Nicholson v Police
[2021] NZHC 960
•3 May 2021
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
CRI-2021-463-20
[2021] NZHC 960
BETWEEN ETHAN JOHN NICHOLSON
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 3 May 2021
(Heard at Rotorua)
Appearances:
T Clee (via VMR) for the Appellant D McWilliam for the Respondent
Judgment:
3 May 2021
ORAL JUDGMENT OF GAULT J
Solicitors / Counsel:
Mr T Clee, Barrister, Auckland
Mr D McWilliam, Pollett Legal Ltd, Office of the Crown Solicitor, Tauranga
NICHOLSON v POLICE [2021] NZHC 960 [3 May 2021]
[1] Mr Nicholson appeals against his sentence of 60 hours’ community work and disqualification from holding or obtaining a driver’s licence for one year, imposed by Judge T R Ingram in the District Court at Tauranga on 22 February 2021,1 following his guilty plea to a charge of driving while his licence was suspended or revoked.2
[2] Mr Nicholson only challenges the period of disqualification. He does so on the grounds that the period of disqualification was one year and one day and in any event the Judge should have exercised his discretion under s 94 of the Land Transport Act 1998 (the Act) to substitute a community-based sentence for the period of disqualification, that being the least restrictive outcome appropriate in the circumstances.
Facts
[3] On 24 December 2020, Mr Nicholson was stopped by police for an unrelated traffic matter while he was driving northwards on the Waikato Expressway near Meremere.
[4] Mr Nicholson had been convicted of driving while suspended or disqualified on previous occasions in 2009 to 2020 – in June 2009, May 2010 and September 2012. Then, on 12 November 2020 he had been suspended from holding a driver’s licence for three months for excess demerit points.
District Court decision
[5] Having referred to Mr Nicholson’s prior convictions briefly, and the fact he is self-employed, the Judge sentenced Mr Nicholson to 60 hours’ community work and disqualified him from holding or obtaining a driver’s licence for one year “starting now,”3 that is, on 22 February 2021.
1 New Zealand Police v Nicholson [2021] NZDC 4186.
2 Land Transport Act 1998, ss 32(1)(c) and 32(4).
3 New Zealand Police v Nicholson [2021] NZDC 4186 at [3].
Further evidence
[6] Mr Nicholson seeks to adduce further evidence on appeal alleging counsel error (that he was not advised that to avoid disqualification he would need to apply under s 94 rather than seek a limited licence) and addressing the s 94 factors. Mr McWilliam, for the Police, does not oppose the admission of the fresh evidence. He has, however, filed an affidavit in response dealing with counsel error. I admit the further evidence in the circumstances.
Approach on Appeal
[7] The starting point is that to succeed on a first appeal against sentence, the appellant must satisfy the appeal court that there has been an error in the imposition of the sentence and that a different sentence should be imposed.4 The appeal court will intervene if the sentence is manifestly excessive or wrong in principle.5 It will not ordinarily intervene where the sentence is within the range that can be properly justified by accepted sentencing principles. The appeal court’s focus is on the final sentence imposed rather than the process by which the sentence was reached.
[8] Here, the Judge was not asked to substitute a community-based sentence for the period of disqualification under s 94. However, this Court has taken the view that it has the power to hear an application for the exercise of the s 94 discretion even where that issue was not raised in the District Court at first instance,6 though in some cases has considered it more appropriate to quash the sentence and remit the matter to the District Court for further consideration.7 Either course of action conforms with the approach applicable on appeal, as set out above, and this Court’s powers on a successful first appeal against sentence.8 In these circumstances, a relatively lenient attitude may be adopted to the admission of fresh evidence on the appeal. Here, Mr McWilliam does not oppose the Court considering s 94 de novo. Thus, while the ordinary test on an appeal against sentence applies, the question, in essence, is whether an order under s 94(3) ought to have been made taking into account the fresh evidence.
4 Criminal Procedure Act 2011, ss 244, 250(2) and (3).
5 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.
6 Thompson v Police [2017] NZHC 2347; Reddy v Police [2020] NZHC 197.
7 See, for example, Nair v Police [2014] NZHC 2859.
8 Criminal Procedure Act 2011, s 251(2).
Statutory scheme
[9] It is convenient at the outset to refer to the relevant provisions of the Act. Section 5 prohibits a person from driving a motor vehicle on a road if a person does not hold an appropriate current driver licence, or if they have been disqualified from holding or obtaining a driver licence, or if their licence has been suspended or revoked.9 The section further provides that a person who is disqualified from holding a driver licence may not obtain such a licence,10 and that a person whose licence is suspended may not hold or obtain a licence.11
[10] Section 32(1) provides that a person who drives while disqualified from holding or obtaining a licence, or whose licence was at the time suspended, commits an offence. Pursuant to s 32(3), for a first or second offence against s 32(1), a person is liable to a maximum of three months’ imprisonment or a fine not exceeding $4,500 and must be disqualified from holding or obtaining a driver licence for six months, or longer. Pursuant to 32(4), for a third or subsequent offence against s 32(1), as applied in Mr Nicholson’s case, the maximum penalty increases to two years’ imprisonment or a fine of $6,000, and the mandatory minimum period of disqualification to one year.
