Lawrence v Police
[2013] NZHC 197
•14 February 2013
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
CRI 2012-443-2214 [2013] NZHC 197
BETWEEN KURT WILLIAM LAWRENCE Appellant
ANDTHE POLICE Respondent
Hearing: 11 February 2013
Appearances: J Hannam for appellant
J Mooney for respondent
Judgment: 14 February 2013
JUDGMENT OF ALLAN J
In accordance with r 11.5 I direct that the Registrar endorse this judgment with the delivery time of 2.30 pm on Thursday 14 February 2013
Solicitors:
Hannam & Co, New Plymouth [email protected]
C&M Legal, [email protected]
LAWRENCE V THE POLICE HC NWP CRI 2012-443-2214 [14 February 2013]
Introduction
[1] Mr Lawrence appeals against a sentence of six months imprisonment imposed by Judge Roberts in the New Plymouth District Court on 6 December 2012, on one charge of driving while suspended. A concurrent sentence of two months imprisonment was imposed on a second identical charge arising from an earlier incident.1
[2] Mr Hannam argues that, had these been two cases of driving while disqualified, the sentence would have been unchallengeable. But because these were offences of driving while suspended, the sentence of six months imprisonment was manifestly excessive, he submits.
Factual background
[3] Between 2007 and 2010, the appellant had been convicted of driving while disqualified (one offence), and driving while his licence was suspended (two offences).
[4] On 31 July 2012, he was suspended from driving for a period of three months as the result of an accumulation of demerit points. That period of suspension ended on 30 October 2012.
[5] On 14 August 2012, the appellant drove a motor vehicle on Leach Street, New Plymouth. He was stopped by police for a random licence and safety check. Initially he gave false details as to his identity but inquiries made by the police soon revealed his true identity.
[6] Having appeared in the District Court he was remanded for sentence on
28 November 2012. On 8 November 2012, his period of suspension was extended to
7 February 2013, because he had accumulated further demerit points.
1 Police v Lawrence DC New Plymouth CRI-2012-043-2214, 6 December 2012.
[7] On 27 November 2012, the day before his scheduled appearance for sentence on the 14 August charge, the appellant drove a motor car on Gover Street, New Plymouth. Again he denied his identity; again police checks revealed who he was.
District Court decision
[8] Judge Roberts said that the first of the two offences in time, being the appellant’s fourth offence of driving while suspended or disqualified, may have merited a sentence falling just short of imprisonment, but the second, committed while the appellant was awaiting sentence for the earlier offence, had to result in a sentence of imprisonment. That subsequent act of driving while suspended, was as the Judge saw it:
…the ultimate act of contempt.
[9] He went on:
I do not consider the other penalties serve as a true deterrent and, after all, nothing thus far has served to have you modify your behaviour.
[10] Ultimately, the appellant was sentenced to six months imprisonment on the second of the two offences, and two months concurrent on the first. The Judge imposed a concurrent period of further disqualification of 12 months.
The appellant’s argument
[11] Mr Hannam accepts that the sentences imposed by the Judge would have been within the available range had the appellant driven while disqualified. But the Judge had failed to distinguish between driving while disqualified on the one hand, and driving while suspended on the other. All but one of the appellant’s previous offences involved driving while suspended. Mr Hannam argues that the offence of driving while suspended is inherently less serious than driving while disqualified, because the former involves a breach of a mere administrative direction, while the latter breaches an order imposed by the Court. The level of contempt for authority is therefore so much the greater.
[12] It follows, Mr Hannam argues, that sentences for driving while suspended ought to be generally lower than those for driving while disqualified. He accepts that there is no authority to support his argument, which he frankly concedes is both novel and radical.
Discussion
[13] Section 32(1) of the Land Transport Act 1998 (the Act) provides:
32 Contravention of section 5(1)(c)
(1) A person commits an offence if the person drives a motor vehicle on a road—
(a) While disqualified from holding or obtaining a driver licence; or
(b) Contrary to an alcohol interlock licence, a zero alcohol licence, or a limited licence; or
(c) While his or her driver licence is suspended or revoked.
[14] Section 32(4) provides:
(4) If a person commits a third or subsequent offence against subsection (1) (whether or not of the same kind of offence as the previous offences), the person commits an indictable offence and on conviction—
(a) The maximum penalty is imprisonment for a term not exceeding 2 years or a fine not exceeding $6,000; and
(b) The court must order the person to be disqualified from holding or obtaining a driver licence for one year or more.
[15] Section 32 does not distinguish between offences of driving while disqualified or driving while the relevant licence is suspended. In particular, it is to be noted that the maximum penalty prescribed by s 32(4) is the same for all of the offences created by s 32(1). It is to be inferred that the Legislature regards each of the separate offences in s 32(1) as of substantially the same gravity; if it considered otherwise, then in my view different penalties would have been prescribed for the different offences. It is plain that the legislative purpose was to equip the Courts with appropriate powers to deal with drivers who failed to comply with the terms
upon which driver licences are issued. The more serious breaches of the traffic laws come before the District Court where Judges are empowered (and in some cases required) to impose periods of disqualification upon conviction. Less serious offences attract demerit points. When 100 or more demerit points are accumulated, the Land Transport Agency is required to give notice to the person concerned that his or her driver licence is suspended for a period of three months or in certain cases for longer. That obligation is imposed by s 90 of the Act, which provides:
90Suspension of licence or disqualification from driving under demerit points system
(1) If, in any 2-year period, a person has accumulated a total of 100 or more demerit points, the Agency must give notice in writing advising the person that—
(a) the person has accumulated 100 or more demerit points; and
(b) the penalty specified in subsection (3) or (5) has been imposed and takes effect immediately.
