Hemana v Police
[2014] NZHC 1133
•27 May 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2014-404-000088 [2014] NZHC 1133
BETWEEN JEWELLYNDEL HEMANA
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 26 May 2014 Appearances:
C L Sigamoney and J M O'Halloran for Appellant
J Barry for RespondentJudgment:
27 May 2014
JUDGMENT OF VENNING J
This judgment was delivered by me on 27 May 2014 at 3.00 pm, pursuant to Rule 11.5 of the High
Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: Public Defence Service, Auckland
Meredith Connell, Auckland
HEMANA v NZ POLICE [2014] NZHC 1133 [27 May 2014]
[1] Ms Hemana appeals against a decision of Judge MacAskill declining to grant her application for a community based sentence in lieu of disqualification.1
Background
[2] On 17 September 2013 at about 10.00 am in the morning, Ms Hemana was driving a car on Moire Road, Massey. She had been to collect medication for her ill mother from the pharmacy. She was stopped by the police. Ms Hemana had previously been convicted of driving whilst suspended on 7 November 2012 and driving whilst disqualified on 23 July 2013.
[3] Ms Hemana was charged with driving whilst disqualified (third or subsequent pursuant to ss 32(1)(a) and 32(4) of the Land Transport Act 1988 (the Act)). Ms Hemana pleaded guilty and made an application pursuant to s 94 of the Act.
The District Court decision
[4] Judge MacAskill accepted that it was open for Ms Hemana to apply under s 94 for the substitution of a community based sentence in place of a further order of disqualification but declined her application. The Judge sentenced Ms Hemana to
120 hours community work and disqualified her for 13 months commencing on 27
March 2014.
[5] Having regard to the circumstances of the offending and Ms Hemana’s personal circumstances the Judge was not persuaded that a sentence of community work was more appropriate than disqualification.
The appeal
[6] Ms Hemana appeals on the basis that the Judge: (a) erred in principle;
(b) took into account irrelevant considerations; and
1 New Zealand Police v Hemana DC Waitakere CRI-2013-090-005559, 27 March 2014.
(c) gave insufficient weight to Ms Hemana’s personal circumstances and the effect of disqualification on her.
[7] In particular Ms Sigamoney submitted the Judge took into account:
(a) irrelevant considerations, namely that Ms Hemana could not be described as a recidivist offender;
(b)placed too much weight on the fact that she was unable to obtain a limited licence under s 103(2)(c) of the Act; and
(c) irrelevant considerations as to the numbers breaching community work sentences.
[8] Counsel referred to a number of decisions of this Court where s 94 has been discussed and applied.2 While I have had regard to those cases and the principles established, the cases make it clear that the particular facts of each case are determinative of the outcome.
Decision
[9] Counsel approached this matter as an appeal against discretion. I am content to deal with it on that basis.
[10] Section 94 is not limited to repeat offenders, but it is often applied to them. As Lang J observed in Tailor v Police:
[9] Parliament recognises that this type of situation is peculiar to offenders who persistently drive whilst disqualified. Section 94 represents Parliament’s endeavour to provide an alternative form of sentence so that the cycle of offending can be broken.
[10] Mr Tailor is not, however, a recidivist offender by any means. He has only been convicted of driving whilst two disqualified on two occasions and driving whilst his licence was suspended on one occasion. All of his offending, putting to one side the present charges, occurred between 15
December 2007 and 7 October 2008. For that reason Mr Tailor falls outside
2 Maeva v New Zealand Police HC Auckland CRI-2010-404-402, 11 March 2011; Toka v Police
[2012] NZHC 3347; Beeston v Police [2012] NZHC 1064; Tailor v Police HC Auckland CRI-
2009-404-322, 7 December 2009; and Prasad v Police [2014] NZHC 219.
the ambit of offenders that Parliament was primarily considering when it enacted s 94. That is not to say, however, that s 94 cannot be applied in his situation. As Asher J recognised in Yu v Police HC AK CRI 2006-404-273
10 November 2006, the section may still be applied in situations where an offender has not been convicted of many offences of driving whilst
disqualified. The benefits of the section are therefore not restricted to repeat
offenders.
[11] I do not consider it can be said the Judge fell into error and effectively limited the application of the section to recidivist offenders. The Judge said:
[20] Historically, the discretion under s 94 or its predecessor legislation has been exercised mainly in situations where the offender is on the treadmill of disqualification. That is not to say that that is the only case in which it can be exercised, but simply to recognise that that is the most obvious case for the exercise of the discretion. You come nowhere near close to being a recidivist driver while disqualified.
[12] I do not regard those observations of the Judge as going any further than the authorities have indicated, namely that an applicant on an “endless cycle” of disqualification or the “treadmill of disqualification” is a factor that could support the application. The Judge was entitled to take the view that Ms Hemana was not yet at that stage. I do not consider the Judge took that as a factor against her but rather simply did not consider her number of disqualifications were such as to be a compelling feature of her case.
