Marlborough Lines Ltd v The Takeovers Panel HC Auckland Civ-2010-485-1150

[2011] NZHC 199

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2010-404-402

TEARIKI BENSON MAEVA

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         8 February 2011

Appearances: V Letele for Appellant

Z H Johnston & H W Y Yiu for Respondent

Judgment:      11 March 2011

JUDGMENT OF KEANE J

This judgment was delivered by Justice Keane on 11 March 2011 at 2pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Date:

Solicitors:

Crown Solicitor, Auckland

Copy to:

V Letele; [email protected]

TEARIKI BENSON MAEVA V NEW ZEALAND POLICE HC AK CRI 2010-404-402 11 March 2011

[1]      On 26 October 2010 Teariki Maeva, aged 24, on his plea of guilty in the District Court, Manukau, was convicted of and sentenced for driving while disqualified on 9 August 2010; his third conviction for that offence.

[2]      Judge Andree Wiltens sentenced him to 200 hours community work.  He disqualified Mr Maeva for nine months to commence on 11 April 2011, the date on which  his  present  term  expires,  declining  to  impose  instead  of  disqualification further community work. Mr Maeva, he said, had chosen to drive. He had driven while disqualified twice before. He could be anticipated to do so again. The effect on him of further disqualification was not undue. The public interest required that Mr Maeva be treated like everybody else. No special circumstance existed.

[3]      On this appeal Mr Maeva first contends that the sentence of community work was manifestly excessive, even for a third offence, more especially when he had only been charged with a first or second offence, and the higher maxima did not apply. Secondly, Mr Maeva contends, and this is the principal point of his appeal, the Judge erred in not imposing community work, under s 94 of the Land Transport Act 1998, instead of further disqualifying him.

[4]      The Judge, Mr Maeva contends, exercised that discretion contrary to the purpose of s 94: to abstract an offender from re-offending by driving while disqualified. The Judge also imposed a threshold not found in s 94, the need for some special distinguishing feature.

Context

[5]      According to the statement of facts on sentence, as to which there was no issue, Mr Maeva was stopped in Mangere at 4.40 pm on 9 August 2010. No reason is given as to why he was stopped. Inquiries revealed that he was disqualified. He admitted to that and said he was taking his daughter to her mother. At that time, as the summary noted, he was living in Ellerslie.

[6]      Also material was that Mr Maeva had two previous related convictions in

2010; one for driving in January while his licence was suspended, for which he was

fined $250 and disqualified for six months; the second in June for driving while disqualified, for which he was disqualified for a further six months. That was to end on 11 April 2011 and, as materially, Mr Maeva applied to be excused from being disqualified further. He sought to be sentenced instead to further community work.

[7]      In a brief affidavit, Mr Maeva explained that, aged 24, he is a solo parent caring for two children by different mothers, a son aged five and a daughter aged two. In December 2009 he had ceased work so that he could look after them. He had moved from Mangere to Ellerslie. To travel between the two he had needed to be able to drive. In her supporting memorandum Ms Latele, Mr Maeva's counsel, gave greater detail.

[8]      Mr Maeva, she said, had been caring for his son for a year. The mother had moved to the central city to work. His daughter had been with him for six - seven months. Once again, that child's mother had passed responsibility to him. In December 2009, to devote himself to the children, he had ceased work in Mangere and moved to Ellerslie, believing that to be better for them. He had returned to his mother in Mangere in August 2010 only because his grandfather was unwell. His son was attending school there but Mr Maeva wished to return to Ellerslie.

[9]      Mr Maeva had driven on this last occasion, his counsel said, to take his daughter to her mother He had not driven carelessly or been intoxicated. There had been no danger to the safety of the public. Also, she said, he wished to be able to regain employment. She was not specific as to when, where or with whom. (She told me on this appeal that he has the prospect of shift work at Auckland Airport for which he will require the ability to drive.)

[10]     The police accepted that s 94 confers a discretion to impose a community based sentence instead of disqualifying further where disqualification would be futile and counter-productive. They opposed community work being substituted in Mr Maeva's case. Disqualification, they said, is the normative sentence. A substituted community based sentence is reserved for the exceptional case.

[11]     Mr Maeva, the police said, had two such previous convictions and there was nothing to distinguish him from anybody else. At most he could show some level of inconvenience when taking the children to and from school. The public interest required that disqualification be imposed.

Appeal principles

[12]     An appeal against sentence is a general appeal by way of rehearing.[1]  This Court on appeal has all the ability of the Court appealed from.[2] This might suggest that this Court has, on appeal, the wide latitude to intervene that the Supreme Court endorsed in Austin Nicholls & Co Inc v Stichsting Lodestar,[3]  but, at least where a component of sentence involves the exercise of a statutory discretion, that is not so.

[1] Summary Proceedings Act 1957, ss 115, 119.

[2] Section 121.

[3] Austin Nicholls & Co Inc v Stichsting Lodestar [2008] 1 NZLR 14.

