Hoffman v Police
[2017] NZHC 1313
•14 June 2017
IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY
CRI 2017-406-5 [2017] NZHC 1313
BETWEEN LACHLAN VALE HOFFMAN
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 13 June 2017 Counsel:
R M Gould for Appellant
S Revell for RespondentJudgment:
14 June 2017
JUDGMENT OF ELLIS J
[1] On 10 April 2017 Mr Hoffman was sentenced on charges of intentional damage and driving while disqualified (third or subsequent) to five months’ community detention, 15 months’ intensive supervision (with judicial monitoring),
12 months’ disqualification, and $150 reparation.1
[2] He appeals against the Judge’s refusal to substitute the mandatory disqualification for a community-based sentence pursuant to s 94 of the Land Transport Act 1998. He does not appeal against the other aspects of the sentence.
[3] Section 94 relevantly provides:
(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—
1 Police v Hoffman [2017] NZDC 8545.
HOFFMAN v POLICE [2017] NZHC 1313 [13 June 2017]
(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).
Background
[4] The intentional damage charge related to events on the evening of
31 December 2016 which for present purposes do not need to be set out here. Suffice it to say it was relatively low level offending.
[5] As far as the driving while disqualified charge is concerned, Mr Hoffman was first disqualified from driving on 21 September 2012. On that occasion he was disqualified from driving for six months following two convictions for driving without a licence. He was 17 at the time. On 20 May 2013 he was convicted and sentenced on three charges of driving while disqualified. The three occasions giving rise to the charges occurred within a four month period, between December 2012 and March 2013. He was then further disqualified from driving for 9 months.
[6] In the intervening period it seems that Mr Hoffman has obtained a learner’s licence. But last year, and apparently as a result of accrued demerit points, his licence was suspended. On 26 July 2016 he was caught driving in breach of his suspension. He was disqualified from driving for six months on 12 September 2016.
[7] Prior to the expiry of that period, on Sunday 8 January 2017, Mr Hoffman was stopped by Police after being seen driving a car in poor condition in Richmond. His explanation at the time was that he was on a learner’s licence and his lawyer had told him that his disqualification was only for three months.
[8] Prior to his sentencing in the District Court, Mr Hoffman had, through WINZ, obtained an appointment to sit his restricted licence. He was, however, unable to do that because of the pending charges.
District Court sentencing
[9] I deal only with the s 94 aspect of the sentencing. The Police took a neutral stance on the application in the District Court.
[10] The Judge began by recording that he was satisfied that the threshold for the application was met, namely that there has been a previous disqualification period and Mr Hoffman was not prohibited from applying for a limited licence. He then referred to several High Court authorities, noting that:
(a) the s 94 discretion was wide and the provision was capable of applying to any person who has at least one previous disqualification;2
(b)s 94 should only be used to justify a variation from the norm where the personal circumstances of the offender, and in particular the rehabilitative prospects, justify affording the offender an opportunity to break the cycle of circumstances contributing to the recidivist offending;3 and
(c) applications under s 94 should not be regarded as routine and require a careful balancing of the public interest and there needs to be a real risk that the person concerned will lose their job as the result of having no licence: Mallon v Police.4
[11] In terms of applying s 94 to Mr Hoffman’s case, the Judge said:
[14] As to the circumstances of both you and the circumstances of your offending, this offending involves you deliberately purchasing and driving a motor vehicle in poor condition in Nelson, and intending to travel in (sic) some 120 or so kilometres to Blenheim. You had purchased a one way bus ticket to get to Nelson, with no way guaranteed for you to get back to your home, apparently intending to rely on others for transport but they have let you down.
2 Beeston v Police [2012] NZHC 1064.
3 Wilson v Police [2014] NZHC 3028.
4 Mallon v Police HC Invercargill AP76/95, 24 April 1996.
[15] Your own person circumstances, as I have outlined from the probation report, indicate that you were a person who struggles to control yourself. You have been involved with drugs, and it is said you have a dismissive attitude to those in authority. Your performance on previous community-based sentences is seemingly poor, although I accept there are potential medical factors which need and no doubt will be considered on the breach of community work charge which you have entered a not guilty plea to. All of these factors count against your application.
[16] The effectiveness of previous disqualification orders that have been made is a difficult matter to assess, as the High Court has observed in Jukes v Police. You have now been driving whilst disqualified on four separate occasions, the most recent being in July of 2016, which was the disqualification period which you breached when you drove on this occasion. My assessment is that the effectiveness of previous disqualification orders has not been particularly sound, no doubt coloured by your own personal attitudes and views of the world as outlined in the probation report.
[17] As to the likely effect of a further disqualification period, this is a case where you have in fact lost your employment and are currently on ACC. It is not clear to me, at the moment, when you might be successful in regaining employment, but it is clear that you have not or will not lose your current employment as a result of any disqualification period I might impose because you have already lost your job for unrelated medical reasons.
[18] Finally, there is the public interest factor. The principles relating to this are set out in the decision of Hurlstone v Police and in Mallon. It is a balancing exercise between the desirability of keeping you off the road as against the undesirability of your livelihood being in jeopardy and then having to go on to a benefit and the like. The ultimate question for me is whether it would be inappropriate to disqualify you, and I must consider whether it would be appropriate to sentence you to a community-based sentence.
[19] I have real difficulty in you being able to satisfy this public interest factor. You have, in effect, been thumbing your nose at those in authority, including Court orders. You have made the deliberate decision to purchase and then get in an unroadworthy vehicle in Richmond to drive it some distance towards Blenheim. I think it is in the public interest that people like you are kept off the road, and the personal factors which you have advanced I consider are secondary to that.