[11] A period of disqualification starts, subject to any specific provision of the Act or order of the court to the contrary (neither of which arises here), on the day on which the order was made.12 That this means the disqualification is retrospective to the beginning of that day is clear from s 85(2), which provides that the person did not commit an offence because they drove a vehicle on that day before the making of the order.
[12] It is of significance whether, on a third or subsequent conviction, a person is disqualified from holding or obtaining a licence for 12 months (such as for one year and one day). Under s 83(1), where a person is disqualified from holding or obtaining a licence for more than 12 months, the person’s licence remains “of no effect after the disqualification ends” until the person applies to the New Zealand Transport Agency
9 Land Transport Act 1998, ss 5(1)(a) and (c) and 5(3).
10 Section 5(2).
11 Section 5(3).
12 Section 85.
for a new licence and completes any courses, tests, or examinations required by the Agency. This is different from persons disqualified for one year or less, whose licences are (pursuant to s 82(1)) suspended during the period of disqualification, but then automatically restored.
[13] Here, the Judge imposed the minimum period when he said one year “starting now”.
[14] The provisions of s 32(3) and (4) regarding mandatory disqualification must be read in conjunction with ss 94(1) to (3). These relevantly provide:
(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.
(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) […]
(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.
[15] Sections 94(1) to (3) are disapplied pursuant to s 94(4) in certain circumstances that are not applicable here.13
Counsel error
[16] The evidence indicates that Mr Nicholson was advised about s 94 before his sentencing, but I accept it is possible he was unaware he could not apply for a limited licence. That appears to be the explanation for his failure to seek, or decision not to seek, a s 94 substitution at sentencing. It appears limited licence was not discussed so the complaint is one of omission. Mr McWilliam does not concede there was counsel error, and I am not satisfied that there was but, in any event, it is common ground that I should consider s 94 afresh.
Substitution under s 94 – applicable principles
[17] Disqualification is the ordinary consequence and as Lang J noted in Thomas v Police,14 the public interest will generally favour a period of disqualification being imposed. But as Mr Nicholson had previously been disqualified from driving, the Judge could have imposed a community-based sentence if satisfied it was inappropriate to order disqualification having regard to the statutory factors set out in s 94(1)(b).
13 That is, where ss 63 or 65 of the Act apply. Those provisions relate to offences against ss 56-62 (which relate to drink and drug driving and driving causing injury or death) that are repeat offences or involve vehicles being used in a transportation service. Sections 94(1)-(3) are also disapplied, pursuant to s 94(4), where a person has been given an alcohol interlock sentence under s 65AC(1). Also, the discretion as to substitution is unavailable where a person is disqualified from obtaining a limited licence under ss 103(2)(a), (b), or (d), which serve to disqualify from holding a limited licence persons who repeatedly offend in a particular manner within a specified period. Those provisions are also not engaged here – though Mr Nicholson is prohibited (under s 103(2)(c)) from obtaining a limited licence as a person disqualified from holding or obtaining a licence on his conviction for driving while disqualified.
14 Thomas v Police HC Tauranga CRI-2010-470-15, 13 May 2010, at [29]-[30].
[18] As to whether disqualification is inappropriate having regard to the statutory factors, the cases make clear that substitution under s 94 is available not only in cases where it is appropriate to break a cycle of recidivism but also where the interests of the offender and the public are otherwise better served by a community-based sentence, for example, to avoid loss of employment or other particular hardship.15
[19] On the other hand, disqualification has been upheld in cases where this Court considered the deterrent purposes of a sentence of disqualification were required in the public interest in the circumstances of the case.16
[20] The Court is required to make a choice of a penalty that more effectively meets the purposes of sentencing.17 These, as s 7 of the Sentencing Act 2002 reflects, are of course multifaceted.
Is disqualification inappropriate here?