[13]     In Austin Nicholls the Supreme Court expressly recognised that an appeal against the exercise of a discretion stands differently and this Court has since held, consistently, that the s 94 discretion is only open to review for error of law, or for a failure to take into account some relevant factor or for taking into account some irrelevant factor, or when it is plainly unreasonable.[4]  Even if the discretion might

have been exercised differently, that is no reason to intervene.[5]

First ground - community work

[4] Keates v New Zealand Police HC Auckland CRI 2010-404-269, 21 September 2010; Massold v Police HC Auckland CRI 2010-404-346, 8 December 2010.

[5] Clark v Police HC Wellington CRI 2007-485-106, 3 December 2007.

[14]     When  the  Judge  imposed  200  hours  community work  on  Mr  Maeva  he confined himself to saying that Mr Maeva appeared  for his  third driving while disqualified or offending offence, that it carried a maximum term of imprisonment of two years, and that he was prepared to sentence Mr Maeva immediately without a pre-sentence report, because Mr Maeva was looking after two children. He also gave

Mr Maeva a warning.

[15]     Clearly the Judge considered a deterrent sentence was called for but he also, it seems, assumed Mr Maeva to be charged with a third or subsequent offence, an indictable offence attracting a maximum fine of $6,000 or two years imprisonment and a minimum term of disqualification of one year.[6] In fact Mr Maeva was charged with a first or second offence, which attracts a fine of $4,500, or three months imprisonment and a minimum term of disqualification of six months.[7]

[6] Land Transport Act 1998, s 32(4).

[7] Section 32(3).

[16]     When the Judge imposed this sentence, Ms Letele told me on this appeal, she told  him  that  Mr  Maeva  had  been  charged  with  the  lesser  offence.  The  Judge declined, she said, to revisit his sentence. He considered it appropriate even for the lesser offence charged.

[17]     The Judge, the Crown accepts, was fixed with the maxima for the lesser offence.[8] That presents no immediate difficulty. The sentence he imposed lay within those maxima. (Curiously, despite the fact that he had assumed Mr Maeva was charged with a more serious offence he disqualified him not for 12 months as that required, but for nine months.) The issue that does remain is whether the sentence was disproportionate to the offence and manifestly excessive.

[8] Muggeridge v Police HC Christchurch CRI 2005-409-137, 12 August 2005.

[18]     The Judge was right, I consider, to put to the forefront that Mr Maeva had offended three times within a matter of months and that this sustained disobedience had to be marked by a sentence of community work; and the length of that sentence, unconstrained by any tariff, lay within the Judge's discretion. In a decision, Andrews v New Zealand Police,[9] on which the Crown relies on the principal point, however, a much shorter sentence of community work was imposed for a third offence. That at least puts in issue whether the hours imposed were proportionate.

[9] Andrews v New Zealand Police HC Tauranga CRI 2010-470-28, 18 October 2010.

[19]     In that case the appellant had driven within one year, first like Mr Maeva while suspended, and then, in contrast to Mr Maeva, not just twice more but three

times more. He was sentenced for the third and fourth offences together and he

appealed the Judge's refusal to invoke s 94. He took no issue with the sentence of community work imposed, 220 hours in all, nor did the Judge on the appeal remark on it. The sentencing Judge imposed 140 hours for the fourth offence, but 80 hours for the third.

[20]  Quite independently, I consider, the sentence here imposed became disproportionate because the Judge gave insufficient attention to three matters. His focus, firstly, was on the fact of disobedience. He did not take into account the complete absence of anything aggravating. He did not, secondly, take into account as mitigating that Mr Maeva had driven believing, however misguidedly, that this was in the interests of his child; in declining to invoke s 94 he held rather that Mr Maeva had made a wholly culpable choice. Finally, in setting the length of the sentence, he took no account of Mr Maeva's responsibilities as a caregiver. Two hundred hours community work is a significant sentence.

[21]     For these reasons I have come to the conclusion that the sentence the Judge imposed was manifestly excessive and that a lesser sentence of community work ought to have been imposed. A sentence in the range 80 - 100 hours, I consider, would have more than sufficed.

Second ground - disqualification

[22]     When the Judge declined to invoke s 94, on Mr Maeva's application, he first considered, as he was obliged to do, as I shall say in a moment, whether further disqualification was 'inappropriate', having regard to four mandatory factors, none of which, he said, favoured Mr Maeva.

[23]     First, the Judge said, Mr Maeva should not have driven his daughter to her mother. The mother should have collected the daughter. Secondly, he said, Mr Maeva had not obeyed the previous orders, he had continued to drive because he felt like it. Thirdly, he said, Mr Maeva was equally likely to disregard a further  order. He accepted that such an order might constrain Mr Maeva's ability to obtain work, but said that was an ordinary consequence. It was not, he said, as if Mr Maeva then had any job to lose.

[24]     When the Judge came to the fourth and final factor, the public interest, he set out his entire reasoning in essence:

The interests of the public are that you should be treated the same as everybody else, no special circumstances exist here for you, you are simply a run of the mill, ordinary type of bloke who has decided to keep on driving, even though you are not permitted to.