[13] In relation to the issue of Ms Hemana’s inability to obtain a limited licence
because of the provisions under s 103(2)(c) of the Act the Judge said:
[19] In addition to that, there is the question of a limited licence. Your counsel says that you do not qualify for a limited licence because this conviction is for breaching a disqualification order. That needs to be thought through. If the Legislature has decided that people who drive while disqualified should not get a limited licence, then it seems to me that the Court should be careful before not disqualifying at all. The Court should have regard to Legislative policy in restricting the grant of limited licences when considering whether that process is effectively being subverted by a resort to s 94 not to impose disqualification at all.
[14] I accept Ms Sigamoney’s submission that Parliament has made its intention clear by the use of the express wording in s 94(4)(b). It has discretely provided that an applicant may not apply under s 94 if they are otherwise prohibited from applying for a limited licence under ss 103(2)(a), (b) or (d) of the Act. By omitting reference
to s 103(2)(c) of the Act from s 94(4) Parliament has decided that notwithstanding a person may be prohibited from applying for a limited licence under s 103(2)(c), they are nevertheless entitled to apply under s 94.
[15] Ms Sigamoney also submitted that the Judge had erred by engaging in consideration about non-compliance rates of community work and comparing that with the effect of disqualification. He noted that if community work orders are not complied with then one option for the Court is to impose other sanctions. I agree that it was unnecessary for the Judge to engage in that discussion. In any event the point the Judge made about non-compliance with community work could apply equally to non-compliance with disqualification orders in that not every order of disqualification is complied with.
[16] Notwithstanding the above, for the reasons that follow, I am satisfied that the Judge’s ultimate conclusion in this case was correct having regard to the considerations in s 94(1)(b) and (c).
[17] In the present case Ms Hemana satisfies s 94(1)(a) and is not disqualified by s 94(4). While she is prohibited from applying for a limited licence under s 103(2)(c) of the Act, Parliament has chosen to exclude prohibition under that section from s 94(4)(b).
[18] The issue in the present case is whether, having regard to: (a) the circumstances of the case and Ms Hemana; and
(b)the effectiveness or otherwise of the previous order of disqualification made in respect of her; and
(c) the likely effect on her of a further order; and
(d) the interests of the public
it would be inappropriate to order her to be disqualified and it would be appropriate to sentence her to a community based sentence.
[19] The circumstances of this case and Ms Hemana are unremarkable. There is no suggestion that her driving on this occasion was of concern in itself. Ms Hemana is apparently a solo mother having recently given birth to her first child. She is now
22 years old. She obtained her learners and restricted licence in 2012. Her licence was suspended due to demerit points that year. She is also the principal caregiver for her mother who suffers from seizures following a stroke in September 2012.
[20] Ms Hemana said she needs her licence to drive to obtain medication for her mother and to meet the possibility of the need to take her child to the doctor.
[21] Ms Hemana has failed to present any evidence that discloses the disqualification as anything other than an inconvenience to her. Ms Hemana’s evidence in this regard is, as conceded by Ms Sigamoney, general. I have to say it is general in the extreme. There is no evidence for example to explain what the precise requirements are for her mother’s attendance at her doctor, the number of times medication is required from the pharmacy, or why Ms Hemana could not obtain that medication for her mother by taking public transport to and from the pharmacy. Similarly there is no evidence in her affidavit of any ongoing medical issue with the child that requires regular medical treatment, or if so, how far the doctor’s surgery is from Ms Hemana’s home. There is a general suggestion by Ms Hemana that being without a licence limits her in terms of work and study opportunities and she is no longer able to work at the Hallertau Restaurant at Riverhead. However at most she says:
I am expecting to go back to my old job at Hallertau Restaurant in Riverhead when my domestic situation has settled down.
It is apparent that her priorities are elsewhere at present.
[22] I agree with the observations of Judge MacAskill that:
[17] … If the Courts were to grant s 94 applications without a proper evidential foundation, it seems to me that it would be very difficult to restrain a flood of applications, …
[23] It is difficult to determine the effectiveness or otherwise of the previous orders of disqualification on Ms Hemana. She drove for the first time while
suspended on 23 October 2012 and then on the last occasion before the present on 2
February 2013 (just under two months short of completing the then disqualification). On the present occasion, she drove on 17 September, but the disqualification had not been imposed until July. So there have been periods when she has been able to drive. This period of disqualification of 13 months is the most significant period that she has faced. All that can be said is that it will now be apparent to her how serious her situation is. She faces community work as well as disqualification. The seriousness of her offending and driving while been disqualified must now have been brought home to her.
[24] As to the interests of the public, while I accept Ms Sigamoney’s submission that there is no suggestion in the present case that Ms Hemana’s driving of itself presents any particular danger to the public, there is force in the observations of Lang J in Tailor that the interests of the public can include ensuring that persons who are disqualified from driving obey the orders of the Court. It would be unfair to compliant offenders if non-compliant offenders were to be seen to receive some kind
of advantage as a result of their conduct.3
Summary/result
[25] Weighing those factors in the balance I am satisfied that Judge MacAskill was right to conclude it would not be inappropriate to order that Ms Hemana be disqualified from holding or obtaining a driver’s licence in this case.
[26] For those reasons the appeal is dismissed.
Venning J
3 Tailor v Police, above n 2 at [25].
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