakeyama v Police HC Auckland CRI-2010-404-000516
[2011] NZHC 503
•19 May 2011
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2010-404-000516
MOASINA HATAKEYAMA
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 18 April 2011
Counsel: V Letele for the Appellant
F Cuncannon for the Respondent
Judgment: 19 May 2011
JUDGMENT OF DUFFY J
This judgment was delivered by Justice Duffy on 19 May 2011 at 11.30 am, pursuant to
r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
Counsel: V Letele P O Box 76456 Manukau City Manukau 2241 for the Appellant
Solicitors: Meredith Connell P O Box 2213 (DX CP24063) Shortland Street
Auckland 1140 for the Respondent
HATAKEYAMA v POLICE HC AK CRI-2010-404-000516 19 May 2011
[1] The appellant, Ms Hatakeyama, was convicted of driving while disqualified. She was sentenced to community work and disqualified from driving for a further six months. She appeals the decision on the basis that the Judge erred in his application of s 94 of the Land Transport Act 1998.
Facts
[2] On 3 June 2007, Ms Hatakeyama was convicted of driving whilst disqualified and for having excess breath alcohol. One month later, on 3 July 2007, she again drove while disqualified. She was convicted on 27 August 2009 for that offence and disqualified from driving for another nine months. Then on 9 February 2010, she was found to be driving her motor vehicle on Te Irirangi Drive, Botany Downs, following a defended hearing in the Manukau District Court in September 2010. At that hearing the charge was found to have been proven and a conviction was entered. There was a sentencing hearing on 3 November 2010, at which Ms Hatakeyama applied under s 94 of the Land Transport Act for the Court to substitute a community-based sentence for what would otherwise be an inevitable disqualification. The Judge refused the application. He entered a conviction against Ms Hatakeyama and recorded that he would not impose a monetary penalty because of her limited financial means. He sentenced her to 70 hours’ community work and disqualified her from holding or obtaining a driver’s licence for of six months.
District Court judgment
[3] The District Court Judge set out the grounds of Ms Hatakeyama’s application at [5] of his decision. They were that she is a solo parent who is responsible for raising a 13 year old daughter. At the same time, she is studying for a diploma at the Manukau Institute of Technology, and she has obtained part-time work in Mount Eden. Due to poor public transport to and from her places of education and employment, it was going to be difficult for her to maintain her attendance at each place.
[4] The Judge noted, however, the police contention that Ms Hatakeyama must have alternative transport arrangements available to her. This was inferred from her
evidence that there had only been one incident of her driving while disqualified and the fact that as she had previously managed to attend her classes.
[5] The Judge said at [7]-[9] that he had to consider the following three matters:
(a) The circumstances of the case and the offender. Regarding this, he said that she had lived a generally law-abiding life but that she has now acquired four convictions since 2002 relating to traffic matters, with two flowing from an earlier traffic matter;
(b)The effectiveness of the previous order of disqualification. Here the Judge found that the previous order of disqualification was effective, because Ms Hatakeyama’s evidence was that she only drove on one occasion; and
(c) The interests of the public. This the Judge equated with ensuring that there was compliance with Court orders.
[6] In fact, s 94(1)(b) sets out four matters for consideration when a Court comes to consider an application for substitution of a community-based sentence. I return to this later in the judgment.
[7] The Judge concluded his reasoning with the comments that he was faced with a single incident of disqualified driving, that Court orders are not to be undermined, and that Ms Hatakeyama’s case was not sufficiently compelling to exercise discretion in her favour.
Legislation
[8] Section 94 provides as follows:
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]
(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.
[(3A) For the purposes of subsection (3)(a), the court may impose a sentence of supervision [[or intensive supervision]] as a community- based sentence if—
(a) that sentence is appropriate; and
(b) a suitable programme is available; and
(c) the offender attends a suitable programme.] [(4) This section does not apply if—
(a) section 63 or section 65 applies; or
(b) the offender is prohibited from applying for a limited licence under section 103(2)(a), (b), or (d).]
Submissions of the appellant
[9] Ms Hatakeyama argues that the Judge erred in failing to grant her application under s 94. She argues that he failed to take into account relevant matters and considered irrelevant matters.
