Masters v Police
[2020] NZHC 33
•18 February 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2019-404-483
[2020] NZHC 33
BETWEEN TATUM MASTERS
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 17 December 2019 Appearances:
H Croucher for the Appellant A Devathasan for the Police
Judgment:
18 February 2020
JUDGMENT OF POWELL J
This judgment was delivered by me on 18 February at 3.30 pm Registrar/Deputy Registrar
Date:
Solicitors/Counsel: H Croucher, Auckland
Crown Solicitor, Auckland
MASTERS v NEW ZEALAND POLICE [2020] NZHC 33 [18 February 2020]
[1] On 23 October 2019 the appellant, Tatum Masters, was sentenced to six months’ home detention and disqualified from holding or obtaining a driver’s licence for 12 months’ in relation to the following charges:
(a)possession of a firearm;1
(b)possession of ammunition;2 and
(c)driving while disqualified (third or subsequent).3
[2] The offending arose on 15 December 2018, Ms Masters was driving a silver BMW in Manurewa. The vehicle had just been reported to Police in relation to suspicious activity by a member of the public. Police stopped the vehicle and discovered Ms Masters was disqualified from driving.
[3] Police then invoked a search and surveillance search of the vehicle and located a shotgun in the back, behind the driver’s seat. The shotgun was wrapped in a white towel and had five shotgun cartridges loaded into the firearm.
[4] Ms Masters appeals against one aspect only of Judge Lovell-Smith’s decision, being the refusal to grant her application made pursuant to s 94 of the Land Transport Act 1998 (“the Act”), to receive a community-based sentence in lieu of disqualification (“the s 94 decision”). Judge Lovell-Smith declined the application in the following terms:4
I deal with the s 94 first. I have considered that very carefully. You have just got your learner’s license, and I accept the police submission you are some distance from obtaining your full license, and this is your thirteenth conviction for driving while disqualified which shows you take no notice of Court orders. The reason why you have to have a license to drive is for the protection of the public. I am not going to allow that application and you are further disqualified today for 12 months, which is the minimum I can impose from today’s date.
1 Arms Act 1983, s 45(1): maximum penalty of four years’ imprisonment.
2 Section 51: maximum penalty of three years’ imprisonment.
3 Land Transport Act 1998, ss 32(1)(a) and 32(4): maximum penalty of two years’ imprisonment or a $6,000 fine and 12 months’ mandatory disqualification.
4 New Zealand Police v Tatum Beverley Masters [2019] NZDC 21502 at [6].
[5] Ms Masters, through Ms Croucher, contends that Judge Lovell-Smith erred in failing to have regard to the mandatory factors in s 94(1)(b), and in particular that the Judge failed to take into account the effectiveness of previous orders of disqualification; the likely effect of further disqualification; and the interests of the public in having Ms Masters become a licensed driver.
[6] Ms Croucher submitted having regard to Ms Masters personal circumstances, as a solo mother and a caregiver to her sister, the most effective penalty in this case would be a sentence of community work in lieu of disqualification. This would allow Ms Masters to gain her restricted licence and then full licence, and remove her from the “treadmill of offending”.
[7] It is well established that an appeal of this type must be allowed if the Judge is satisfied that there is an error in the sentence imposed on conviction and that a different sentence should be imposed.5 In any other case, the appeal must be dismissed.6 The measure of error is the sentence be “manifestly excessive”, a principle “well engrained” in the Court’s approach to sentence appeals.7
The relevant law
[8] Section 94 of the Act allows for the Court to impose a community-based sentence in lieu of disqualification where an offender has previously been disqualified from driving and the Court considers such a sentence would be appropriate. The section relevantly 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
5 Criminal Procedure Act 2011, s 250(2).
6 Section 250(3).
7 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27], [33] and [35].
(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.
[9] Therefore, before the Court may consider this provision the offender must have been previously ordered to be disqualified; the Court must then decide whether the disqualification is inappropriate having regard to the s 94(1)(b) factors; and lastly, the Court must also determine if it would be appropriate to sentence the offender to a community-based sentence.
Discussion
[10] There is no dispute the s 94 decision is an exercise of the sentencing judge’s discretion. As noted by Wylie J in Te Aotonga v Police, the discretion is broad.8 The sentencing consideration consistent with the application of s 94 is the compassionate appreciation that recidivist drivers who cannot restrain themselves from driving throughout periods of disqualification may deserve an opportunity to break the chain of circumstances causing their offending, namely on-going periods of disqualification. Section 30AC of the Transport Act 1962, from which s 94 derives, was always understood to be remedial.9 It was to abstract recidivist disqualified drivers from an unending wheel of offending, where any further disqualification was likely only to engender further offending.10 In Te Haara v Police, Winkelmann J (as she was) cited an earlier observation of Fisher J as follows:11
The fact that an offender is driving while disqualified attracts punishment not because there is any fresh dangerous conduct but rather because the Court’s sanctions are meaningless unless they are obeyed. A penalty is needed to
8 Te Aotonga v Police [2019] NZHC 1274.
9 Messerschmidt v Ministry of Transport (1990) 6 CRNZ 436,439.
10 Nicliolle v Police HC Christchurch AP 376193, 13 December 1993.
11 Te Haara v Police HC Auckland CRI-2004-404-370, 5 October 2004 at [18], citing Lambert v Police HC Rotorua AP62/90, 11 October 1990.
ensure that the earlier sentence is carried out and to maintain respect for law but not because of any fresh fears for the safety of the public.
