JAMES LEE BATES AND NEW ZEALAND POLICE

[2024] NZHC 2700

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2024-409-192

[2024] NZHC 2700

BETWEEN

JAMES LEE BATES

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

18 September 2024

Appearances:

R Adams for Appellant

M W Fulton for Respondent

Judgment:

18 September 2024

ORAL JUDGMENT OF DUNNINGHAM J

Introduction

[1]    James Bates pleaded guilty to a charge of theft over $1,000 by a person in a special   relationship,1   and   a   charge   of   driving   while   licence   suspended.2  On 24 July 2024 he was sentenced by Judge Couch to six months’ community detention for both charges, 10 months’ supervision for the theft charge, and was disqualified  from  holding  or  obtaining  a  driver  licence  for  six  months  from  24 June 2024.

1      Crimes Act 1961, s 220 & 223(a). Maximum penalty: seven years’ imprisonment.

2      Land Transport Act 1998, s 32(1)(c) & 32(3). Maximum penalty: three months’ imprisonment or a fine not exceeding $4,500.

BATES v NEW ZEALAND POLICE [2024] NZHC 2700 [18 September 2024]

[2]    Mr Bates confines his appeal to the sentence imposed on the driving charge, saying his application under s 94 of the Land Transport Act 1988 (the Act) should have been granted. No issue is taken with the sentence on the dishonesty charge.

The facts

[3]    As this appeal relates only to the sentence imposed on the driving charge, I outline only those relevant facts.

[4]    In January 2024, Mr Bates’ driver licence was suspended for excess demerit points. The suspension was due to end in April 2024. In February, Mr Bates drove a car on a suburban road in Christchurch and was stopped for a routine traffic stop. Enquiries revealed that he was suspended from driving. In explanation he said that he was unaware his licence was suspended.

District Court decision

[5]    The Judge took a starting point of 15 months’ imprisonment on the theft charge and uplifted by one month for the driving charge. The Judge allowed 25 per cent credit for Mr Bates’ guilty plea, and a further five per cent for Mr Bates’ remorse. This made an end sentence of 11 months’ imprisonment. However, the Judge considered the purposes of sentencing could be achieved by a significantly less restrictive sentence, and he sentenced Mr Bates to six months’ community detention. The Judge also sentenced Mr Bates to 10 months’ supervision (in relation to the theft charge) with special conditions.

[6]    In relation to the disqualification, the Judge noted the mandatory minimum period of disqualification (six months) outlined in the Act. The Judge accepted that it was “certainly not in the public interest that you should lose your employment”. However, the Judge considered the most appropriate way to address this problem was for Mr Bates to apply for a limited licence. To assist in that process, the Judge backdated the disqualification period by one month to allow Mr Bates to make an application for a limited licence immediately. The Judge ordered Mr Bates to be disqualified  from  holding  or  obtaining  a  driver  licence  for  six  months  from  24 June 2024.

Law on appeal

[7]    Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.3

[8]Justice Davison outlined the appropriate approach to appeals of this nature in

Poona v Police:4

The power to make an order under s 94 is the exercise of statutory discretion. The Court therefore has limited jurisdiction on appeal: it may only interfere if the appellant can demonstrate that the Judge in the Court below erred in principle in exercising his or her decision; failed to take into account a material consideration; took into account an irrelevant consideration; or was plainly wrong.

The weight to be given to individual factors is a matter for the sentencing Judge. It is not for the appellant Court to say that the Judge placed undue weight on one factor, or should have placed greater weight on another.

Appellant submissions

[9]    Ms Adams submits that the Judge’s decision was based on his erroneous understanding that the appellant was permitted to make an application for a limited licence. Had he been aware of that, the information which was before the Court, including the circumstances of the case and of the offender and the likely effect of a further order of disqualification, would have supported the substitution of disqualification with a community-based sentence under s 94 of the Act.

Respondent’s submissions

[10]   Ms Fulton acknowledges Mr Bates is precluded from making an application for a limited licence under s 103(2)(c) of the Act, and therefore the Judge’s decision to decline to grant the s 94 application was made based on an error of law. She submits it will be for the Court to reconsider whether the test under s 94 was met.

3      Criminal Procedure Act 2011, ss 250(2) and 250(3).

4      Poona v Police [2018] NZHC 791 at [14] – [15].

Discussion

[11]   At issue in this appeal is whether Mr Bates’ disqualification should be substituted with a community-based sentence pursuant to s 94 of the Act.

[12]Section 94 provides a Court must consider:5

(a)the circumstances of the case and the offender;

(b)the effectiveness or otherwise of a previous order of disqualification made in respect of the offender;

(c)the likely effect on the offender of a further order of disqualification; and

(d)the interests of the public.

[13]   It is significant, in Mr Bates’ case, that there is no evidence of unsafe or dangerous driving, nor has he received any demerit points for speeding. The vast majority of Mr Bates’ traffic offences relate to the licencing/registration issues in respect of the vehicle he was driving or breaches of his learner licence, which have now been mitigated by the fact that he has obtained his restricted licence. In the current offending, Mr Bates was pulled over for a routine traffic stop and there is no suggestion he was speeding or otherwise driving dangerously at the time. By obtaining his restricted licence I consider Mr Bates has shown competence in his driving capabilities and does not pose a risk to the public.

[14]   The likely effects of disqualification were at the forefront of Ms Adams’ submissions and were referred to by the Judge in his sentencing decision. The Judge was sympathetic to Mr Bates’ circumstances, as demonstrated by his intention to allow Mr Bates to obtain a limited licence without delay. On appeal, Ms Adams made submissions regarding Mr Bates’ work as a chef at a restaurant in central Christchurch which requires him to work split-shifts, which can vary in time and day. Ms Adams

5      Roberts v Police [2022] NZHC 1439.

advised that Mr Bates lives some distance from the restaurant and an inability to drive will make getting to and from work difficult given his shifts can end as late as 10 pm and the cost of getting an Uber or taxi. I note there is no indication disqualification would result in unemployment, only that Mr Bates would need to reduce his shifts to suit when he can prevail on other people to drive him to and from work. Nevertheless, I accept Mr Bates and his family will come under financial strain if he is unable to work his usual hours. I do not consider it is in the public interest to hinder Mr Bates’ ability to work full time.

[15]   I accept Ms Fulton’s submission that disqualification has been effective in the past from deterring Mr Bates from driving. However, considering Mr Bates now has his restricted licence, does not drive dangerously or otherwise pose a risk to public safety, and the financial strain a period of disqualification is likely to cause, I do not consider disqualification is appropriate in this case. As Ms Fulton indicated in her submissions, a community-based sentence is available and appropriate as Mr Bates was sentenced to six months’ community detention at the same time as being disqualified from driving.

[16]   I have considered what sentence should be imposed in lieu of disqualification noting that in Burgess v Police I said the disqualification period on such applications tends to be substituted with between 40 and 100 hours of community work.6 I consider in this case that 75 hours of community work would be appropriate, noting the     two month period of disqualification which Mr Bates has already served, and the fact that he would be completing this alongside full time work.

Result

[17]The appeal is therefore allowed.

[18]   The order for disqualification is quashed and substituted with 75 hours of community work.

Solicitors:

Crown Solicitor, Christchurch

Copy to: Josh Lucas Barrister, Christchurch

6      Burgess v New Zealand Police [2021] NZHC 362 at [25].