[10] Ms Hatakeyama contends that the Judge took the wrong approach to s 94 in considering three factors, when the section stipulates four considerations; and, therefore, he did not properly consider the factors in s 94. In this regard, Ms Hatakeyama submits that the Judge failed to address s 94(1)(b)(iii), which requires him to consider the impact of a further period of disqualification on her, effectively thwarting the context-specific remedial purpose of s 94. Regarding the interests of the public, Ms Hatakeyama submits that there is a public interest in ensuring that persons in her circumstances are able to improve their life circumstances through education and employment, rather than remaining on government benefits. She contends that this public interest outweighs ensuring compliance with Court orders. Here she argues that the intent of Parliament in enacting s 94 was to ensure that the offenders were punished, while at the same time getting them off the “treadmill of further disqualifications”. She also argues that the Judge, in finding that her case was insufficiently compelling, effectively established that all solo parents who are working or searching for work will not satisfy s 94; which is contrary to Parliament’s intent.
Submissions of the respondent
[11] The police submit that as an appeal against the exercise of discretion, the onus is on Ms Hatakeyama to satisfy the Court hearing the appeal that there was an error in the exercise of that discretion. Thus it is not sufficient that another judge may have exercised the discretion differently.
[12] The police rely on the approaches set out in Keates v Police HC Auckland CRI-2010-404-269, 21 September 2010 at [5]-[8], followed in Massold v Police HC Auckland CRI 2010-404-346, 8 December 2010, Duffy J at [14]; and Maeva v Police HC Auckland CRI 2010-404-402, 8 February 2011, Keane J. The police submit that the following principles can be drawn from Keane J’s judgment in Maeva at [13]:
(a) Before imposing a community-based sentence, a judge must be satisfied that a further period of disqualification is inappropriate and a community-based sentence is appropriate.
(b)This determination requires consideration of the four factors listed in s 94(1)(b). The weight to be given to each factor depends on the circumstances of the case;
(c) If the judge decides both of these issues in favour of the applicant, the discretion may be exercised in favour of the applicant; and
(d)An appellate court may only disturb the exercise of this discretion in limited circumstances. It may interfere if the judge erred in principle, if the ultimate decision was plainly wrong, or where the judge failed to have regard to a material consideration or took irrelevant considerations into account.
[13] The police contend that the Judge took each of the matters in s 94(1)(b) into account. They argue that at [5] and [10], the Judge considered s 94(1)(b)(iii), even though he did not mention that particular consideration in his judgment. They also argue that Ms Hatakeyama has not identified any error of law, relevant matters that were not taken into account, or irrelevant matters that were taken into account; and the decision is not plainly unreasonable. They conclude that if Ms Hatakeyama finds that her personal circumstances necessitate her being able to drive on specific occasions, she should apply for a limited licence pursuant to s 105 of the Land Transport Act.
Appellate principles
[14] In Keates v Police, at [5]-[8], Lang J set out the approach to be taken on an appeal relating to s 94:
[5] Before a Judge can impose a community-based sentence, he or she must be satisfied both that a further period of disqualification is inappropriate and that a community-based sentence is appropriate. Those determinations depend upon the weight that the Judge gives to the four factors listed in s 94(1)(b). The weight to be given to each of those factors will vary according to the circumstances of the case. If the Judge decides both ultimate issues in favour of the applicant, the discretion may be exercised in favour of the applicant. If the Judge decides either of those issues against the applicant, there will be no jurisdiction to grant the application.
[6] The power to make an order under s 94 is therefore, the exercise of a statutory discretion. 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.
[7] An appellate court may only disturb the exercise of a judicial discretion in limited circumstances. It may interfere if the appellant can demonstrate either that the Judge in the Court below erred in principle in exercising his or her discretion, or that the ultimate decision was plainly wrong. The appellate court may also interfere where the Judge in the Court below has failed to have regard to a material consideration or has taken into account an irrelevant consideration: Harris v McIntosh [2001] 2 NZLR 721 at 724; May v May (1982) 1 NZFLR 165 at 170.
[8] I do not consider that the decision of the Supreme Court in Austin, Nicholls & Co Inc v Stichting Lodestar [2008] 1 NZLR 14 has affected the manner in which appellate courts must carry out their function when considering an appeal against the exercise of a statutory discretion. I take the view that the approach set out at [7] remains the approach that must be taken on appeal.
