Laird v Police

[2021] NZHC 2005

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2021-485-38

[2021] NZHC 2005

DAVIN PETER LAIRD

v

NEW ZEALAND POLICE

Hearing:	4 August 2021
Counsel:	L R Smith and Z S Meehan for Appellant A F Oliver for Respondent
Judgment:	4 August 2021

JUDGMENT OF CHURCHMAN J

Introduction

[1]    On 2 June 2021, Mr Laird (the appellant) was convicted and sentenced in the Hutt Valley District Court to 120 hours’ community work and disqualified from driving for 12 months after being charged with driving while suspended (third or subsequent).1 Mr Laird had advanced an application under s 94 of the Land Transport Act 1998 so as to have his disqualification from driving substituted with a community- based sentence. That application was declined by the District Court Judge.

[2]    Mr Laird now appeals that part of the sentence relating to the Judge’s decision to decline the s 94 application, on the basis that the Judge placed excessive weight on historic traffic infringement offences and their influence on the risk to public safety,

1      Police v Laird [2021] NZDC 12050.

LAIRD v NEW ZEALAND POLICE [2021] NZHC 2005 [4 August 2021]

and that the Judge failed to place sufficient weight on other relevant factors brought to his attention at sentencing.

[3]    Alongside this appeal, Mr Laird seeks leave to adduce fresh evidence in the form of an affidavit that responds to some of the concerns noted by the sentencing Judge.

[4]    The police do not oppose the inclusion of this fresh evidence, but they oppose the appeal, and submit that the Judge did not err in declining Mr Laird’s s 94 application. Mr Laird’s affidavit mainly details evidence already before the Court, such as his previous driving convictions, and the circumstances that led to his 28-day suspension in February 2021. However, the affidavit discusses those circumstances in more detail, and also includes evidence of remorse for his offending, and details his attendance at a defensive driving course. Given that the evidence seems credible and relatively fresh,2 and that the police are not opposed to its admission, I grant leave to adduce the affidavit.

[5]    For the reasons set out below, I have come to the conclusion that the appeal should be allowed. I consider that the Judge placed too much emphasis on Mr Laird’s historical driving offences and erred in doing so. In considering s 94 anew, application of the factors under s 94(1)(b) to the circumstances of this case indicate that it would be appropriate to substitute a sentence of disqualification with a community-based sentence, namely one of community work.

Background

Factual background

[6]    On 3 March 2021, Mr Laird (who at the time was employed as a truck driver) was driving a truck on State Highway One at Ōhakea. He was directed to stop at a weigh station, and during a routine inspection it was discovered that he was in fact subject to a 28-day suspension at the time. Mr Laird was charged with driving while suspended (third or subsequent) and was summonsed to appear at the Marton District

2      Lundy v R [2013] UKPC 28 at [120].

Court on 17 March 2021. Mr Laird plead guilty to this charge and transferred the matter to the Hutt Valley District Court, filing an s 94 application.

[7]    It is worth briefly noting the circumstances under which Mr Laird received a 28-day suspension from driving. On 27 February 2021, Mr Laird was stopped by police for exceeding the speed limit in an 100km/h zone by over 40km/h. He was issued an immediate 28-day suspension notice.

[8]    As explained in Mr Laird’s affidavit, on that day he had received a phone call from his partner concerning her son, explaining that he was having “an episode”, and expressing concern that he may attempt to commit suicide.   As a result of this,     Mr Laird drove from his address in Wainuiomata to his partner’s house in Otaki.   Mr Laird deposed that, because of slow traffic due to road works, he increased his speed while on the two-lane motorway to pass vehicles. At this point, he was pulled over by police and issued with the suspension notice.

District Court decision

[9]    The District Court Judge noted Mr Laird’s previous conviction history, including that he had six previous convictions for driving while disqualified. The Judge also observed that because of his recent offending (and previous conviction history), Waka Kotahi had imposed a  three-month  disqualification  in  respect  of Mr Laird’s heavy vehicle licences.

[10]   The Judge traversed Mr Laird’s demerit point history, which recorded some 14 to 15 demerit point speed-related infringements, spanning 30 years from January 1990 onwards, with his most recent demerits resulting from a speeding infringement in May 2020.

