Judd v Police

[2023] NZHC 1001

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-404-000443

[2023] NZHC 1001

IN THE MATTER OF

an appeal against refusal to grant s 94 application

BETWEEN

GEOFFREY IAN JUDD

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	1 May 2023
Appearances:	C Mitchell for Appellant H T Reid for Respondent
Judgment:	1 May 2023

(ORAL) JUDGMENT OF EDWARDS J

Counsel/Solicitors:

C Mitchell, Auckland

Meredith Connell (Office of the Crown Solicitor), Auckland

JUDD v POLICE [2023] NZHC 1001 [1 May 2023]

[1]                On  15 November 2022,  Mr Judd  was  convicted  and   sentenced   by   Judge Bennett in the North Shore District Court of one charge of driving with excess breath alcohol.1

[2]                Mr Judd applied under s 94 of the Land Transport Act 1998 to have the mandatory disqualification period substituted for a community-based sentence. The Judge declined the application. Mr Judd now appeals.

Offending

[3]                The offending arose out of events on 6 May 2022. At about 7.35 pm that evening Mr Judd was driving his car on the Northern Motorway, Oteha.

[4]                He was stopped by police as the car tail lights were not switched on. A strong smell of alcohol was detected coming from the vehicle. An evidential breath test returned a positive result of 768 micrograms of alcohol per litre of breath. In explanation, Mr Judd said he had been drinking at the pub before driving home.

[5]                Mr Judd had two previous convictions. On 1 July 1999 he was convicted of driving with excess blood alcohol, and on 13 February 2003 he was convicted of driving with excess breath alcohol over 400 micrograms of alcohol per litre of breath.

[6]                Mr Judd was charged with driving with excess breath alcohol third or subsequent pursuant to ss 56(1) and 56(4) of the Land Transport Act 1998. That offence attracts a maximum sentence of two years’ imprisonment or a $6,000 fine. The Court must order the person to be disqualified from holding or obtaining a driver’s licence for more than one year.

Approach on appeal

[7]                Section 94 of the Act permits a sentencing Judge to impose a community-based sentence instead of a mandatory period of disqualification. An order is made if the Court considers it inappropriate to order that the offender be disqualified from holding

1      Police v Judd [2022] NZDC 26071.

or obtaining a driver’s licence, and it would be appropriate to sentence the offender to a community-based sentence.2

[8]                In considering whether it would be inappropriate to order disqualification, the Court has regard to:3

(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.

[9]                An appeal from a refusal to substitute a sentence of community work is an appeal against sentence. This Court must allow the appeal if satisfied that, for any reason, there is an error in the sentence imposed on conviction, and a different sentence should be imposed.4 Whether a sentence is manifestly excessive is to be examined in terms of the end sentence given, rather than the process by which the sentence was reached.5

District Court judgment

[10]            The Judge noted that she had given a lot of consideration to the s 94 application.6 She said she was not persuaded she could grant the s 94 application because of Mr Judd’s previous offending and she noted issues of road safety and public safety arising out of Mr Judd’s drink driving.

[11]            The Judge referred to Mr Judd’s supplementary affidavit setting out the financial position of his company. A letter from the company’s accountant indicated the company had made $15,500 in the last six months. She recorded Mr Judd’s evidence that if he could not drive essentially, he could not operate his business as there was insufficient income to fund a driver for him.

2      Land Transport Act 1998, s 94(1)(b) and (c).

3      Section 94(1)(b).

4      Criminal Procedure Act, s 250.

5      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

6      Police v Judd [2022] NZDC 26071 at [3].

[12]            While the Judge considered that she was not in a position to grant the s 94 application, she did accept the police prosecutor’s suggestion that the disqualification be backdated to allow Mr Judd to make an application for a limited driver’s licence immediately. The Judge considered that to be a better course because there were further or certain restrictions that could be placed upon that licence.7

[13]            In the event that the Judge had decided to substitute a community based sentence, she indicated that it would have been  100 hours of community work as  Mr Judd was not in a financial position to pay a fine. The Judge acknowledged that Mr Judd’s convictions were quite old, but considered that there needed to be a deterrent element in relation to the sentencing.

