McHardy v Police

[2023] NZHC 2808

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2023-412-78

[2023] NZHC 2808

BETWEEN

RANALD JAMES MCHARDY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	5 October 2023
Appearances:	K Lawrence for the Appellant M Brosnan for the Crown
Judgment:	6 October 2023
Reissued:	30 January 2024

JUDGMENT OF HARLAND J

[1]    Ranald McHardy appeals against a decision of Judge Smith in the Alexandra District Court of 20 July 20231 declining his application upon sentence to impose a sentence of community work under s 94 of the Land Transport Act 1998 (LTA) as opposed to disqualifying him for a period of six months. The Crown opposes the appeal.

Background

[2]    Mr McHardy pleaded guilty to three charges, all of which occurred on 17 August 2022. They comprise a breach of a protection order, 2 an assault3 and driving

1      Police v McHardy [2023] NZDC 17286.

2      Family Violence Act 2018, ss 90(a), 9 and 112(1)(a).

3      Crimes Act 1961, s 194A.

MCHARDY v POLICE [2023] NZHC 2808 [6 October 2023]

with excess breath alcohol.4 The first two charges concern offending against a family member; the latter was a result of testing undertaken when the Police stopped him driving shortly after the incident involving the victim.

[3]    Although not directly relevant to the issue on appeal, the background provides some context to it. It was referred to by the District Court Judge and is now briefly summarised by me.

[4]    At about 8.30 pm on 17 August 2022, Mr McHardy was at his home address in Alexandra. He had been consuming alcohol with an associate throughout the evening and was intoxicated. A number of others were at the address. The victim returned home from work and the pair became involved in a heated argument over money it was alleged Mr McHardy owed her for a box of beer. The argument escalated and became physical. During it, Mr McHardy head-butted the victim in the face, causing the bridge of her nose to split open. She required treatment at hospital.

[5]    The breach of a protection order charge arose because the victim was the subject of a final protection order made in her favour against Mr McHardy in 2012, which has since expired. There is no suggestion she had not agreed to living at Mr McHardy’s address despite the existence of the protection order.

[6]    The Police arrived to answer the assault and observed Mr McHardy driving his vehicle on the road. The summary of facts records that, during “the interaction, it became clear he was affected by alcohol”. Mr McHardy was required to undergo a breath screening test which yielded a positive result. An evidential breath test was then undertaken which recorded a reading of 600 micrograms of alcohol per litre of breath. Mr McHardy denied assaulting the victim and stated he had driven to get away from the situation.

District Court decision

[7]    While agreeing with Mr McHardy’s assertion that he had to get out of the situation, the Judge dismissed his excuse that he was required to drive away from it.

4      Land Transport Act 1998, s 56(1).

The Judge questioned why he did not simply walk away or enlist the services of a friend to pick him up. The Judge perceived in Mr McHardy “a disposition to cause harm to others” while canvassing his criminal record and noting that the offending entailed his fifth breach of the protection order,5 and that he had been imprisoned previously for breaching a protection order and assaulting a female.

[8]    The Judge adopted a starting point of 15 months’ imprisonment which she uplifted by three months to reflect Mr McHardy’s previous relevant convictions. With a 25 per cent credit for his early guilty pleas, the end sentence was one of 13 months and two weeks’ imprisonment. With regard to the proposed home detention address, which was accepted to be pro-social, and with a further deduction allowed for time spent on remand, an end sentence of five months’ home detention was imposed.

[9]    In relation to the application under s 94 that a community-based sentence be imposed rather than disqualification on the excess breath alcohol charge, the Judge said:

[14]      I will deal with the application that you not be disqualified first. That is pursuant to s 94 of the Land Transport Act 1998 (the Act). It is a section that is broadly written and you qualify for such a sentence if I exercise my discretion to impose it. In particular, the things that I have to assess when considering not disqualifying you, which mandatorily I ought to do, are your circumstances, the effectiveness of any previous order, the likely effect on you of a further order of disqualification and the interests of the public.

[15]In terms of your circumstances, I have already outlined them.

[16]      The effectiveness of the previous order, I think has been really effective. You have had one previous conviction from 20 years ago. I think you learnt from that because you had not driven since when disqualified. The effect on you would be an effect on your employment. That might be mitigated or ameliorated by a limited licence if available to you and in relation to the interests of the public, I do not see they particularly lie in favour of you not being disqualified.

[17]      I am well aware s 94 of the Act has wide application and it is broadly framed. However, I have reached the firm view that there was nothing about your offending on that occasion for you personally that would warrant you other than being disqualified. That is appropriate.

