Leask v Police
[2017] NZHC 2074
•29 August 2017
IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY
CRI-2017-406-000009 [2017] NZHC 2074
BETWEEN RAWIRI KERO BRIAN LEASK
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 29 August 2017 Counsel:
R M Gould for Appellant
J R Crawford for RespondentJudgment:
29 August 2017
JUDGMENT OF COLLINS J
Introduction
[1] On 17 July 2017, Judge Zohrab sentenced Mr Leask to 40 hours community work and six months’ disqualification from driving1 in relation to a charge of driving while disqualified.2
[2] The Judge declined Mr Leask’s application under s 94 of the Land Transport Act 1998 (the Act) to substitute the period of disqualification with a community- based sentence. Mr Leask appeals that aspect of the Judge’s decision.
[3] This judgment explains why I am dismissing Mr Leask’s appeal. I have done
so because Mr Leask has not demonstrated Judge Zohrab erred in any material way.3
In particular, the Judge did not make any error of law, or principle. Nor did he fail to
1 New Zealand Police v Leask [2017] NZDC 15837.
2 Land Transport Act 1998, s 32(1)(a) and (3). Maximum penalty three months’ imprisonment/$4,500 fine and the court must, subject to s 81 (which refers to s 94), order the person be disqualified from holding or obtaining a driver licence for six months or more.
3 Criminal Procedure Act 2011, s 250; Tutukangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].
LEASK v NEW ZEALAND POLICE [2017] NZHC 2074 [29 August 2017]
take into account relevant matters or take into account irrelevant matters. In
addition, the Judge’s decision was not plainly wrong.
Background
[4] On 27 March 2017, Mr Leask appeared in the Blenheim District Court where he was convicted of driving whilst his learner licence was suspended due to the number of demerit points he had accumulated. Mr Leask was disqualified from driving for six months.
[5] On 5 May 2017, the police located Mr Leask driving a vehicle at night in Picton. He admitted he was a disqualified driver but explained he was driving in order to ensure an intoxicated woman in the car got home safely. Mr Leask pleaded guilty to a charge of driving while disqualified on 15 May 2017.
[6] Mr Leask is 25 years old and lives in Picton. He is working in a vineyard in Blenheim and receives transport from a neighbour. Mr Leask’s neighbour does not however work every day and I am told public transport is limited. Mr Leask says he prefers to work in the furniture removal business where a current driving licence is considered essential. Mr Leask has other previous convictions for which he has been sentenced to community work. He has served those previous sentences without any difficulties being reported.
Section 94 of the Land Transport Act 1998
[7] Section 94 of the Act 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.
(3A) For the purposes of subsection (3)(a), the court may impose a sentence of supervision or intensive supervision as a community- based sentence if—
(a) that sentence is appropriate; and
(b) a suitable programme is available; and
(c) the offender attends a suitable programme.
…
[8] The jurisdiction to substitute a further period of disqualification with a community-based sentence was explained by Keane J in Maeva v Police, who said:4
Section 30AC of the Transport Act 1962, from which s 94 derives, was always understood to be “remedial”. It was to abstract recidivist disqualified drivers from an unending “wheel of offending”, where any further disqualification was likely only to engender further offending. It also came to be invoked when the offender could not obtain a limited licence.
Section 30AC, Hardie Boys J said in Mitchell v Police, marked “a clear shift in the emphasis of penal policy”. For until then, he said, “the emphasis was on insisting on compliance with Court orders and punishing those who flouted them in part with longer and longer terms of disqualification”. Police v Te Rupe is a not atypical instance. There the discretion was exercised where the offender had 15 convictions for disqualified driving within five years and three, or three more, were in issue. Originally there was even a question whether s 30AC could be invoked in the case of a disqualified driver who had only one previous conviction.
When s 94 was first introduced in 1998 it was more narrow than s 30AC. It then precluded anyone, like Mr Maeva, who had convictions for driving while disqualified, from seeking a substituted sentence. That, as Durie J said in Police v Edwards, emasculated the former s 30AC power as it had always been understood and applied.
That was remedied when s 94 was amended in 2005. Recidivist disqualified drivers like Mr Maeva became entitled once more to apply for a substituted sentence. The Select Committee confirmed that s 94 was to be amended to “extend its scope to include disqualified drivers who are caught in a cycle of disqualified driving but have no other recent convictions for serious road safety offences”.
(Footnotes omitted)
The District Court decision
[9] Judge Zohrab explained his approach to s 94 of the Act in the following manner:5
I have to determine whether or not a disqualification order would be inappropriate, having regard to the four matters set out in s 94(1)(b). These four matters all overlap to a considerable degree. It is a discretionary exercise. I need to consider each of these matters and weigh them up. None of them is decisive on their own, and they are all cumulative.
The four factors I need to consider are: (a) Your circumstances;
4 Maeva v Police HC Auckland CRI-2010-404-402, 11 March 2011 at [30]-[33].
5 New Zealand Police v Leask, above n 1, at [6]-[8].
(b) The effectiveness of any prior orders of disqualification;
(c) The effect on you of any further periods of disqualification; and
(d) The interests of the public.