[11] In this case there is no dispute that Ms Masters has previously been disqualified from holding or obtaining a driver’s licence. It is in fact her fourteenth conviction for that offence. It is also accepted that a community-based sentence would have been available as an alternative to disqualification.12 Section 94 however, should only justify a variation from the norm where the personal circumstances of the offender, and in particular their rehabilitative prospects, justify affording the offender an opportunity to break the cycle of circumstances contributing to the recidivist offending.13
[12] That is not the case here and I am satisfied that, having specific regard to the s 94(1)(b) factors, Judge Lovell-Smith was correct in making the s 94 decision. Although the Judge did not detail her reasons in relation to each factor that is to be considered under s 94 of the Act, it nonetheless seems clear that the Judge declined the s 94 application because the interests of the public would not be served by allowing Ms Masters to avoid a further disqualification.
[13] I agree. First and foremost, this is not a case where if she were not disqualified Ms Masters would be able to resume driving in order to transport her son and/or her sister. She has only a learner’s licence. As a result, she is only able to legally drive if there is a supervisor sitting in the front passenger seat of her vehicle. The supervisor must have held a full driver’s licence for at least two years.14 If a supervisor is available to supervise Ms Masters while driving then that same person would be available to drive Ms Masters’ sister and son. I do not therefore consider much weight can be put on this factor.
[14] In any event, the lack of an appropriate licence has not stopped Ms Masters from driving to date. Between September 2001 and November 2012, she incurred demerit points on no less than 15 occasions for driving unaccompanied on her learner’s
12 Despite two previous convictions for breaching sentences of community work, the pre-sentence report prepared for sentencing noted that the full 400 hours were available, indicating that the appellant had nonetheless completed these sentences.
13 Wilson v Police [2014] NZHC 3028 at [12].
14 Land Transport (Driver Licensing) Rule 1999, r 16.
licence, together with five failures to display “L” plates. This led to Ms Masters being suspended for three months on two occasions, the last in 2003, and she appears to have never taken any steps to obtain a licence that would enable her to drive independently.
[15] Following her second suspension on 17 November 2012, Ms Masters would have been under no illusion that she was not entitled to drive on her current licence and she appears to have gone straight back out on the road, being charged with driving while suspended on 18 January 2013. Since then, as noted, she has been found guilty of driving while disqualified on a further 13 occasions. Somewhat surprisingly there have been at least two reasonably lengthy periods where Ms Masters has not been subject to suspension but again she has shown no inclination to obtain an appropriate licence or to otherwise show any understanding that her behaviour is not appropriate. Even when she was on bail awaiting her Judge-alone trial on the present charges, Ms Masters breached her bail conditions by driving. Having been stopped for driving through a red light in the early hours of the morning she told Police she had forgotten she was forbidden to drive and had bail conditions not to drive.
[16] Leaving aside her licensing history Ms Masters otherwise has an appalling driving history. Since 2014 she has been convicted of driving a motor vehicle in a dangerous manner; reckless driving; and failing to stop or remain stopped for an enforcement officer/red and blue flashing lights.
[17] Ms Masters has also shown poor compliance with community-based sentences, including her current sentence of home detention. Relevantly, she also has two convictions for breaches of community work, the latest being in June 2019. Ms Masters also has a conviction for breach of home detention in 2017.
[18] A memorandum of the Department of Corrections to the Courts to assist with sentencing, dated 4 October 2019, also records that a pre-sentence report could not be completed due to Ms Masters’ failure to attend her scheduled appointments. The report records Ms Masters’ failure to engage with her supervision sentence and details her recent history of non-compliance and avoidance of her sentence responsibilities. The report also describes, in relation to rehabilitative interventions, that Ms Masters has not completed any programmes.
[19] It is clear Ms Masters has not demonstrated any commitment to change her behaviour, or otherwise progress her driver’s licence, so as to prevent the same type of offending in the future. Therefore, although the likely effect of disqualification for Ms Masters will delay her obtaining a restricted licence for a period of a further six months after her sentence of home detention has concluded, I consider this has limited effect due to her clear lack of commitment to change her behaviour, despite what she has stated in an affidavit filed for sentencing.
[20] In the circumstances, and while in terms of s 94(1)(b) previous orders of disqualification do not appear to have been effective in discouraging Ms Masters to offend, and that as a result Ms Masters is clearly on a “treadmill of offending”,15 the treadmill is clearly of Ms Masters own making, and it is equally clearly not in the public interest, in terms of s 94(1)(b)(iv), to let Ms Masters back on the road prior to the expiry of the current sentence of disqualification.
[21] As noted in Parata v Police this Court emphasised that the provision must be exercised in a way that is consistent with the public interest, not merely the interests of the offender. In particular:16
[T]he provision makes plain the offender’s interests are but part of the statutory mix. And, too ready resort to s 94 could undermine the efficacy of disqualification as a penalty more generally.
[22] In this case public interest requires Ms Masters be disqualified from driving, particularly given that she is not fully licensed and has a significant history of breaching the conditions of her learner licence and driving in a manner that is unsafe, coupled with the lack of any evidence that her behaviour has changed.
[23] Overall, Ms Masters has demonstrated a complete disregard for Court imposed orders, previous disqualifications and driving restrictions. Rather than this being a reason to substitute disqualification for a community sentence however, I consider these concerns squarely engage the importance of disqualification as a penalty,17 and outweigh any public interest in removing Ms Masters from the “treadmill of
15 Maeva v Police CRI-2010-404-402 [11 March 2011].
16 Parata v Police [2016] NZHC 3026 at [10].
17 Parata v Police [2016] NZHC 3026.
reoffending”. Indeed, in this case the implicit suggestion that the sentence of disqualification should be waived because Ms Masters will almost certainly breach it is particularly repugnant given she has never had a right to drive by herself on New Zealand roads.
Decision
[24]The appeal is dismissed.
Powell J
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