[20] For all of these reasons, I have reached the view that you cannot satisfy the criteria under s 94 Land Transport Act, and your application that you have a community-based sentence substituted for a disqualification period will be refused.
Discussion
[12] I agree with Ms Gould that the Judge’s reasoning is suggestive of possible
error.
[13] First, although in Mallon Tipping J did say that there needed to be “at the very least” a real risk that the person concerned will lose their job as the result of having no licence, I do not consider that that represents the law under the current section.5 It is difficult to see why the effect of disqualification on an offender’s job prospects might not carry at least some weight both in terms of analysing the likely effect of disqualification on the offender and in terms of any wider public interest analysis.
[14] Secondly, it seems implicit in the language used, and conclusion reached, by the Judge that he treated the apparent ineffectiveness of previous disqualifications as counting against a s 94 order. The reference to Juke v Police also suggests that this was the line of thinking.6 It is clear from a number of more recent cases, however, that one of the principal purposes of the section is to allow offenders to break the cycle of recidivist offending; it can therefore be the fact that previous disqualifications have not been successful that favours alternative disposition under s
94. For example in Maeva v Police, Keane J noted:7
[30] Section 30AC of the Transport Act 1962, from which s 94 derives, was always understood to be ‘remedial’. It was to abstract recidivist disqualified drivers from an unending ‘wheel of offending’, where any further disqualification was likely only to engender further offending. It also came to be invoked when the offender could not obtain a limited licence.
[31] Section 30AC, Hardie Boys J said in Mitchell v Police, marked ‘a clear shift in the emphasis of penal policy’. For until then, he said, ‘the emphasis was on insisting on compliance with Court orders and punishing those who flouted them in part with longer and longer terms of disqualification’. Police v Te Rupe is a not atypical instance. There the discretion was exercised where the offender had 15 convictions for disqualified driving within five years and three, or three more, were in issue.
5 Mallon was concerned with s 30AC of the Transport Act 1962.
6 Jukes v Police HC Christchurch AP228/94, 5 October 1994. In that case, Tipping J appeared to treat the effectiveness of a previous disqualification as pointing in favour of making a substitution order (under s 30AC). He noted that the previous offending was 10 years earlier and that “It is not a case where it can be said that the previous order was thoroughly ineffective and thus should be reinforced by a further order.”
7 Maeva v Police HC Auckland CRI-2010-404-402, 11 March 2011. (footnotes omitted)
Originally there was even a question whether s 30AC could be invoked in the case of a disqualified driver who had only one previous conviction.
[32] When s 94 was first introduced in 1998 it was more narrow than s
30AC. It then precluded anyone, like Mr Maeva, who had convictions for driving while disqualified, from seeking a substituted sentence. That, as
Durie J said in Police v Edwards emasculated the former s 30AC power as it
had always been understood and applied.
[33] That was remedied when s 94 was amended in 2005. Recidivist disqualified drivers like Mr Maeva became entitled once more to apply for a substituted sentence. The Select Committee confirmed that s 94 was to be amended to ‘extend its scope to include disqualified drivers who are caught in a cycle of disqualified driving but have no other recent convictions for serious road safety offences’.
[15] I also accept Ms Gould’s submission that (as the final dictum from Maeva above suggests) the absence of previous convictions for other driving offences is also a potentially relevant factor in terms of where the public interest lies. That is because, in the absence of road safety convictions (or other demonstrable risk of unsafe driving), then the public interest in keeping the roads safe would, at least, be rendered a neutral factor. At best, however, that factor could only be given limited weight here. While it is true that Mr Hoffman has no road safety convictions, he has never had an more than a learner’s licence and, in the present instance, was found driving an unwarranted and unsafe car.
[16] In any event, I consider that the first two matters mentioned above do warrant
looking at Mr Hoffman’s case afresh.
[17] My own view of the matter is that Mr Hoffman’s circumstances do indicate that he falls into a class of people that s 94 was intended to target and assist. More particularly, most (if not all) of his relevant offending has been actuated by the fact that he has not yet managed to obtain even his restricted licence. He had taken steps towards doing so but these have been thwarted by his latest disqualification. The relevant unbreakable cyclical pattern of repeat offending does seem to me to be present here.
[18] Next, the fact that he was supported by WINZ in these endeavours indicates that his ability to drive is regarded as important in terms of getting him back into employment; public transport in Blenheim is limited, at best. And Mr Hoffman’s own evidence in the District Court suggests that he does have some commitment to working; he says that he hates being on a benefit. Moreover, his motivation for making the foolish decision to buy a car and drive back to Blenheim on 8 January this year was, he says, that he wanted to be there for work on Monday (the next day). He explained that he was already on a final warning as he had previously missed
work due to a shoulder injury.8 There is, accordingly, a clear public interest in
assisting Mr Hoffman to get a licence and enabling him to drive.
[19] Counting against those matters is Mr Hoffman’s rather underwhelming compliance record and the anti-social tendencies noted by the Judge. But his chance of overcoming those and going down a more positive course is hardly enhanced by seriously reducing his chance of gainful employment. He is still only 22 years old and, in my view, should be given an opportunity to sort his life out; getting his restricted licence sooner rather than later seems to me to be the key to that.
[20] I allow the appeal accordingly. The order for disqualification is quashed. In terms of the requirement to impose a community-based sentence instead I note that the Judge has already sentenced him to five months’ community detention and
15 months’ intensive supervision with judicial monitoring on the driving while disqualified charge. I agree with Ms Gould that those sentences are relatively stern;
there is no need to add to them.
Rebecca Ellis J
8 In the end, he was fired from this job because of that injury.
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