Misa v Police

[2023] NZHC 720

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CRI-2022-463-157

[2023] NZHC 720

BETWEEN

CHRIS MU MISA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	3 April 2023
Appearances:	J W Howell and K R O’Connor for Appellant J Manera for Respondent
Judgment:	3 April 2023

ORAL JUDGMENT OF JOHNSTONE J

This judgment was delivered by me on 3 April 2023 at 2.56 pm

Registrar/Deputy Registrar

Solicitors:

Adams Law, Tauranga Crown Solicitor, Tauranga

MISA v POLICE [2023] NZHC 720 [3 April 2023]

[1]    On 20 October 2022, Chris Mu Misa was sentenced having pleaded guilty to a charge of driving with excess breath alcohol, as a third or subsequent such offence. He was sentenced to four months’ community detention, nine months’ supervision, and disqualification from holding or obtaining a driver licence for one year and one day. In imposing that sentence, Judge Cameron declined Mr Misa’s application under s 94 of the Land Transport Act 1998, for a community-based sentence instead of the order for disqualification that was (in the absence of special reasons relating to the offence) otherwise required. Mr Misa appeals against the sentence imposed, and in particular against the decision to decline the s 94 application.

Background

[2]    Mr Misa’s offending was detected when he was stopped by police at a checkpoint at about 2.12 am on Saturday, 11 June 2022. His breath was found to contain 483 micrograms of alcohol per litre. He said he was “just going home”.

[3]    At the time, Mr Misa was 38 years old. He had excess breath alcohol convictions stemming from 2006, 2008 (two convictions), 2009 and 2016. He also had convictions for driving while disqualified. Those convictions stemmed from his disqualifications for his first 2008 drink driving offence and his 2016 drink driving offence. But his disqualifications stemming from his convictions in 2006 and 2009, and his second 2008 offence, were served without giving rise to further such convictions.

District Court decision

[4]    Judge Cameron referred to affidavit evidence establishing that Mr Misa would ordinarily have a role transporting his six children to school or other events when his partner cannot, and that he would need to drive both to and while at work. Then adopting NZ Police submissions, his Honour observed:

[9]        In the result, this is a situation of a repeat drink-driver seeking to avoid a disqualification on grounds of work and because of convenience in the family context. Against that there is the repeat drink-driving. Ms O’Connor points to the defendant having undergone a 10 week drink-driving course in 2016, the date of his most recent previous offending, but sadly this has not prevented the defendant from committing the same offence.

[10]      I also agree with the Sergeant’s observation that the disqualifications which have followed each of his five previous convictions have actually on the face of it acted to reduce the risk of this repeat offending by the defendant. So they have had an effect and in my view a further 12 month disqualification with a limited licence is also likely to have the necessary deterrent effect and to protect the public.

[11]      For those reasons I consider it would be in the interests of the public that this defendant be further disqualified from holding or obtaining a driver’s licence and accordingly the application fails.

Principles on sentence appeals

[5]    Section 250 of the Criminal Procedure Act 2011 governs first appeals against sentence such as this. Such appeals must be allowed if the Court is satisfied that for any reason there is an error in the sentence imposed and a different sentence should be imposed. The focus is on the end sentence rather than the process by which the sentence is reached. The Court will not intervene where the sentence is within range and can be justified by accepted sentencing principles.1

Principles on substitution of community-based sentences for driver licence disqualification

[6]Section 94 of the Land Transport Act relevantly provides:

(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

1      Ripia v R [2011] NZCA 101 at [15]; Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36]; and Larkin v Ministry of Social Development [2015] NZHC 680 at [26].

(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.

…

(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).