I then also have to consider whether or not it would be appropriate to sentence you to a community-based sentence. There is nothing in your history which suggests that you are not suitable for a community-based sentence such as community work or the like, so that does not, then, need to trouble me.
[10] The Judge then analysed Mr Leask’s circumstances, including his work situation, the events surrounding his offending, and his previous convictions. The Judge summed up the reasons for his decision by saying:6
I appreciate that a further disqualification would be difficult for you, but I am not persuaded that it is appropriate to employ s 94 in the circumstances of this case. There were other people in the vehicle, there were other steps that could have been taken. You took the chance, as it were.
You are in current employment. There are other ways of getting to your employment. The fact that you would like to work in the furniture removal area, in my view, that is creditable, but that is something that is going to have to await your seeing out of the minimum period of disqualification.
In my view, it is in everybody’s interests that people observe disqualification orders when they are made. And in my view, weighing up all of the factors in this case, it is not in the interests of the public for you not to be disqualified. In my view it is entirely appropriate that there be the mandatory disqualification.
Grounds of appeal
[11] In her helpful and comprehensive submissions, Ms Gould acknowledged the challenges of appealing a decision that involves the exercise of judicial discretion.
[12] The grounds of appeal can be distilled to the following three points: (1) The Judge erred in law by misquoting the relevant legislation.
(2)The Judge failed to take into account a relevant matter that would support the application, and possibly took into account an irrelevant
matter.
6 New Zealand Police v Leask, above n 1, at [16]-[18].
(3)The Judge failed to take into account recent case law that supported the s 94 application.
Analysis
Error of law
[13] In his summary of the four requirements in s 94(1)(b) of the Act the Judge,
omitted the words “or otherwise” that can be found in s 94(1)(b)(ii) of the Act.
[14] Whilst this was an oversight by the Judge, it was not a material error. An examination of the Judge’s sentencing notes shows that he did undertake an assessment of the effectiveness, (or otherwise) of previous disqualification orders in relation to Mr Leask. In paragraph [15] of his sentencing notes, Judge Zohrab referred specifically to the previous suspensions of Mr Leask’s learner licence due to demerit points, his subsequent driving while suspended charge, and the fact that he had been caught driving while disqualified soon after that disqualification took effect.
[15] At the very least, it is apparent that Judge Zohrab implicitly considered whether or not the previous order of disqualification had proved effective, thereby ensuring he had proper regard to the requirements of s 94(1)(b)(ii) of the Act.
Did the Judge fail to take into account relevant matters, or take into account irrelevant matters?
[16] Ms Gould’s submissions refer to a number of matters that it is suggested supported Mr Leask’s application under s 94 of the Act. Those matters include:
(1) Mr Leask’s limited history of criminal offending.
(2)Mr Leask’s apparent ability to comply with community work sentences.
(3)The extenuating circumstances associated with his offending, including the fact that Mr Leask had not been drinking prior to driving whilst disqualified.
(4) The desire to keep Mr Leask in employment.
[17] An examination of Judge Zohrab’s sentencing notes reveals that he did take all of these factors into account and specifically referred to them during the course of his decision. In these circumstances, I cannot accept that Judge Zohrab failed to take into account any relevant matter.
[18] Ms Gould also suggested that Judge Zohrab may have erred by taking into account an irrelevant matter namely, that there were options available to Mr Leask other than to drive on the night in question. The evidence concerning the reasons why Mr Leask thought he needed to drive on the night of his offending is vague. On the basis of the material before me I do not think Judge Zohrab can be criticised for saying there was no necessity for Mr Leask to drive on the night of 5 May 2017.
Did the Judge fail to take into account relevant case law?
[19] Ms Gould placed considerable reliance on the decision of Ellis J in Hoffman v Police,7 a case in which she had successfully appealed a decision of a District Court Judge who had not granted Mr Hoffman’s application under s 94 of the Act.
[20] Mr Hoffman’s case is readily distinguishable from Mr Leask’s circumstances.
In particular:
(1)Mr Hoffman was a recidivist driver, who had four previous driving whilst disqualified convictions. Unlike Mr Leask, Mr Hoffman was
locked in the “unending wheel of offending”.8
7 Hoffman v Police [2017] NZHC 1313.
8 Maeva v Police, above n 4, at [30].
(2)The appeal was allowed in part because the sentencing Judge treated the apparent ineffectiveness of previous disqualifications as counting against a s 94 application.
[21] While it is not necessary for a defendant to be locked in the “unending wheel of offending” before s 94 is engaged, Mr Leask has only, on one occasion, been convicted of driving while disqualified following a previous Court order. Judge Zohrab was right when he, in effect, concluded that a period of disqualification may prove to be an effective deterrent for Mr Leask.
Conclusion
[22] I have carefully evaluated whether or not there is any basis upon which I could interfere with the way in which Judge Zohrab exercised his discretion. I can find no basis for doing so. I am also satisfied, that the decision made by Judge Zohrab was appropriate in the circumstances of this case. It is a case in which I would have dismissed the appeal had I applied the principles that govern a general
appeal.9
D B Collins J
Solicitors:
Crown Solicitor, Nelson for Respondent
9 Austin Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
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