Discussion
[15] Section 94(1) confers discretion on a Court to substitute a community-based sentence for a period of diqualification from driving. However, this is not a general untrammelled discretion. In s 94(1)(b), Parliament has specified four considerations which a Court is to have regard to when considering whether to substitute a sentence or not. I consider that those considerations are mandatory. It follows that if a Court exercises, or purports to exercise, its discretion under s 94 without paying regard to those considerations it will have failed to take into account a material consideration, which will leave its decision open to an appeal: see Keates at [7].
[16] In this case, the Judge’s sentencing notes do not set out each of the four considerations in s 94 that he was required to take into account. Furthermore, his reference in [7] of the sentencing notes to there being “three matters” to consider suggests that he has misdirected himself on the requirements of s 94(1)(b).
[17] I consider that he has addressed the considerations in s 94(1)(b)(i) at [3]-[7] of the decision, the s 94(1)(b)(ii) considerations at [8] of the decision, and the s 94(1)(b)(iv) considerations at [9] of the decision.
[18] However, nowhere in the sentencing notes does the Judge directly and expressly address the s 94(1)(b)(iii) considerations, despite the contention of the police that the Judge addressed these at [5] and [10].
[19] The comments at [5] summarise the grounds of Ms Hatakeyama’s application. As part of that summary, the Judge referred to information that he was given from the bar about Ms Hatakeyama’s part-time work, concerns regarding the public transport in Auckland, and that she would be unable to undertake her casual employment should she be disqualified. I do not equate the Judge’s acceptance of this information and his summarising the grounds of the application under s 94 with an indication that he has directed his attention to the considerations in s 94(1)(b)(iii). The contents of [5] indicate information that he could consider in the context of s
94(1)(b)(iii), but whether he in fact considered the information cannot be seen from
[5].
[20] I now turn to [10] of the judgment. In that paragraph, the Judge said he was unable to exercise the discretion in s 94 in Ms Hatakeyama’s favour. He described the offence which had brought her before him for sentence as a “single incident of disqualified driving”. He opined that Ms Hatakeyama’s ability to undertake her studies had not been previously compromised by the earlier order of disqualification. From this, he inferred that she would continue to have no difficulty in complying with the order. This appears to be the only regard the Judge paid to the question of the impact of a further order. He then went on to say that he did not find Ms Hatakeyama’s circumstances sufficiently compelling to exercise the discretion in her favour.
[21] There is nothing in [10] that indicates that the Judge specifically turned his mind to the likely effect on Ms Hatakeyama of a further order of disqualification. Having accepted at [5] that she would face difficulties in carrying out her employment, he did not go on to take this into account as part of the assessment of the effect of a further order of disqualification. Indeed, he appears to have reasoned that because Ms Hatakeyama’s ability to undertake her studies was not previously compromised, the same could be safely assumed regarding a further order of disqualification. Thus, he used her past conduct as an indication of the likely effect of a further order. He does not give reasons as to why that was a safe assumption. Overall, I am not satisfied that the Judge properly turned his mind to the considerations in s 94(1)(b)(iii); either expressly or by necessary implication. The result is that he has failed to take into account one of the mandatory considerations in s 94(1)(b); and therefore made an error of law.
[22] I have considered whether it would be appropriate to order a further period of disqualification under s 94. Regrettably, a detailed and well-supported basis for the application was not presented at the sentencing. This has a detrimental impact on the ability of an appellate Court to consider the s 94 application. Though certain relevant factual information was provided from the bar, both at first instance and on appeal, this in itself is unsatisfactory.
[23] I consider that before any consideration can be given to a substitute penalty under s 94, Ms Hatakeyama must make a properly prepared application. This should include affidavit evidence which addresses the considerations in s 94(1)(b). Had the Judge been presented with such material, he may have dealt specifically with all the considerations in s 94.
[24] At the appeal hearing, I was informed from the bar that Ms Hatakeyama is 50 years old with a 13 year old daughter. Ms Hatakeyama is described as a solo mother on a solo parent’s benefit, who is studying to obtain a higher education for to enable her to independently provide for herself and her daughter. It is submitted that the attendant personal and a public benefits in Ms Hatakeyama achieving this goal favour a substitute penalty.