5      Police v McHardy, above n 1, at [8].

[10]   Mr McHardy was disqualified for six months, the minimum period available to the Judge under s 56(3)(b) of the LTA.

Legal principles

[11]   An appeal against a refusal to grant an application under to s 94 is an appeal against the exercise of discretion. An appellant must satisfy this Court that the Judge wrongly exercised their discretion by taking into account irrelevant considerations, failing to have regard for material considerations, erring in principle or that the ultimate decision was plainly incorrect.6

[12]   Section 94 of the LTA however enables the substitution of a community-based sentence as an alternative to disqualification in certain circumstances. It 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.

6      Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [32].

(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.

(4)   This section does not apply if—

(a)section 63 or section 65 applies; or

(aa) an alcohol interlock sentence has been ordered under section 65AC(1); or

(b)the offender is prohibited from applying for a limited licence under section 103(2)(a), (b), or (d).

(emphasis added)

[13]   The matters outlined in s 94(1)(b) are the focus of attention in this appeal. I refer to them loosely as criteria. It appears each must be considered by the Judge when considering an application to substitute a community-based sentence for disqualification.

[14]   It is clear that these criteria enable an holistic approach to be taken to the matters that might be relevant to the exercise of the discretion. Several Judges in the High Court have described the section as having “wide application”7 because it

7      Beeston v Police [2012] NZHC 1064 at [24].

enables a Judge to take into account anything that might be relevant as to whether it is appropriate to order disqualification or, instead, impose a community-based sentence.8

[15]   In Maeva v Police,9 the Court observed that s 94 was understood to be “remedial” and was there to enable recidivist disqualified drivers, in certain circumstances, to receive a community-based sentence to effectively break the “wheel of offending”, namely, it applies in situations where disqualification is likely to engender further offending of a similar kind. In Wilson v Police, Dobson J considered the history and purpose of s 94 and noted it was primarily a compassionate provision, aimed at breaking the chain of offending for recidivist offenders.10 Certainly these observations find their support in s 94(1)(b)(ii) of the LTA which is one of the matters that is required to be considered when addressing whether it would be appropriate to impose a community-based sentence rather than disqualifying a defendant from holding or obtaining a driver’s licence.

[16]   But although the observations in other cases are helpful, they do not detract from the fundamental point that the discretion is to be exercised based on the facts of a particular case. In this regard, previous decisions of the High Court on the topic, while helpful, are not binding.

Discussion

[17]   For Mr McHardy, Ms Lawrence submitted that the Judge did not undertake a thorough enough analysis of the factors referred to in s 94(1)(b). She emphasised that Mr McHardy requires a licence to travel to work (90 km there and back) and she noted that his employment involves operating diggers and roading equipment. It was submitted that these matters were not considered by the Judge however I note that the Judge had before her Mr McHardy’s affidavit11 outlining these matters and she also had the benefit of written submissions from the then counsel for the defendant highlighting them.

8      Body v Police [2013] NZHC 1586 at [6]-[7].

9      Maeva v Police HC Auckland CRI-2010-404-402, 11 March 2011, at [30].

10     Wilson v Police [2014] NZHC 3028 at [9] – [12].

11     Sworn 20 July 2023.

[18]   Ms Lawrence submitted that the public interest favours Mr McHardy’s application given the nature of his work, Queenstown’s infrastructure issues and the difficulties faced by businesses and companies attracting workers to the area.12 She also referred to other cases where an application under s 94 had been granted.13

[19]   Ms Brosnan, for the Crown, relying on Wilson v Police,14 submitted that I should adopt the observation in that case that s 94 should only apply where the personal circumstances of the offender and their rehabilitative prospects justify them being afforded an opportunity to break the cycle of circumstances contributing to what was referred to in that decision as “recidivist offending”.15 For this reason, Ms Brosnan submitted that the Court is required to take a cautious approach to the exercise of the discretion under s 94 to ensure that it does not undermine the efficacy of disqualification as a penalty.

[20]   I was prepared to find that it would not be a remote possibility for Mr McHardy to lose his employment following my initial reading of counsels submissions. However, Ms Lawrence advised at the hearing that, in fact, Mr McHardy has not lost his employment but has been redeployed by his employer and is involved in matters that do not require him to drive or operate diggers and roading equipment. As well, Ms Lawrence advised that, for the most part, Mr McHardy has been able to travel to work with a workmate. There are times when their work shifts do not synchronise but I gained the impression from Ms Lawrence that, in the main, Mr McHardy was able to continue with his employment and was able to get a ride to work with his workmate. This is relevant for two reasons, the first is that it indicates that, despite being on home detention, he has been approved to continue to attend his workplace and, second, it rather detracts from the submission that he stood to lose his job if his disqualification was not commuted to a community-based sentence.