The circumstances of the case and of the offender
[21] Turning to the statutory factors. First, the circumstances of the case and of the offender. Mr Nicholson’s affidavit states that he is a 29 year old man with experience working as a builder who has returned to Auckland recently, having been living in Tauranga at the time of the offence, because of a downturn in construction work since May 2020. Since his return to Auckland, he has gained employment with Auckland Transport, working in maintenance, which job requires him to work irregular hours day-and-night at locations across the Auckland public transport and roading networks. Often, he explains, he is required to work at night when maintenance activities are undertaken to minimise impact on transport networks. I infer he would be unable to
15 Yu v Police HC Auckland CRI-2006-404-273, 10 November 2006, at [7]-[8], where Asher J, noting that disqualification would impact severely on Mr Yu’s prospective employment as an electrician, substituted 50 hours’ community work for six months’ disqualification; Wadsworth v Police [2014] NZHC 3302 at [18]; Skelton v Police [2015] NZHC 1735, where there was a significant public interest in Mr Skelton’s being able to participate in the upbringing of his child, access to whom depended on his being able to drive. That, together with the desirability of Mr Skelton’s being made able to support himself by gaining employment in the transport industry, and the relatively minor character of his relevant land transport offending, pointed in favour of substitution; Burgess v Police [2021] NZHC 362.
16 For example, Power v Police HC Christchurch CRI-2008-409-123, 15 August 2008 and Parata v Police [2016] NZHC 3026.
17 Stacey v Police [2018] NZHC 3280 at [24].
rely on public transport to get to and from work, given the hours involved. Also, he is required to drive a van to transport his tools. He says that without a driver’s licence he will be unable to maintain his current employment and will suffer hardship as a result. The correspondence and terms of his employment attached to his affidavit are consistent with this. Any employment he could gain with his skill-set, he explains, would require him to transport tools about. He has been able to maintain his employment, and meet his financial obligations, only because his disqualification has been suspended pending appeal.
[22] The move to Auckland has also allowed him to live closer to his 11 year old daughter from a previous relationship, who lives with her mother in Papakura. He explains that the reason he was found driving northwards on the Waikato Expressway on 24 December 2020 was because he wanted to see her before Christmas, as she was going to the South Island with her mother for Christmas and over the New Year’s holiday. As a consequence of being stopped while making that trip, Mr Clee advises from the bar, Mr Nicholson has not seen his daughter since late last year. Without employment, Mr Clee submits, Mr Nicholson will be unable to see his daughter.
[23]I accept Mr Nicholson’s circumstances weigh against disqualification.
The effectiveness or otherwise of a previous order of disqualification
[24] This is a neutral factor. As indicated, this is not a case where substitution is required to avoid a “wheel of offending”,18 albeit Mr Nicholson may have been in such a position a number of years ago.
The likely effect on the offender of a further order of disqualification
[25] As indicated, I accept Mr Nicholson’s circumstances weigh against disqualification. The likely effect of disqualification is loss of his employment and difficulty seeing his daughter.
18 As Tipping J put it in Grimwood v Ministry of Transport HC Christchurch AP184/91, 16 August 1991.
Public interest
[26] As indicated, the public interest will generally favour a period of disqualification being imposed when dealing with repeat offenders. This is Mr Nicholson’s fourth conviction for driving while disqualified or suspended. Disqualification is consistent with purposes of sentencing such as promoting accountability and a sense of responsibility for offending, denunciation and deterrence.
[27] But I consider in this case these purposes can be achieved with a community- based sentence. I also consider that there is a public interest in enabling Mr Nicholson to continue his work and avoid adverse financial and family consequences. Mr McWilliam acknowledged that Mr Nicholson was not stopped for poor driving on this occasion. Since Mr Nicholson’s last disqualification arose as a result of excess demerit points, it is encouraging that he has paid to attend a defensive driving course this month, which I understand starts today.
Conclusion
[28] On the material before the Judge, no error has been identified. The sentence imposed was well within the allowable range and was not manifestly excessive. But I consider that based on the further evidence, disqualification was inappropriate and a community-based sentence was appropriate.
[29] However, I do not accept Mr Clee’s submission in his written submissions that the disqualification should be quashed with no uplift in the hours of community work. As Mr Clee acknowledged today, in previous cases, additional periods of community work have been imposed where substitution has occurred on appeal.19 The increase may be reduced where a substantial period of disqualification has already been served pending appeal. That is not the case here although the disqualification was in place for a period of weeks before the sentence was suspended pending appeal.
See, for example, Thomas v Police HC Tauranga CRI-2010-470-15, 13 May 2010; Police v Body
[2013] NZHC 1586; Collett v Police (no 2) [2017] NZHC 1012; Pou v Police [2018] NZHC 787.
[30] Mr Nicholson evidently can undergo community work as he is doing so under the existing sentence.
[31] In the circumstances, I consider an additional 60 hours of community work is appropriate in substitution for disqualification in this case.
Result
[32]The appeal is allowed.
[33] The sentence of disqualification from holding or obtaining a driver’s licence for one year is quashed. In its place, I substitute an additional 60 hours of community work pursuant to s 94(3) of the Land Transport Act 1998.
[34]The appeal is otherwise dismissed.
Gault J
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