Marshall v Police

[2024] NZHC 3785

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2024-443-46 [2024] NZHC 3785

BETWEEN

KARN MARSHALL

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

11 December 2024

Appearances:

N Laird for Appellant

H Bullock for Respondent

Judgment:

11 December 2024

JUDGMENT OF MANDER J

This judgment was delivered by me on 11 December 2024 at 4 pm pursuant to Rule 11.5 of the High Court Rules 2016

Registrar/Deputy Registrar Date:     .

MARSHALL v POLICE [2024] NZHC 3785 [11 December 2024]

[1]    Karn Marshall pleaded guilty in the New Plymouth District Court to a charge of careless driving,1 four charges of driving while suspended,2 two charges of possessing cannabis for supply,3 a charge of offering to sell that drug,4 two charges of unlawfully possessing a firearm and ammunition,5 and two charges of possessing methamphetamine.6 He was sentenced by Judge G F Hikaka to 18 months’ imprisonment with leave to apply for home detention and disqualified from driving for one year and one day.7 Mr Marshall was subsequently resentenced to six months’ home detention.8 The disqualification period was not amended. Mr Marshall now appeals the length of that disqualification.

The facts

[2]    Because the appeal is confined to the length of the disqualification, it is only necessary to set out the circumstances of the driving charges in respect of which the order was made.

[3]    On 5 December 2023, when driving while suspended, Mr Marshall mounted a curb, and crashed into a tree. He was summonsed to appear on 20 December 2023 on charges of driving while suspended and dangerous driving.

[4]    On 16 December, Mr Marshall again drove while suspended. He was stopped by police due to his speeding. A further summons to appear on 17 January 2024 in relation to a second charge of driving while suspended was served on him the same day.

[5]    On both 31 December 2023 and 27 January 2024, Mr Marshall again drove while suspended.

1      Land Transport Act 1998, s 37(1). Maximum penalty: $3,000.

2      Land Transport Act 1998, s 32(1)(c) and 32(3). Maximum penalty: three months’ imprisonment or a fine not exceeding $4,500. The court must order the person to be disqualified from holding or obtaining a driver licence for six months or more.

3      Misuse of Drugs Act 1975, s 6(1)(f). Maximum penalty: eight years’ imprisonment.

4      Misuse of Drugs Act 1975, s 6(1)(e) and 6(2)(c). Maximum penalty: eight years’ imprisonment.

5      Arms Act 1983, s 45(1). Maximum penalty: four years’ imprisonment or a fine not exceeding

$5,000.

6      Misuse of Drugs Act 1975, s 7(1)(a) and (2). Maximum penalty: six months’ imprisonment or a fine not exceeding $1,000.

7      Police v Marshall [2024] NZDC 23296.

8      Marshall v Department of Corrections [2024] NZDC 26647.

District Court decision

[6]    The Judge noted that Mr Marshall had been convicted of multiple offences committed over a lengthy period, some while on restrictive bail. The Judge held it was clear Mr Marshall had been running a commercial drug operation. His drug dealing, when coupled with the firearms and ammunition charges, was observed as making deterrence particularly relevant.

[7]    For the drug offending, the Judge set a starting point of 18 months’ imprisonment and for the Arms Act charges, he applied a starting point of 12 months’ imprisonment.  This  combined  starting  point  was  uplifted  by  two  months  for Mr Marshall’s persistent driving while suspended.

[8]    Mr Marshall was afforded a full discount for his guilty pleas (eight months). However, while Mr Marshall had no criminal record, the Judge declined to extend credit for his previous good character given his recent pattern of continual offending over a lengthy period for which he had now accumulated 13 convictions. A 10 per cent discount was applied for Mr Marshall’s youth and a further five per cent granted for his rehabilitative prospects. This resulted in the end sentence of 18 months’ imprisonment.