[11]   While acknowledging the circumstances in which Mr Laird received his 28-day suspension and the effect that disqualification would have on his employment, the Judge was not satisfied that in the interests of public safety, Mr Laird’s disqualification could be substituted with a community-based sentence. This was because the risk that Mr Laird presented to road users due to his sequential and

repetitive speeding, which could have dramatic or fatal consequences for himself or other road users.

[12]   Therefore, the Judge declined the s 94 application, and sentenced Mr Laird to 120 hours’ community work (including an impaired drivers’ course) and disqualified him from driving for 12 months (commencing from 2 June 2021).

Position of the parties

Mr Laird

[13]   The submissions of Ms Smith, counsel for Mr Laird, were premised on two key points. Firstly, that the District Court Judge erred in his analysis of the public safety risk involved, and secondly, that the Judge did not properly take into account Mr Laird’s circumstances, including the Mr Laird’s employment as a truck driver and the steps that he had taken toward achieving this employment, and the public interest in him maintaining this employment.

[14]   In setting out the relevant law, counsel noted that under s 94(1)(b) of the Land Transport Act, the Court must have regard to four factors in determining whether it was appropriate to sentence an offender to a community-based sentence. These are:

(a)the circumstances of the case and the offender. The ‘circumstances’ include a wide range of factors, and not only those directly to driving – family, attitude, age, criminal history and employment;3

(b)the effectiveness or otherwise of a previous order of disqualification made in respect of the offender. Counsel conceded that there was a judicial “division of opinion” within this factor – while some Judges have considered it to be counter-intuitive and rewarding recidivist offenders (while non-recidivist offenders have to suffer disqualification periods), other Judges recognise its remedial nature, as further disqualification would keep an offender within the wheel of offending;4

3      Poona v Police [2018] NZHC 791 at [30]; Araia v Police [2019] NZHC 3374 at [39]-[42].

4      Body v Police [2013] NZHC 1586.

(c)the likely effect on the offender of a further order of disqualification. Under this factor, the court should have regard to not only the offender’s history of complying with disqualification orders, but also their personal circumstances, such as if they would struggle to function and live their live without driving;5 and

(d)the interests of the public. This also encompasses a wide variety of matters, including the public interest in keeping offenders off the road, and ensuring that Court orders such as disqualifications are complied with. Here, counsel referred to Yu v Police, where Asher J acknowledged that in spite of the need to protect the interests of the public, retention of employment may constitute a sufficiently exceptional circumstance.

[15]   Counsel acknowledged that s 94 was enacted primarily for offenders stuck on the “wheel of offending”,6 but submitted that subsequent case law had recognised that its scope was wide-ranging, and that it could be applied to any person who had at least one previous disqualification provided that those mandatory factors under s 94(1)(b) were considered.7

[16]   Counsel then turned to the application of the four mandatory factors to this particular case, focusing especially on Mr Laird’s circumstances and his risk to public safety.

[17]   In terms of the circumstances of the offending, counsel acknowledged that Mr Laird has a long history of breaching road safety rules and convictions, but that his offending had considerably slowed in the past five years. Mr Laird had deposed in his affidavit that he had turned his life around in 2016 and began working towards gaining his truck licences, with his employment in the trucking industry acting as a pro-social factor in his life. Consequently, a disqualification of 12 months would effectively require Mr Laird to change his career again and would be detrimental to both his

5      Araia v Police, above n 3, at [54].

6      Maeva v Police HC Auckland CRI-2010-404-402, 11 March 2011.

7      Beeston v Police [2012] NZHC 1064.

employment record and earning potential. Although Mr Laird had managed to obtain alternative employment, it was an entry level role. His new employer had indicated that, with a driver’s licence, Mr Laird would be offered a driving role.

[18]   In terms of Mr Laird’s risk to public safety, counsel submitted that while it was conceded that he had “an unenviable history of speeding”, the Judge placed excessive weight on this history. In particular, his recent suspension due to speeding had a mitigating explanation behind it, and out of  the  15 speeding infringements  across 31 years of offending, the bulk of these occurred in a period between 1990 and 2006. Only three of these speeding infringements occurred in the past five years. The relatively small number of recent infringements, coupled with Mr Laird’s successful efforts in gaining different licences for his career, indicated, according to counsel, that Mr Laird had turned his life around, and was making an effort to driver in a safer and more responsible manner.