Section 94 discretion

[25] Section 94 confers the discretion to substitute a community based sentence for a mandatory term of disqualification if further disqualification is 'inappropriate',[10] and a community based sentence is 'appropriate'.[11]  That, in essence, is the analysis the Judge set out to make.

[10] Land Transport Act 1998, s 94(2).

[11] Section 94(2); s 94(1)(b).

[26]     Whether further disqualification is 'inappropriate' is to be assessed having regard to the four factors to which the Judge referred. They are:[12]

[12] Section 94(1)(b).

(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.

[27]     Section  94  is  not as  explicit  as  to  when  a  substituted  community based sentence will be 'appropriate'. It does require, if such a sentence is imposed, that the Court 'take into account the gravity of the offence and the fact that the offender would otherwise have been liable to disqualification ... '.

[28]     In these ways s 94 is highly specific. It is also very abstract. It is not animated by  any  statement  of  purpose.  It  does  not  say  why  a  further  sentence  of

disqualification might be inappropriate or a community based sentence appropriate.

The result is that the four factors to which I have referred, most pointedly those going to past or future compliance with orders for disqualification, are capable of being understood in diametrically opposed ways.

[29]     On the view taken by the Judge in this case, a substituted sentence is not to be countenanced where there have been repeated breaches and there is the likelihood of more. It is in the public interest that further disqualification, the normative sanction, be imposed. That,  however,  is  not  the purpose for which  the s 94  discretion  is conferred. That purpose, always to be served by a careful exercise of discretion, is quite the opposite.

Animating purpose

[30]     Section 30AC of the Transport Act 1962, from which s 94 derives, was always understood to be 'remedial'.[13] 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.[14]

[13] Messerschmidt v Ministry of Transport (1990) 6 CRNZ 436, 439.

[14] Nicholle v Police HC Christchurch AP 376/93, 13 December 1993.

[31]     Section 30AC, Hardie Boys J said in Mitchell v Police,[15] 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[16]  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.[17]

[15] Mitchell v Police (1989) 5 CRNZ 190, 193.

[16] Police v Te Rupe HC Palmerston North AP 10/93, 14 May 1993.

[17] Rodgers v Ministry of Transport (1989) 3 NZLR 321; Grimwood v Ministry of Transport HC Christchurch AP 184/91, 16 August 1991.

[32]     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,[18] emasculated the former s 30AC power as it had always been understood and applied.

[18] Police v Edwards HC Napier AP 64/99, 18 November 1999

[33]     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'.

[34]     In Yu v Police[19] Asher J described the precise effect of the amendment, and I gratefully adopt what he says. What I wish to emphasise is that s 94 is now, once again, unambiguously remedial though always  to be exercised,  as it says  itself, consistent with the public interest, not merely the interests of the offender. And Mr Maeva is, I consider, the very kind of offender for whom the s 94 discretion is intended.

Conclusions

[19] Yu v Police HC Auckland CRI 2006-404-000273, 10 November 2006.

[35]     Until Mr Maeva drove while suspended in January 2010 he had not offended in any way, beyond committing the infringements that led to his suspension, and his present counsel, Ms Letele, who did not represent him then, said that in fact he drove not knowing that he had been suspended. He had never been given notice.

[36]     Quite why Mr Maeva drove while disqualified in June 2010 is not evident. But that appears to have been a simple instance of disobedience. There appears to have been nothing aggravating. He was not charged with any other offence. For the offence with which he was charged he was merely disqualified further. That is the

term of disqualification to expire on 11 April 2011. The present offence was clearly a

further instance of disobedience, uncomplicated by anything more serious. He drove misguidedly believing that justified by the interests of his child.

[37]     Mr Maeva is now parlously placed. Apart from the sentence of 200 hours community work, he stands disqualified until January 2012. If he were to offend a fourth time he could face even more severe sanctions. If, conversely, he is sentenced to further community work for which he is evidently suited, as his primary sentence confirms, he will obtain his licence back on 11 April 2011, assuming it to be valid and hopefully his prospect of work will crystallise.

[38]     It is in the interests of the public as well as Mr Maeva that his offending cease and that he be able to take up work as he evidently wishes to do. That clearly warrants, I consider, the exercise of the s 94 discretion in his favour. In fixing the term of community work to which Mr Maeva must be sentenced on that account, I have  regard  to  two  decisions,  which  suggest  that  between  55  -  75  hours  will

suffice.[20]

Result

[20] Pannu v Police HC Auckland CRI 2009-404-84, 2 June 2009; Paine v Police HC Auckland CRI 2009-404-

386, 2 February 2010.

[39]     The appeal will be allowed. The sentence imposed is quashed. I impose in its place as a matter of totality a sentence of 140 hours community work, 80 hours for the offence and, under s 94, 60 hours in place of the order of disqualification that would otherwise be mandatory. Assuming Mr Maeva's licence remains valid, he will

be entitled to resume it on 11 April 2011.

P.J. Keane J