(2) The notice given under subsection (1) may be served by—
(a) the Agency; or
(b) a person approved for the purpose by the Agency; or
(c) an enforcement officer.
(3) If the person holds a current driver licence, the effect of a notice given under subsection (1) is that the licence—
(a) is suspended for a period of 3 months or, if longer than 3 months, the period calculated under section 90A; and
(b) remains of no effect when the period of suspension ends until the person applies to the Agency to have the licence reinstated and the Agency reinstates the licence.
(4) A person whose driver licence has been suspended under subsection (3) may not hold or obtain a driver licence while the suspension is in force.
(5) If the person does not hold a current driver licence, the person is disqualified from holding or obtaining a driver licence for a period of 3 months or, if longer than 3 months, the period calculated under section 90A.
(6) A suspension or disqualification under this section begins on the date specified in the notice, which may not be earlier than the date on which the notice is served on the person.
[16] A person whose driver licence has been suspended under subs (3) may not hold or obtain a driver licence while the suspension is in force.2 But if the person concerned does not hold a current licence, he or she is disqualified from holding or obtaining a driver licence for a period of three months, or longer in certain cases.3
The result is that, although an offender who has a driver licence suffers the suspension of that licence, an offender who has no licence is disqualified from driving for a stipulated period. In other words, the Legislature, regards the terms “suspension” and “disqualification” as having equivalent effect. The expressions “disqualified” and “disqualification” were presumably used because in the case of a driver without a licence it would be a contradiction in terms to suspend that which does not exist.
[17] In my opinion it cannot be right to distinguish for sentencing purposes between an offender who has driven while disqualified and one who has driven while his or her licence is suspended. Disqualifications arise by order of the court or by notice to a driver who has accumulated sufficient demerit points but has no licence. Suspensions arise where a driver with a licence has accumulated sufficient demerit points. There is no need, as a matter of public policy, or in order to preserve the dignity of the Court process, to confer upon disqualifications more serious consequences than suspensions imposed by administrative notice. In each case, the Legislature has determined that the maximum penalty for breach is the same.
[18] Interestingly, Asher J recently examined the similarities and differences between disqualifications and suspensions in a judgment on appeal from the District Court, in which the learned District Court Judge had held that the prohibition on granting a limited licence in s 103 of the Act applied both to persons driving while disqualified and to those driving while suspended.
[19] Section 103 specifically excluded from the ambit of the Court’s power to
grant limited licences, those who were disqualified from holding a driving licence by
an order made on conviction for an offence against s 32(1). There is no similar reference in respect of a person whose licence was suspended. Asher J upheld the District Court decision, holding that a purposive interpretation of s 103 was required and that the Legislature plainly intended that suspended drivers would not be entitled to apply for a limited licence.4
[20] Asher J said:
[21] Mr Clee argued that there was a logical basis for distinguishing between suspended drivers and disqualified drivers. I accept Mr Clee’s submission that there is a distinction between disqualification and suspension. Suspension is a penalty involving no exercise of judicial power. As was stated by Miller J in Keleher v New Zealand Police: 5
There is no proceeding. The necessary steps are administrative in nature. The Director, who has no discretion in the matter, writes to the person concerned advising that his or her licence has been suspended by operation of s.90.
[22] I accept also that a distinction is made in s 129 of the Sentencing Act
2002 in relation to confiscation of a motor vehicle between ss 32(1)(a) or (b) and 32(1)(c). There is no confiscation in relation to a person who commits an offence under s 32(1)(c) (although this may have been because the Sentencing Act was enacted before the 2005 amendment).
[23] However, the penalties for both driving while disqualified and driving while suspended are the same. There is no obvious reason why the difference in the process leading up to disqualification from that leading up to suspension should lead to a difference in the ability to get a limited licence. There is nothing in the long title or elsewhere in the Act to indicate that a distinction should be made. There is no obvious reason why the legislature would have sought to distinguish between disqualification and suspension for limited licence purposes, and it did not do so prior to 2005. If it had been intended to make the distinction, it could have been expected that this would have been done so explicitly. Thus, a purposive of interpretation does not lead to the result sought by Mr Clee.
[21] I am unable to discern any logical basis upon which it would be proper to distinguish for sentencing purposes between an offence of driving while disqualified on the one hand from an offence of driving while suspended on the other. In each case, the driver concerned has forfeited the privilege of holding a valid and current driver licence by breaching one or more of the many obligations placed upon drivers
on our roads. It matters not whether the loss of licence has arisen by reason of an accumulation of demerit points for a series of minor infringements, or from a disqualification imposed by a Judge for more serious offending.
[22] The demerit point system is an administrative convenience designed to relieve the Courts of the burden of dealing with relatively minor offending. In earlier times, the District Court was obliged to deal with cases such as speeding offences which now fall within the demerit point system. But the suspension of a driver licence is not to be treated as some sort of Clayton’s disqualification and relegated in importance and gravity to disqualifications resulting from Court orders. The scheme of the Act demonstrates that.
[23] The universal judicial approach is to treat offences of driving while disqualified on the one hand, and of driving while suspended on the other, as of equivalent gravity. I see no reason to depart from that approach.
Result
[24] For the foregoing reasons I reject Mr Hannam’s argument that Judge Roberts ought to have treated Mr Lawrence more leniently because he had driven while his licence was suspended, and was not a disqualified driver.
[25] The appeal is accordingly dismissed.
C J Allan J
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