[14]            The end result was disqualification for a period of one year and one day but starting from 16 October 2022. This  meant  the  28-day  period  had  expired  and Mr Judd was able to apply for his limited licence immediately.

[15]            Mr Mitchell informs me from the bar that the District Court Judge suspended the disqualification pending the determination of this appeal.

Should the appeal be allowed?

[16]            The appeal is advanced on the same grounds argued before the District Court Judge. That is, that disqualification would have a significant and prejudicial effect on Mr Judd’s company with flow-on effects for his employees.

[17]            Mr Judd has filed two affidavits in support of the appeal. The first is sworn by him, and the second is sworn by the accountant to Mr Judd’s business. To the extent the affidavits contain updating information or confirm, in sworn form, matters which were previously before the Court, they are admissible. Other evidence contained in the affidavits is essentially confirmatory of what was before the District Court and there is no prejudice in admitting it. Overall it is in the interests of justice that the affidavits be admitted and I order accordingly.

7 At [4].

[18]            Mr Judd is owner and director of Form Concepts Ltd in Hillcrest. It is involved in the development of residential buildings from the foundations up. The company operates within the greater Auckland metropolitan area. It has six employees who, Mr Judd states, rely upon the company for their sole income. The company also uses sub-contractors who are dependent on the company for business.

[19]            Mr Judd explains that as the owner of the company it is his sole responsibility to visit clients of the company on site, and to evaluate and cost future jobs. He also visits architects, engineers, other professionals and suppliers of hardware. His job involves supervision of his employees in his role as project manager.

[20]            Mr Judd explains that disqualification from driving would be devastating. There is nobody who could assist in either driving him or undertaking the various duties he had to undertake to keep the company viable. That position is substantiated by the affidavit from his accountant setting out the financial position of the Company. The accountant confirms that the Company is not in a sufficiently financial position to absorb the extra costs of paying someone as Mr Judd’s driver during the period of his disqualification.

[21]            In his affidavit before this Court, Mr Judd says that it was clear the sentencing Judge did not believe the financial evidence and she also did not take into account the offending occurred when Mr Judd was under significant stress. His mother had had a stroke, and subsequently passed away. The Company was driven into the ground by COVID-19 and Mr Judd had to sell the family home in order to pay Company and personal bills.

[22]            I have every sympathy for the difficult circumstances Mr Judd found himself in at the time of the offending and I accept the evidence regarding the financial position of the Company. The difficulties of operating in the construction industry at this time are not underestimated.

[23]            However, those circumstances need to be balanced with the risks posed to public safety of Mr Judd being able to continue to drive. While his previous convictions are historic in nature, it is the third such offence that Mr Judd has

committed. However, I do acknowledge that the penalty imposed does appear to have been effective in the sense that Mr Judd has had no convictions for a period of approximately 20 years. I consider that to weigh in favour of disqualification in this case.

[24]            I consider the Judge’s approach in this case, to backdate the period of disqualification to allow Mr Judd to apply for a limited licence immediately, struck the right balance between these competing interests. A limited licence would allow Mr Judd to continue driving to meet his Company’s needs. The effect of the backdating meant that he did not have to wait the 28 days. However, the approach also provided a form of protection for the public given a limited licence may be issued on conditions. The balance struck by the Judge in this case was a fair and reasonable one which met the interests of justice.

[25]            Mr Judd explains in his affidavit that he did not apply for a limited licence because he understands there was a two or three-week delay in processing those applications. Counsel for Mr Judd, Mr Mitchell, confirms this position in submissions. But, in the scheme of things, a two or three-week delay is a relatively short period of time and significantly shorter than the six months it has taken to pursue this appeal. I am not satisfied that a delay in processing limited licence applications justifies allowing the appeal.

[26]Accordingly, the appeal must be dismissed.

Result

[27]The appeal is dismissed.

Edwards J