[21]   I explored with Ms Lawrence the prospect of Mr McHardy obtaining a work licence. Ms Lawrence advised that he is eligible for a work licence but it appears that

12     This point was salient in Hurlstone v Police HC Gisborne CRI-2008-416-17, 15 December 2008, where the need for truck drivers in the area was considered in public interest analysis.

13     Hatakeyama v Police HC Auckland CRI-2010-404-516, 19 May 2011; Hurlstone v Police, above n 12; Gilbert v Police [2014] NZHC 508.

14     Wilson v Police, above n 10.

15 At [12].

no application for one has been made. Although other counsel act for Mr McHardy on his District Court matters, the argument was put forward that it would be too difficult to specify the vehicles he could be required to drive at work given that there are a number of them and, from time to time, he is required to drive vehicles that belong to sub-contractors, which cannot be identified ahead of time. I am not persuaded that these arguments are particularly compelling or that they add weight to the need for Mr McHardy to serve a community-based sentence rather than to be disqualified.

[22]   In relation to the circumstances of the offence, the Judge referred to Mr McHardy’s consumption of alcohol during the evening and that he was intoxicated. She also noted that, when the Police arrived, they observed him driving his vehicle and that it became clear to them he was affected by alcohol.16 Ms Lawrence accepted that it was open to the Judge to infer, from the summary of facts, that Mr McHardy’s level of intoxication was evident because of the way he drove his vehicle.

[23]   The Judge cannot be faulted in her assessment of the circumstances of the case and of  Mr  McHardy,  being  matters  she  was  required  to  have  regard  to  under  s 94(1)(b)(i).

[24]   The next criterion relates to the effectiveness or otherwise of the previous order of disqualification imposed on Mr McHardy; which is referred to in s 94(1)(b)(ii). Mr McHardy is not a recidivist offender and, as noted by the District Court Judge and Ms Brosnan, he has not offended since his last period of disqualification some 20 years ago. In this respect, the previous order of disqualification appears to have been effective.

[25]   I have already addressed the matters considered by the Judge under s 94(1)(b)(iii) above and added to it the further submissions made to me about Mr McHardy’s current employment.

[26]   In relation to the requirement to have regard to the interests of the public (s 94(1)(b)(iv)), driving while under the influence of alcohol is conduct that must be

16 At [3].

expressly deterred and denounced. Mr McHardy does not appear to be overly remorseful, he has shown no will to engage in any rehabilitative measures and does not seem to consider his consumption of alcohol to be problematic.

[27]   I now address the cases which I consider most comparable and distinguish them.

[28]   It does not appear that anyone depends on Mr McHardy in the way the solo mother appellant was depended on by her child in Hatakeyama v Police and neither do the financial burdens suffered there appear to apply here. Furthermore, in that case, the appellant’s offending resulted in her being continually disqualified.17 That is not the case here.

[29]   Hurlstone v Police is somewhat analogous in that the appellant left the address after an incident at a family gathering and his prior relevant convictions were some 20 years prior.18 Stevens J granted the s 94 application “by a narrow margin”, following consideration of evidence provided by the appellant’s employer that there was a shortage of truck drivers in Gisborne and his business would directly suffer if the appellant was disqualified. In that case, the appellant faced a year of disqualification (as opposed to six months), but his breath alcohol reading at 500 mg per litre of breath was lower than Mr McHardy’s.

[30]   It is difficult to read Judge Smith’s decision and conclude that she did not thoroughly consider s 94 before disqualifying Mr McHardy from driving. The Judge clearly outlined Mr McHardy’s circumstances, analysed the effectiveness of his past driving prohibition, took into account his employment and considered the public interest.

[31]   Whether Mr McHardy should be disqualified or not was a matter for the Judge to decide. I can find no identifiable error in her approach or judgment. The aforementioned case law fortifies my position, with all cases bar potentially Hurlstone suggesting that Mr McHardy should be disqualified from driving. Even in Hurlstone,

17     Hatakeyama, above n 13, at [2].

18     Hurlstone, above n 12, at [5].

the penalty of one year’s disqualification, combined with the more compelling evidence presented to the Judge in that case from the appellant’s employer and lower blood alcohol reading, mean that it is distinguishable.

Result

[32]The appeal is dismissed.

Harland J

Solicitors:

Public Defence Service, Dunedin RPB Law / Crown Solicitor, Dunedin.