P v Police HC Auckland Cri-2009-404-386

[2010] NZHC 160

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2009-404-000386

BETWEEN  P   

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         22 February 2010

Appearances: J B Samuel & CJB Samuel for the Appellant

K Wendt for the Respondent

Judgment:      22 February 2010

ORAL JUDGMENT OF PRIESTLEY J (Appeal against sentence)

Counsel/Solicitors:

J B & CJB Samuel, P O Box 29172, Greenwoods Corner, Auckland 1347. Fax [phone]

K Wendt, Meredith Connell & Co, P O Box 2213, Auckland 1140. Fax: [phone]

P   V NEW ZEALAND POLICE HC AK CRI-2009-404-000386  22 February 2010

The Appeal

[1]      In a judgment delivered in the Auckland District Court on 22 October 2009

Judge J M Doogue imposed on the appellant a sentence of 200 hours community work.

[2]      That sentence flowed from her Honour exercising a discretion favourable to the appellant under s 94 of the Land Transport Act 1998.

[3]      Without going into the case law, that section gives to courts in certain circumstances a discretion to impose some sentence other than a disqualification from holding or obtaining a driver’s licence.

[4]      This appeal challenges the 200 hour sentence imposed.

Background

[5]      The appellant, who is now aged 60, has no previous convictions of a serious nature.   There was one speeding offence 20 years ago.   He has, however, had an unfortunate history of having his driver’s licence suspended as a result of accumulated demerit points.  The history, which I asked to see today, shows that he had been suspended from driving for various periods four times over the past 18 years or thereabouts.

[6]      His most recent suspension, as a result of demerit points, took place in late

March 2009.  This suspension was operative until 22 June 2009.

[7]      Whilst  half  way through  that  suspension  the  appellant  drew  attention  to himself by speeding on Melanesia Road in St Heliers early in the morning (8.03 am), driving his BMW motor vehicle at 67 km/h.   Once he had been stopped and was investigated the fact that he was a suspended driver emerged.

[8]      The appellant was subsequently dealt with by the Auckland District Court for driving  whilst  his  driver’s  licence  was  suspended.     He  was  fined  $400  and disqualified for a period of six months with effect from 27 July 2009.

[9]      It was that disqualification which led to the application under s 94.

Discussion

[10]     Counsel have filed helpful and brief written submissions which they have amplified this afternoon.   It is common ground between them that the 200 hours community work imposed is clearly excessive.   I agree with that assessment, particularly  when  considering  other  authorities  to  which  I have  referred,  which brought the s 94 discretion into play.

[11]     Mr Samuel has helpfully told me the arrival of the Judge’s decision caught him somewhat by surprise.  He was of the view that, if successful in invoking the discretion, there would be an opportunity to discuss the appropriate period of community work which should be imposed.   Thus counsel’s submissions in the lower court did not contain any specific suggestion about an appropriate length of time.  To some extent, therefore, her Honour was flying blind.

[12]     I note that in terms of the Sentencing Act 2002 a community work sentence must not be less than 40 hours and cannot exceed 400 hours.  The 200 hours imposed is thus half way to the permitted maximum.

[13]     Of  some  relevance  to  the  exercise  of  the  discretion  is  s 94(3)(c)  which provides:

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.

[14]     Counsel  have  referred  me  to  various  authorities.    The  ones  which  have exercised them the most are: Yu v New Zealand Police (HC Auckland CRI-2006-

404-000273, 10 November 2006, Asher J);   Pannu v New Zealand Police (HC

Auckland, CRI-2009-404-000084, 2 June 2009, Keane J); Hurlstone v New Zealand

Police (HC Gisborne, CRI-2008-416-000017, 15 December 2008, Stevens J).

[15]     It is usually unhelpful to try to argue by analogy on a case by case basis to reach  an  appropriate  sentence.     Nonetheless,  those  three  authorities  form  a respectable basis for Ms Wendt’s concession that the appropriate range of a community work sentence would be between 60 and 75 hours.

[16]   Mr Samuel considers that the appropriate sentence should be 40 hours community work.  He reaches that figure, not in any strict arithmetical way, but by observing that because the minimum disqualification was imposed on the appellant, the appropriate sentence substituted under s 94 should not stray too far from the 40 hour minimum sentence prescribed by the Sentencing Act.

[17]     He also points out that, at the time the appellant was apprehended, he had already served half of the three month suspension which he was obliged to obey.

[18]     I note that, rather than sit back and undertake no community work whilst the appeal was pending, the appellant has already performed just over 20 hours of the sentence imposed.   He tells me this work has been carried out at the Auckland Maritime Museum.

[19]     I also note, there being some reference to this in the lower court, that at the time of his offending the appellant’s personal life was in some turmoil

Result

[20]    Any discretionary sentence imposed in this area must have a degree of arbitrariness about it.   There really are very few comparable cases.   Although the driving history was different and more alarming, there are some similarities with Pannu (where Keane J imposed a 75 hour community work sentence).  Mr Samuel’s preferred authority was Yu where Asher J, clearly disquietened by the effect of the s 94 discretion on road safety and denunciation issues, came in with a substituted penalty of 50 hours community work.

[21]     As Mr Samuel correctly pointed out the s 94 discretion and the resulting substituted sentence is, in terms of the structure of the Land Transport Act, very much an indulgence.  The appellant is a mature man.  His Achilles heel on the road (although to date there have been no serious mishaps) is clearly speeding.  There is an element of defiance or risk taking in a person already suspended because of an accumulation of speeding demerit points, yet again speeding whilst he was a suspended driver.

[22]     The indulgence, however, is one to which the appellant was entitled.   This route was effectively forced upon him because the current perception by the New Zealand Police is that limited licences are not available to drivers whose licences are suspended.

[23]     Be that as it may, I consider that in fixing an appropriate community work sentence the aspects of denunciation and deterrence need to be sheeted home to the appellant.  I also consider that the s 94 (3)(c) factor must be weighed so that the six month disqualification imposed initially in this case is not lost sight of.

[24]     In short I consider that Mr Samuel’s submissions come in too low and Miss Wendt’s submissions come in slightly too high.   The appropriate sentence in my judgment should be one of 55 hours community work.

Orders

[25]     The 200 hour community work sentence imposed in the Auckland District

Court on 22 October 2009 is quashed.

[26]     A sentence of community work of 55 hours is substituted (it being noted and an  administrative  matter  for  the  Department  of  Corrections  that  a  considerable portion of that sentence has already been served).

..............................… Priestley J