Laracy v Police

[2016] NZHC 2615

IN THE HIG H COURT O F NEW ZEALAND WELLINGTON REG ISTRY

CRI-2016-485-71 [2016] NZHC 2615

BETWEEN

JOSIAH LEE LARACY

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	1 November 2016
Counsel:	C W Ross for Appellant C M Gisler for Respondent
Judgment:	1 November 2016

JUDGMENT O F WILLIAMS J

Introduction

[1]      Mr Laracy is 23 years old.  He pleaded guilty to a single charge of driving while disqualified. This is his second such conviction.

[2]      His counsel made an application under s 94 of the Land Transport Act 1998 to substitute a further period of disqualification with a sentence of communi ty work. The application was granted.  He was sentenced by Judge Johnston in Wellington to

350 hours’ communi ty work. 1

[3]      He now appeals that sentence as manifestl y excessive.

[4]      The parties are agreed the sentence imposed was manifestl y excessive.

1       Police v Laracy [2016] NZDC 17206.

LARACY v NEW ZEALAND POLICE [2016] NZHC 2615 [1 November 2016]

[5]      On 20  November 2015,  Mr Laracy was convicted of driving with excess breath alcohol.    He  was  disqualified  from driving  for  six  months  (the  original disqualification).  He also had to pay a fine of $550.  The offence was committed two days earlier.

[6]      On 25 Februar y 2016, Mr Laracy drove while disqualified.  He was convicted on that charge o n 11 March 2016.   He was sentenced to a further disqualification period of six months, starti ng from 21 May 2016 (the second disqualification) to allow for the original disqualification period to run its course.   He was also fined

$300 and directed to pay court costs of $130.

[7]      On 11  May 2016 (that is still within the first six months disqualific ation period),  Mr  Laracy  was  stopped  by  police  while  driving  down  Buckle  St  i n Wellington.  He was charged with a second count of driving w hile disqualified.

[8]      On 10 August 2016, Judge Johnson sentenced hi m on the 11 May charge (set out below).  This is the decision he appeals.

[9]      Mr Laracy has no other convictions.

District Court sentencing

[10]     In his sentencing remarks, the Judge noted the police were neutral in their stance  to  Mr  Laracy’s  s 94  application  to  i mpose  a  communi ty-based  sentence instead of a further period of disqualification.   The Judge concl uded  Mr  Laracy would benefit from a community-based sentence.

[11]     On the charge of driving while disqualified, the Judge sentenced Mr Laracy to  150 hours’  community  work.    In  lieu  of  the  otherwise  mandator y  period  of disqualification, Mr Laracy was “convicted and sentenced to an additional 200 hours of communi ty work”.  This gave a total of 350 hours’ community work.

[12]     Section 94 of the Land Transport Act 1998 materially states:

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.

Submissions

[13]     Mr  Ross,  for  Mr  Laracy,  submi ts  that  while  a  communi ty  sentence  is appropriate, the number of hours was manifestl y excessive.  The Judge di d not take into account the overall gravity of the offending, which was low.  The two previous sentences of disqualification were within close proxi mity to each other.  Generally, it is rare for sentences of more than 200 hours’ community work to be imposed for such cases.

[14]     Mr Laracy is a full-time student and needs to work during holiday breaks.  A sentence of 350 hours amounts to ni ne weeks full -ti me, which will have an i mpact on hi m bei ng able to fund his studies.  Mr Ross asks for a sentence of 100 to 15 0 hours to be i mposed.

[15]     The  Crown  notes  there  are  not  many  cases  concer ning  the  quantum of community wor k to be i mposed under s 94.  The Crown accepts that a conclusion that the quantum of community work was excessive here is available to me on these facts.   The Crown does not propose a number, but notes that the sentence should reflect that all convictions occurred within a six month period and the last occurred when deliberately tr ying to avoid a police checkpoint.

Analysis

[16]     The Judge i mposed two sentences of community work, one for the charge i n front of hi m, driving w hile disqualified, and one instead of the disqualification.

[17]     It is not strictly erroneous to impose both a sentence on the actual charge and then in a second stage communi ty work i n lieu of disqualification.  The wording of s 94(3)(b) permits it without requiring such an approach:

the imposition of [community work] 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[.]

[18]     It does seem nonetheless to be the usual practice to impose a singl e sentence of community work for both the offence and i n lieu of disqualification.   See for example Whyman v Police2  where the District Court had i mposed a sentence of 80 hours’ communi ty work for the offence and disqualification of a year.  On appeal, Lang J quashed both the disqualification order and the origi nal communi ty work and imposed a single sentence of communi ty work of 200 hours.3

[19]     In any event, however it is constructed the number of hours imposed in this case was manifestly excessive.  The appellant gives examples of appeals to the High Cour t to demonstrate this:

(a)      Whyman, w here 200 hours were imposed, in the context w here the appellant had signi ficant speeding traffic infringement histor y;

(b)      Skelton  v  Police,4   where  80  hours  were  imposed  for  a  third  and subsequent driving while suspended.

(c)      Maeva  v  Police5,  where  140  hours  were  imposed  for  a  third conviction of driving while disqualified; and

[20]     There are other examples from High Court appeals:

(a)      Tuhi  v  Police,6   where  80  hours  were  imposed  for  driving  while suspended, third or subsequent.   Ms Tuhi had eight previous si milar convictions, but there were compelling personal circumstances and

she had taken steps to gai n her license.

2       Whyman v Police [2014] NZHC 2889.

3      Maeva v Police HC Auckland CRI-2010-404-402, 11 March 2011, the Judge did at [39] express the final sentence  as being broken down by 80 hours for the offence  and 60 hours for the disqualification, but imposed only one sentence of community work.

4       Skelton v Police [2015] NZHC 1735.

5       Maeva, above n 3.

6       Tuhi v Police [2015] NZHC 516.

(b)      Witana v Police,7 where 150 hours were imposed.  The appellant had repeatedly breached the disqualification within a short period.   This case is probably most analogous to the present facts.

[21]     The usual range on the cases seems to be around 80-150 hours.  In my view, in light of Witana, a sentence of 150 hours total would be appropriate.

[22]     Both sentences are quashed and a single sentence of 150 hours communi ty work is substituted.

Williams J

Solicitors:

Public Defence Service, Wellington

Crown Solicitor ’s Office, Wellington

7       Witana v Police [2014] NZHC 1963.