[9]    After discussing release conditions, the Judge simply stated “[t]he minimum disqualification, a year and a day,  starting from  today”.  When later  substituting  Mr Marshall’s sentence of imprisonment for home detention, the Judge did not refer to the period of disqualification.

The appeal

Fresh evidence

[10]   In support of his appeal, Mr Marshall swore an affidavit in which he deposed he had forgotten to tell his lawyer before sentencing that he had obtained his restricted driver licence while waiting to be sentenced. Mr Marshall sat and passed his restricted driver licence  test  on  15  August  2024,  a  month  prior  to  being  sentenced  on  24 September.

[11]   Mr Marshall notes in his affidavit that at a previous court appearance, the Judge (it is not clear whether it was Judge Hikaka) commented if Mr Marshall were able to obtain his restricted licence prior to sentencing that fact would be taken into account when considering the period of disqualification.

[12]   While it was tentatively suggested the evidence was not fresh, it was before the Court because of its relevance to the issue raised on the appeal regarding the length of the disqualification period. There is no dispute Mr Marshall passed his restricted driver licence prior to being sentenced, and, for the purpose of formally proving that fact, the affidavit is admitted on his appeal.

Appellant submissions

[13]   Ms Laird, for Mr Marshall, submitted the Judge was clearly labouring under a misapprehension as to the minimum disqualification period that applied when he referred to the disqualification of one year and one day as being the minimum period of disqualification. In fact, under s 32(1)(c) and 32(3) of the Land Transport Act 1998 the minimum period for a person convicted of their “first or second” offence of driving while their licence is suspended is six months.

[14]   Additionally, Ms Laird submitted a disqualification period of that length would be manifestly excessive given Mr Marshall passed his restricted licence test prior to sentencing and would have to re-sit the test if he was to be disqualified for more than one year.

Respondent submissions

[15]   Ms Bullock, for the police, acknowledged the apparent error by the sentencing Judge but submitted, while the minimum period of disqualification for a first or second offence of this type is six months, the length of the disqualification period is at the discretion of the Court. Ms Bullock agued it was open to the Court to impose a lengthier period of disqualification. The following aggravating features were identified as relevant to that assessment:

(a)The first instance of driving while suspended involved careless driving;

(b)The repetitive nature of the offending over a two-month period, including a continuation of driving while suspended when there were active charges for the same offence before the court; and

(c)Mr Marshall was aware of the active charges when he drove while suspended on 16 and 31 December 2023 and 27 January 2024. Additionally, he failed to appear on 20 December 2023 when a warrant had to be issued for his arrest. This, it was submitted, demonstrated a blatant disregard for court orders.

[16]   Ms Bullock submitted a disqualification period between 12 and 14 months could be justified in the circumstances.

Analysis

[17]   Section 32(3)(b) of the Land Transport Act provides that a person convicted of a first or second driving while suspended offence must be disqualified from holding or obtaining a driver licence for six months or more. Where a person has been convicted of careless driving, as Mr Marshall has, the court has a discretion to order disqualification for such period as the court thinks fit.9 Where a person is disqualified from holding or obtaining a driver licence for more than 12 months, that person must re-sit any required tests and examinations in order to regain the same class of licence previously held.10

[18]   It does not appear that any significant weight was placed by the sentencing Judge on the careless driving charge as Mr Marshall was convicted and discharged on that offence. The principal objective of disqualification is said to be public safety.11 There are aspects of Mr Marshall’s driving offending that raise that concern. On the first occasion, he failed to take a bend because of his speed. However, there is no evidence of Mr Marshall driving in a particularly dangerous manner on any of the other occasions. The summary indicates he was speeding on the second occasion he was caught driving while suspended, but there is no reference to his exact speed at that

9      Land Transport Act 1998, s 37(2)(b).

10     Land Transport Act 1998, s 83(1).

11     Leaupepe v Police [2015] NZHC 1766 at [8].

time. In the absence of any specific focus on particular safety concerns arising from Mr Marshall’s driving, I accept his case can be distinguished from Syratt v Police (referred to me by Ms Bullock) which involved a charge of careless driving causing injury and a charge of dangerous driving where the sentencing Judge imposed two six- month periods of disqualification.12