[7]    As observed in Becroft & Hall’s Transport Law (NZ), s 94 is inserted “into an Act that provides generally for mandatory minimum periods of disqualification for certain offences, a feature which was maintained throughout successive amendments to its predecessor, the Land Transport Act 1962. For this reason, case law has developed on the premise that mandatory minimum disqualification will remain the normative sentence, with s 94 being reserved for exceptional cases, or perhaps more accurately, clear [cases] only.”2

2      Becroft and Hall’s Transport Law (NZ) at LTA 94.2 headed ‘Purpose and function of s 94’.

[8]Further:

[I]ts primary focus would appear to be to avoid the cumulative effect of adding periods of disqualification each time that offence is committed, and to get persons off the treadmill of reoffending.3

[9]In Governor v Police, the Court of Appeal observed:4

Section 94 was enacted to address the fact that many offenders fail to comply with court-ordered periods of disqualification and, if this happens sufficiently often, that offender becomes caught up in a never-ending cycle of disqualification. The person is disqualified for some offence, say careless driving; breaches the disqualification and is charged accordingly; a further period of disqualification is imposed; this is then breached; and this breach is followed by a further charge, and on it goes. The rationale for s 94 was that a community-based sentence might be more likely to engender compliance with court orders, with the added advantage of being a step short of imprisonment.

Appellant’s submissions

[10]   For Mr Misa, Mr Howell submitted that Judge Cameron failed to give weight to Mr Misa’s reduction in offending over time: referring to the seven- and six-year gaps in offending between 2009, 2016 and 2022. He further submitted that the Judge ignored the PAC report writer’s assessment of low risk of reoffending, and an alcohol report indicating de-escalation in offending, along with completion of a 10-week anti- drink drive programme in 2016. He submitted that the Judge failed to have regard to Mr Misa’s rehabilitative efforts by way of self-referral to the Salvation Army and the Hanmer Clinic following his 2022 offending.

[11]   On this basis, Mr Howell submitted that the Judge’s assessment that a limited licence was the more appropriate pathway was wrong, pointing out there was no guarantee Mr Misa would be successful in obtaining a limited licence.

Analysis

[12]   As Mr Manera submitted for NZ Police, when addressing Mr Misa’s driving history Judge Cameron chose to refer to the number of Mr Misa’s convictions, the fact that the 2016 conviction was that most recent to his 2022 offending for sentence, and

3      Ibid.

4      Governor v Police [2021] NZCA 403 at [11].

that his offending therefore spanned the date range 2006 to 2022. But it is not apparent the Judge therefore failed to observe that most of Mr Misa’s drink driving occurred in 2008 and 2009. His Honour’s analysis of the pattern of Mr Misa’s offending suggests that he took that pattern into account.

[13]   Indeed, that point is supported by Judge Cameron’s observation that the disqualifications following Mr Misa’s five previous drink driving convictions had on the face of it acted, at least to some extent, to reduce the risk of Mr Misa’s repeat offending. While Mr Misa had driven with excess breath alcohol during some of his disqualification periods, he had not done so during others.

[14]   Further, Mr Misa’s apparent low risk of reoffending, the material suggesting a de-escalation in the offending, and his rehabilitative efforts prior to sentencing in 2022, appear to me to be capable of being viewed as supporting the effectiveness of previous orders and of a further order of disqualification in terms of ss 94(1)(b)(ii) and (iii). It is not inevitable Mr Misa will be granted a limited licence to meet his childcare and work commitments. But I do not infer from Judge Cameron’s remarks that his Honour considered Mr Misa to be automatically entitled to such a licence. It would be highly unusual for a District Court Judge used to dealing with limited licence applications on a regular basis to view Mr Misa’s case as any different to those others, requiring determination in light of all the personal circumstances prevailing at the time the application is made.

[15]   In light of the rationale for s 94 expressed above, the Judge in my view was correct to consider it appropriate that Mr Misa be disqualified in the usual way, with his entitlement to apply for limited licence remaining available for the purpose of ameliorating, if successful, the family and work impacts which informed his application. More succinctly, the Judge was correct not to consider a further period of disqualification would be “inappropriate”.5 On that basis, the jurisdiction to exercise the s 94 discretion did not arise.

5      Refer: s 94(1)(b), Land Transport Act 1988

Result

[16]The appeal is dismissed.

Johnstone J