[19]   Since the offending had occurred, Mr Laird had completed a defensive driving course in Palmerston North. All of these factors illustrated that the recent efforts of Mr Laird, his recent offending notwithstanding, alleviated the public safety risk that he may pose due to his past history of infringements, and that therefore, it was in the public interest for Mr Laird to have continued employment as a truck driver.

The police

[20]   Ms Oliver, counsel for the police, acknowledged that the power to make an order under s 94 requires an exercise of the Court’s statutory discretion, and that s 94 was designed to deal with disqualified drivers who are caught in a cycle of disqualified driving but have no other recent convictions for serious road safety offences.8

[21]   In response to the first of the two grounds of appeal brought by Mr Laird,   Ms Oliver submitted that there was no evidence that the Judge had placed excessive weight on Mr Laird’s historic traffic infringements – according to counsel, the Judge carefully considered Mr Laird’s speeding history, including the length of time in which

8      Maeva v Police, above n 6 at [33].

the infringements had occurred, the historic nature of some of the infringements, and the date of the most recent infringement.

[22]   In terms of the second ground of appeal (namely that the Judge did not properly take into account Mr Laird’s circumstances), counsel submitted that the Judge clearly considered the steps that Mr Laird had taken in obtaining and maintaining his licences, and the driver safety training completed before and after the offending.

[23]   The Judge’s sentencing decision contained clear reference to Mr Laird obtaining one of these licences, and the positive impact of employment on his life, but that overall, the Judge considered the public safety risk presented by Mr Laird’s speeding history as overwhelming these positive factors.

[24]   Counsel then turned to an assessment of whether, if the sentencing Judge was in fact in error, the s 94 application should be granted anew. The police’s position was that it should not.

[25]   In terms of Mr Laird’s circumstances and the circumstances of his offending, regardless of any specific explanation for his suspension due to speeding in February 2021, it was submitted that Mr Laird had a significant number of demerit points over the last 30 years, including two in 2017 and 2020. His disregard for road rules was further demonstrated by his decision to drive subsequent to his 28-day suspension, which counsel submitted as indicating a willingness to breach road rules for personal benefit.

[26]   In terms of the effectiveness of a previous order of disqualification, counsel noted that Mr Laird had six previous convictions for driving while disqualified, (two in 2008, two in 2007, and two in 1997). Therefore, the lack of recent convictions subsequent to 2008 should indicate to the Court that an order of disqualification would be effective in respect of Mr Laird, and that there was no evidence of a consistent pattern of driving while disqualified, meaning that he was not in the cycle of offending that s 94 was intended to address.

[27]   In terms of the effect on Mr Laird as a result of disqualification, counsel noted that Mr Laird had already been able to obtain employment in another job, and that at the time of sentencing, Waka Kotahi had disqualified Mr Laird from driving for three months due to his speeding history, meaning that he would not be able to immediately resume work as a truck driver. It was also submitted that there was less force in counsel for Mr Laird’s argument that his employment as a truck driver was a pro-social factor which contributed to his decline in offending, as it was clear that his offending was already declining prior to obtaining his licence in 2016 given that between 2011 and 2016 Mr Laird only received three convictions.

[28]   Finally, counsel submitted that there was a strong public interest in disqualification, given that Mr Laird presented a significant safety risk by reason of his consistent behaviour of speeding, which was particularly concerning given his employment as a driver of a heavy vehicle.

Approach to appeal

[29]   Because s 94 involves the exercise of a statutory discretion, this Court has limited jurisdiction on appeal, pursuant to s 250 of the Criminal Procedure Act 2011. I may only intervene if Mr Laird can demonstrate to me that the sentencing Judge erred in principle in exercising his decision by failing to take into account a material consideration, taking into account an irrelevant consideration, or was plainly wrong, and therefore, a different sentence should have been imposed.9

Relevant law and analysis

[30]   Section 94 comprises of a three-step test. Firstly, the offender must have previously been ordered on conviction for an offence to be disqualified from holding or obtaining a driver licence. Mr Laird falls within this description, as he was last disqualified from driving in 2008.