[19]   The Judge in the present case, understandably given the balance of the offending for which Mr Marshall was for sentence, did not dedicate much of his sentencing remarks to his driving offending. The Judge’s brief reference, when imposing the disqualification, is to a “minimum disqualification”. The Judge may have had in mind s 32(4) of the Act which provides for a mandatory disqualification period of one year or more where a person is convicted of a third or subsequent offence. That penalty provision does not apply to Mr Marshall because, while he was for sentence on four charges of driving while disqualified, a qualifying offence can only be one committed after the entering of a conviction for an earlier offence and not simply after the commission of that offence.13 The language used when the disqualification was imposed suggests no greater disqualification was intended than the statutory minimum. However, I accept, with the error having been identified, it falls to the appeal Court to impose an appropriate substitute period of disqualification.

[20]   As is clear from a number of authorities, it is possible to impose cumulative periods of disqualification or concurrent terms of disqualification with a longer period imposed in respect of a second or subsequent offence to reflect the degree of aggravation that arises from the second set of offending occurring after the first.14 As noted by Ms Bullock, the minimum period of disqualification refers to a first or second offence of driving while suspended of six months. Mr Marshall was for sentence having committed a third and fourth offence while facing active charges in respect of the earlier breaches  of  the  suspension.  An  unavoidably  aggravating  feature  of Mr Marshall’s continued offending is its repetitive nature over a period of two months and his blatant disregard for Court orders.

12     Syratt v Police [2016] NZHC 1972.

13     McMann v Ministry of Transport (1987) 2 CRNZ 61; and Beecroft and Halls Transport Law (NZ) LTA 32.16(b)(i).

14     Nicholl v Police HC Auckland CRI-2005-404-312, 3 October 2005; Schruba v Police HC Dunedin CRI-2008-412-30, 25 September 2008, at [13]; Syratt v Police, above n 12.

[21]   Against those considerations is that, in large part, Mr Marshall’s other offending during this period, which included drugs and Arms Act charges, largely superseded the driving charges. The sentence of imprisonment, later substituted by the imposition of home detention, met the needs of deterrence and denunciation and lessened the need for a punitive period of disqualification. It appears there is some correlation between Mr Marshall’s driving offending and his poor decision-making with his drug abuse, which he is said to be motivated to address, and his association at that time with negative influences.

[22]   It is apparent from the Judge’s sentencing remarks that he sought to balance the need to impose an effective sanction for Mr Marshall’s alarming spate of offending and personal mitigating factors relating to his youth and rehabilitative prospects—he was 22 years old at the time with no previous convictions. To be added to those latter considerations is the further information that has now been made available, that while on remand and awaiting sentence, he obtained his restricted driver licence which is now in jeopardy as a result of the one year and one day disqualification that only appears to have been imposed because of a misunderstanding as to the minimum period of disqualification that could be ordered by the Court. As noted earlier, it is difficult to surmise what the sentencing Judge may have been intending, but I accept it would be a retrograde step for the length of the disqualification to nullify this positive rehabilitative step. That said, I do consider there needs to be some recognition of the repeated nature of Mr Marshall’s breaches by the imposition of a period of disqualification beyond simply the mandatory minimum term.

[23]   Having regard to all these factors, I settle on a  period of disqualification of 10 months. I consider that period of disqualification adequately responds to the recidivism inherent in Mr Marshall’s continued driving while suspended but does not jeopardise his restricted driver licence which he would otherwise have to resit before being able to legally drive again.

Result

[24]   The sentence of one year and one day’s disqualification from obtaining or holding a driver licence is quashed and replaced with a period of 10 months’ disqualification.

Solicitors:
Crown Solicitor, New Plymouth