K v Police HC Auckland CRI-2010-404-269
[2010] NZHC 1675
•21 September 2010
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2010-404-269
K
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 20 September 2010
Appearances: Mr A Speed for Appellant
Ms R Savage for Respondent
Judgment: 21 September 2010 at 11 am
JUDGMENT OF LANG J [on appeal against sentence]
This judgment was delivered by me on 21 September 2010 at 11 am, pursuant to Rule
11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors:
Mr A Speed, Auckland
Crown Solicitor, Auckland
K V NEW ZEALAND POLICE HC AK CRI-2010-404-269 21 September 2010
[1] On 19 November 2009 Ms K was disqualified from driving for a period of six months. Ten days later, on 29 November 2009, she was found driving a motor vehicle when she was stopped at the Newton Road off-ramp at a checkpoint.
[2] Ms K pleaded guilty to the charge of driving whilst disqualified that followed, but applied under s 94 of the Land Transport Act 1998 to receive a community-based sentence rather than a further period of disqualification. After hearing submissions in relation to that issue, His Honour Judge Harvey declined the application. He disqualified Ms K from driving for a further period of six months from the date that her current disqualification ends.
[3] Ms K appeals to this Court against the Judge’s refusal to impose a community-based sentence upon her. She contends that the Judge erred in principle in declining her application, and asks this Court to quash the order for disqualification and impose in its place a community-based sentence.
What approach should the Court take in determining the appeal?
[4] At issue in the present appeal is the manner in which the Judge determined Ms K ’ application under s 94 of the Land Transport Act 1998. Section 94 provides:
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.
…
[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.
The grounds that Ms K relied upon in the District Court
[9] Ms K filed an affidavit in support of her application in which she deposed that she was pregnant, with her baby being due in November 2010. She described the difficulties that she will face as a result of a further period of disqualification as follows:
5. MY personal circumstances are that I am living at home with my parents and my two brothers. They are aware of the charge I face.
...
7. I have been on an unemployment benefit having been unsuccessful in obtaining work. I am 18 weeks pregnant and will be going on a sickness benefit in two weeks time. …
8. BECAUSE of this I have had difficulty attending at the hospital as both my parents are working and so are my brothers which will make it extremely difficult for me to make the necessary doctor’s appointments and hospital appointments during the ongoing course of my pregnancy.
9. I have spoken with my parents who are prepared to assist me to obtain a limited licence for these purposes.
10. I am required to undertake regular scans.
11. THE scans are carried out at the Horizon Clinic in Lincoln Road. I
also need to attend regular midwife appointments in Helensville.
12. I am presently complying with my sentence of community work and have approximately 42 hours to go. I intend completing that within the next
6 to 8 weeks and will be available to carry out more community work. Obviously this will be more difficult as my pregnancy advances but I will be
able to carry our (sic) more community work after my baby is born in
November.
[10] Ms K also confirmed in her affidavit that she had not been drinking at the time that she was caught driving on 29 November 2009, and that there was no complaint about the manner in which she had been driving. Her culpability lay solely in the fact that she had been caught driving whilst she was disqualified. She sought an order that no further period of disqualification be imposed upon her because of the difficulties that that would cause her in looking after her own health and that of her baby.
The Judge’s decision
[11] The material parts of the Judge’s decision are as follows:
[5] What has happened is that since the offending, since the first appearance, she has fallen pregnant and she is going on a Sickness Benefit. There is evidence confirming her pregnancy. She has difficulty attending hospital without a motor vehicle driver’s licence. She is not capable of obtaining a limited licence. She needs to go for regular scans to a clinic in Henderson and needs to attend midwife appointments in Helensville and therefore a driver’s licence is critical.
[6] These circumstances, of course, did not pertain when the offence was committed nor did they pertain until sometime earlier this year and certainly it would be difficult to justify granting the application with those reasons absent.
[7] The prosecution oppose the application and point out that the defendant soberly, consciously and deliberately ignored her disqualification but now asserts that the Court may consider the interests of the public and yet not further disqualify her. They cite comments that have been made in R v Elwin 10/8/94, CA290/93 [sic], about the importance of the public interest in the enforcement of laws relating to the utilisation of motor vehicles and that a period of disqualification is a punishment designed to protect the public.
[8] Effectively, in this particular case, she, a disqualified driver, chose to drive in breach of the disqualification order. A disqualification is recognition of the fact that a person has not achieved, or has not maintained, the necessary level of responsibility that is required by a person to drive a motor vehicle and now she comes asking for consideration because of her present condition.
[9] I have some sympathy with that but I cannot get around the fact that if one is prepared to break the law, in such a blatant fashion, one must pay the consequences and the consequences of course of driving whilst disqualified are severe.
[10] I am not prepared to grant the application. She will be convicted. She will be fined $300. Court costs $130. Disqualified six months from the date that her current disqualification ends which will be 19 November 2010. I am prepared to at least keep the disqualification to the minimum under the circumstances.
Decision
[12] The refusal of the application has undoubtedly produced harsh consequences for Ms K . She is undoubtedly suffering serious inconvenience as a result of the fact that she is not currently able to apply for a limited licence and is forced to rely on public transport. That inconvenience will no doubt continue, or even increase, once her baby is born. It can be argued that she will, in fact, suffer more than most people as a result of the fact that the Judge declined her application.
[13] Parliament must have known, however, that persons who are pregnant or who have young children will from time to time come before the courts charged with offences that carry a mandatory period of disqualification. It undoubtedly took the view that, in common with everybody else, such persons should be required to satisfy the criteria specified by s 94 in order to receive a community-based sentence rather than a further period of disqualification.
[14] It is clear from the Judge’s decision that he was greatly influenced by the fact that Ms K had chosen to drive just ten days after she had been disqualified from driving for a period of six months. It is no surprise that this factor weighed heavily with the Judge. It clearly called into question Ms K ’ respect for the orders of the Court. Those who blatantly flout the Court’s orders cannot expect a particularly sympathetic response when they later seek the Court’s assistance in dealing with the foreseeable consequences of their acts.
[15] The Judge was also clearly concerned with the public interest element inherent in the requirement that periods of disqualification be imposed on those who offend against the provisions of the Land Transport Act 1998.
[16] Both of those matters were relevant factors in terms of s 94(1)(b)(i), (ii) and
(iv), and the Judge was entitled to give them considerable weight.
[17] It is also clear that the Judge did have regard to the likely effect on Ms K of a further order of disqualification. That can be discerned from his comments at [25]. In the end, however, he obviously considered that this particular factor carried less weight than the other relevant factors that he had identified.
[18] It is not for this Court to say that the Judge placed undue weight on one relevant factor or that he should have placed greater weight on another. The weight to be placed on individual factors was a matter entirely for the Judge. Neither can it be said that the decision was plainly wrong. The decision that he reached was open to him on the facts of the case and in terms of the requirements of s 94.
[19] Although I, too, have considerable sympathy for the predicament in which Ms K now finds herself, I am unable to say that the Judge exercised his discretion against Ms K in an erroneous manner.
[20] The appeal is accordingly dismissed.
Lang J
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