[31]   Secondly, the Court must consider the four mandatory factors under s 94(1)(b) and determine whether disqualification is inappropriate.

9      Bluegum v New Zealand Police [2021] NZHC 1284; Poona v Police, above n 3 at [14].

[32]   Thirdly, if satisfied that disqualification is inappropriate, the Court must consider whether it is appropriate to sentence the offender to a community-based sentence in accordance with the Sentencing Act 2002.

[33]   The first question here is whether the Judge erred in applying the four mandatory factors under s 94(1)(b), and if so, whether under a fresh consideration of those factors, disqualification is inappropriate.

[34]   I agree with counsel for Mr Laird that in determining that he posed too great a risk to the public to be allowed to drive, the Judge placed too much emphasis on    Mr Laird’s history of offending. As both counsel acknowledged, Mr Laird’s offending history has decreased considerably in the last decade, and in the past five years he has only had three speeding infringements. The vast majority of Mr Laird’s convictions and infringements occurred in the 1990s and 2000s, stretching back some 31 years. Obviously Mr Laird’s lengthy history of breaching road laws is concerning, and a relevant factor to consider when assessing whether he would be too much of a risk to public safety to be allowed to drive. However, the significant period of time between what appears to be a consistent cycle of driving-based offences, and Mr Laird’s current circumstances over the past five to ten years (where there are comparatively few driving infringements) ought to have been given greater weight by the Judge in his assessment. I am not convinced that Mr Laird’s more recent offending can fairly be described as sequential and repetitive, particularly taking into account the reasons behind Mr Laird’s last suspension

[35]   I therefore consider that the Judge erred in placing too  much  emphasis on Mr Laird’s historic offending when assessing the factors under s 94(1)(b).

[36]   The next question is given that the Judge erred in taking this into consideration, whether under the s 94(1)(b) factors, it would be inappropriate to disqualify Mr Laird, and in particular, whether he should avoid disqualification when he appears to have moved away from the repeated cycle of offending that s 94 as a remedial provision is intended to apply to?

[37]   The first factor is Mr Laird’s circumstances, and the circumstances of his offending. The nature and gravity of the offending are of importance in this analysis (in particular, whether the safety of any other person was endangered), as well as broader factors, such as the prospective inability to obtain suitable employment utilising the skills and qualifications he has gained through loss of the ability to drive.10 Here, the offending did not endanger others, as Mr Laird’s disqualification resulted from him pulling over at a weigh station at Ōhakea, and his offending within the past five years, while still obviously worth of condemnation, could not be classified as being extremely serious. In terms of Mr Laird’s own personal circumstances, there are (as noted by his counsel) several promising factors, including the significant drop- off in his cycle of offending, and his achievement in gaining a number of different licences and employment as a truck driver.

[38]   Under the second element (the effectiveness or otherwise of a previous order of disqualification), Mr Laird has driven while disqualified before, and has been charged with doing so twice in 2008, twice in 2006, and twice in 1997. It therefore can be concluded that while a disqualification order would have less of an effect (and less likely to be adhered to) if Mr Laird’s pattern of offending from the 1990s and 2000s had continued, the significant decline in his offending and speeding infringements, coupled with his current employment situation, give some cause for optimism as to his future conduct.

[39]   In terms of the third element (the likely effect on the offender of a further order of disqualification), it is apparent that a further order of disqualification will have a significant effect on Mr Laird. While he appears to already be two months into a three- month disqualification from Waka Kotahi, a 12-month disqualification would delay the opportunity for him to obtain more meaningful employment than he presently has.