[25] Ms Hatakeyama studies accounting and business at Manukau Institute of Technology in Otara, Manukau. She has been studying for one and a half years and has approximately two years left for her diploma. I understand that her course is from Monday to Thursdays. On Mondays and Wednesdays, her course runs from
5.30 pm to 7.30 pm, and she stays until 10.00 pm to get extra assistance and help to use the computer. On these days, she takes her daughter with her. On Tuesdays and Thursdays, Ms Hatakeyama’s course runs from 1.00 pm to 3.00 pm, and then she goes home to her daughter.
[26] It was submitted that there is a significant distance between Ms Hatakeyama’s home in Flat Bush, Otara, and her place of study; and there is no direct bus link between the two places. It is said that if she is subject to a further period of disqualification, Ms Hatakeyama will most likely be unable to continue her studies.
[27] Ms Hatakeyama has driven while disqualified on two occasions, and it is submitted that her circumstances come within the kind of situation for which s 94 was enacted, namely to stop disqualified drivers from further disqualification by imposing a substitute sentence such as community work.
[28] Ordinarily, the transport problems Ms Hatakeyama faces could be overcome by an application for a limited licence. However, Ms Hatakeyama’s financial circumstances are strained, and I am told that she cannot afford to make such an application.
[29] The circumstances as Ms Hatakeyama’s counsel has described, suggest to me that the temptation for Ms Hatakeyama to continue to drive while disqualified will be strong; if not occasionally irresistible, particularly with the onset of winter. I consider that Ms Hatakeyama is likely to be someone to whom s 94 was directed. Her circumstances have already caused her to drive while disqualified, and I consider there is a risk of her continuing to do so even though a further period of disqualification has been imposed.
[30] Turning to the case law, in Maeva v Police at [30]-[34], Keane J set out the “animating purpose” of s 94. He recognised that originally there was a question as to whether s 30A (the predecessor of s 94) could be invoked in the case of a disqualified driver who had only one previous conviction. Keane J concluded that the scope of s 94 applied to disqualified drivers who are caught in a cycle of disqualified driving but have no other recent convictions for serious road safety offences. He concluded by finding:
What I wish to emphasis is that s 94 is now, once again, unambiguously remedial though always to be exercised, as it says itself, consistent with the public interest not merely the interest of the offender.
[31] Mr Maeva had three convictions for disqualified driving. Ms Hatakeyama now has two convictions for driving while disqualified. I consider that the vulnerability of her circumstances put her in the category of persons that are in the early stages of beginning a cycle of disqualified driving. She has no other recent convictions for serious road safety offences.
[32] I consider that, in principle, her circumstances have sufficient similarity to Mr Maeva’s, such that they would make her application under s 94 likely to be granted. They reveal compelling personal and public reasons to support Ms Hatakeyama and to provide her with opportunities to improve her life and her daughter’s through assisting her continued use of the educational opportunities currently available. However, I am not prepared to allow this appeal by substituting the period of disqualification with a sentence of community work. This is because I consider that something more than information from the bar to support the application is required.
Conclusion
[33] I consider the circumstances that I have described support, in principle, the grant of an application under s 94; but they need to be reliably established. They should be set out by Ms Hatakeyama in an affidavit so that the Court has sworn testimony to support the application. Secondly, she should provide independent written confirmation of the circumstances that were outlined to me. Her Case Officer at Work and Income should be able to help, as I would expect that
person would have some knowledge of Ms Hatakeyama’s efforts to make herself independent of a solo parent’s benefit. Thirdly, written confirmation from the Manukau Institute of Technology of Ms Hatakeyama’s attendance at the Institute and the time of her classes should be made available. Fourthly, if public transport is a problem, timetables showing the unavailability of a direct bus between Ms Hatakeyama’s residence and her place of studies, as well as the time of any public service transport, should be made available to the Court.
[34] Without independent confirmation of the above circumstances, a Court cannot properly consider the s 94 application. It is necessary, therefore, to refer the application back to the District Court for rehearing. I would anticipate that at any such rehearing, the information I have described as necessary to support a s 94 application will be placed before the Court.
Duffy J
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