[40]   Finally, in terms of the fourth element (the interests of the public) it is important to note that s 94 is not only restricted to those who are caught within the “wheel of offending”.  It has a wide application, and is capable of applying to any offender who

10     Andrew Becroft and Geoff Hall (eds) Becroft and Hall’s Transport Law (online ed, LexisNexis) at LTA94.7.

has at least one disqualification, unless s 94(4) applies.11 Notably in Nicholson v Police, Gault J observed that, according to case law, substitution under s 94 is available not only in cases where it is appropriate to break a cycle of recidivism but also where the interests of the offender and the public are otherwise better served by a community- based sentence, for example, to avoid loss of employment or other particular hardship.12

[41]   Several of the more recent decisions in this line of case law are analogous to Mr Laird’s circumstances. In Hoffman v Police, the offender’s licence had been suspended because of demerit points, and then he had been caught driving while suspended.13 Because of the disqualification, he had been unable to sit his restricted licence test arranged by Work and Income New Zealand. Ellis J held that there did not need to be a real risk that the person concerned would lose their job as a result of losing their licence – the effect of disqualification on an offender’s job prospects may 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 Ellis J found that as the appellant had no convictions other than for driving offences, and as being able to drive was required for getting him back into employment, the period of disqualification should be quashed.15

[42]   In Timbrell v Police, Courtney J considered that the long gap in the appellant’s offending, the fact that the offending did not involve bad driving or a danger to the public and the public interest that was served in keeping someone in employment were all relevant factors in justifying a substitution from disqualification to a community- based sentence.16

[43]   Finally, in Burgess v Police, Dunningham J concluded that the interests of the public were better achieved by the appellant, who had been unemployed for some

11 Beeston v Police [2012] NZHC 1064 at [24].

12  Nicholson v Police [2021] NZHC 960 at [18], citing Yu  v Police HC Auckland CRI-2006-404-  273, 10 November 2006, at [7]–[8]; Wadsworth v Police [2014] NZHC 3302 at [18]; Skelton v Police [2015] NZHC 1735.

13 Hoffman v Police [2017] NZHC 1313.

14 At [13].
15 At [17]-[20].

16 Timbrell v Police [2018] NZHC 2397 at [18].

time, obtaining full-time work and developing pro-social tendencies by being able to drive.17

[44]   In my view, Mr Laird’s case is similar to those just discussed. His offending that caused the disqualification was of a lower scale, and there is a pro-social benefit in encouraging Mr Laird to avoid a cycle of offending by giving him an opportunity to get back into a job which utilises his skills and qualifications. These factors, combined with the fact that Mr Laird’s offending has significantly decreased in the last decade, indicate that it would be inappropriate to order that Mr Laird be disqualified from driving.

[45]   The ordinary sentence where the court does exercise its discretion to substitute a community-based sentence under s 94 is one of community work. In Bartram v Police, Cooke J surveyed the relevant case law on the appropriate length of community work when s 94 had been successfully applied and noted that that there is a general starting point of an additional 20 to 40 hours' community work in lieu of a six-month disqualification period.18

[46]   In response to questions as to what a suitable additional amount of community work might be in lieu of disqualification, Ms Smith submits that something between 40 and 60 hours would be appropriate. Ms Oliver suggested 60-70 hours.

[47]   While there appears to be some inconsistency in the number of community work hours imposed by the Court under s 94, a relatively similar case cited in Bartram is Whyman v Police, where the defendant was originally sentenced to disqualification from driving for one year, and 80 hours’ community work, but this was substituted on appeal (as s 94 was successfully applied) with 200 hours’ community work.19 Taking into account Cooke J’s observation that 20 to 40 hours' community work is a good general starting point in substitution of six months’ disqualification (and that therefore twice that amount for a year’s disqualification would be 40 to 80 hours’ community work), and balancing it with the higher number in Whyman (although the appellant’s

17     Burgess v Police [2021] NZHC 362.

18     Bartram v Police [2019] NZHC 90 at [17].

19     Whyman v Police [2014] NZHC 2889.

recent offending in that case was more serious than Mr Laird’s offending), I consider that an additional 70 hours of community work, making a total of 190 hours’ community work (together with a requirement to complete an impaired drivers’ course), to be appropriate here.

Result

[48]   For these reasons, the appeal is allowed. Pursuant to s 94, the sentence of disqualification from driving for one year is quashed and, in lieu of disqualification, a sentence of 70 hours’ community work is substituted. The final sentence is therefore 190 hours’ community work (including an impaired drivers’ course) remains.

Churchman J

Solicitors:

Public Defence Service, Wellington Crown Solicitor, Wellington