P v Police HC Christchurch CRI 2008 409 123

[2008] NZHC 1299

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2008 409 123

P

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         15 August 2008

Counsel:         A M McCormick for appellant

K B Bell for respondent

Judgment:      15 August 2008

ORAL JUDGMENT OF DOBSON J

[1]      This is an appeal against the refusal by the District Court to exercise the discretion under s 94 of the Land Transport Act 1998, to impose a community based sentence in lieu of the disqualification from driving that is otherwise mandatory on a conviction for driving with excess breath alcohol.

[2]      The appellant (“Mr P  ”) has, overall, what can only be described as a truly awful driving record.  On closer analysis, that might be more a reflection of his distant, rather than his recent, past, but it is nonetheless an impediment to  any

sympathetic consideration of the current appeal.

P V NEW ZEALAND POLICE HC CHCH CRI 2008 409 123  15 August 2008

[3]      According to the record of his convictions, on some 18 occasions Mr P   has been convicted of driving whilst disqualified.  The last of these was in 2000 and there have only been two in the last 10 years.  However, it is a fair assumption that for a substantial period in the 1980s and 1990s he substantially, and quite possibly totally, ignored the constraint the law had imposed – or as Mr McCormick has put it this morning, thumbed his nose at the law that forbade him from driving.

[4]      Mr P   also has, on counsel’s submissions, seven previous convictions before this one for driving with excess breath alcohol stretching back to 1983.  I note that there were five convictions of this type between 1989 and 1998, and in addition one conviction for refusing to provide a sample.   The last excess breath alcohol conviction before the present one appears to have been in 1998.

[5]      As to the circumstances of his offending, an affidavit completed by Mr P   in support of submissions on his behalf at sentencing describes how he had spent the particular day working in Christchurch.  During the course of the day, he deposed he had drunk four cans of beer, and then stopped on his journey back to Blenheim at the Waipara Tavern and had a further jug of beer.  Shortly after that, he was stopped for exceeding the speed limit and breath-tested, revealing a reading of 455 milligrams of alcohol per litre of breath.   He pleaded guilty and it was argued at the sentencing hearing in the Rangiora District Court on 3 July 2008 that his personal circumstances warranted  the  application  of  s 94,  as  the  alternative  to  the  usual  mandatory disqualification.

[6]      Mr  P    is  currently  in  stable  employment  for  an  engineering  and sandblasting business that is operated from premises some 30 minutes’ drive from his home.  His work responsibilities require him to drive in the course of attending at customers’ premises in the wider Blenheim area.  Although not explicitly confirmed in his affidavit, it can be accepted that public transport is not a sufficient alternative, certainly in carrying out his work duties and probably also in his getting to and from his place of work and his residence.  Mr P  ’s affidavit annexed a letter from his employer confirming that a driver’s licence is critical, and that his employment would cease without one.

[7]      The District Court Judge was not prepared to deal with the matter under s 94. Mr P   was disqualified from driving for 13 months, ordered to pay a fine of $900 and Court costs of $130.  The commencement of the period of his disqualification has been suspended until the outcome of this appeal.

[8]      The terms of s 94 are as follows:

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.

(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

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

[9]      The application of the section was thoroughly considered in the decision of Yu v New Zealand Police HC AK CRI-2006-404-273 10 November 2006 Asher J. There, the points were made that the four conditions for exercise of the discretion spelt out in s 94(1)(b) are cumulative, so that the offender has to “satisfy” all of them before the discretion can be exercised in his or her favour.   Also, that there is a considerable degree of overlap in the four criteria cited, and that there are a number of cases where loss of employment has persuaded a Court to exercise the discretion, with the reasoning in Yu citing six previous decisions that were all made on that basis.

[10]     In Yu, the prospect of using s 94 as an alternative had not been raised in the District Court, the Crown did not oppose its application, Mr Yu was found not to have  an  otherwise  seriously bad  driving  record,  and  the  penal  consequences  of disqualification were found to be disproportionate to his offending.    His circumstances were that he was not in employment, but was about to pursue employment which would have been inhibited by the lack of a licence.  In that case, a sentence of community work was imposed in substitution for disqualification.

[11]     Turning  then  to  the  various  factors  under  s 94,  Mr  P    is  certainly extremely well qualified on the requirement under s 94(1)(a)  that  he  have  been disqualified on a previous occasion.  As to the circumstances of this offending and of the offender, Mr McCormick makes the point that he was apprehended speeding in a rural area, with an apparently low level of other road users, but in a state where his breath reading was somewhat more than 10% over the legal limit.  Of itself, I can accept that there were no aggravating circumstances about the seriousness of the driving misconduct on this occasion.

[12]     Mr McCormick was also persuasive in characterising a relative improvement in Mr P  ’s level of offending in the last 10 years.

[13]     The second consideration is as to the effectiveness of previous orders of disqualification.   Mr P  ’s early driving history suggests that he flagrantly disregarded a number of the disqualifications imposed.   Statistically, however, his record appears to be better since around 2000.  In that year, he had his last conviction for driving whilst disqualified.   A potential concern I have canvassed with both counsel is the lack of information on the circumstances in which he avoided disqualification  on  that  occasion.     Although  there  have  been  likely  reasons suggested, I am bound to put the matter to one side.

[14]     So overall, Mr P   is entitled to have regard taken in his favour of the relative improvement in his response to convictions for disqualification.

[15]     The third consideration of the likely effect on the offender of a further order of disqualification does have a particular overlap in the present case with the first criterion.   The main thrust of the appeal is the serious adverse consequences for Mr P  , were he to lose his present job as a result of his inability to drive.  He has not previously enjoyed stable employment, and a realistic prospect is held out that this particular job and his present domestic situation is a significant improvement in settling him in a worthwhile life.

[16]     The Police do not contest the seriousness of those consequences, but rather say  that  the  Judge  did  have  regard  to  these  risks,  and  it  is  inferred  from  the

sentencing notes that the Judge took the view that Mr P   would be likely to get a limited licence.  That is treated as in one sense a lesser deviation from the norm of disqualification, and if it is a deviation that is sufficient to address what would otherwise be unduly punitive consequences of disqualification, then there is sense in dealing with the unduly punitive aspect in that way.   In addition, predictably, the Police say in terms of the appellate onus that they can oppose on the ground that the appellant cannot establish that the discretion was exercised on a wrong basis by the District Court Judge.  That point is made particularly in relation to this aspect, but also to the evaluation of relevant criteria generally.

[17]     I do not treat the approach taken in Yu as elevating a loss of employment that would follow from disqualification to a position of primacy that outweighs the other matters properly taken into account.  For instance, an obvious contrast between the present case and that of Yu is that Mr Yu’s other driving history was relatively unexceptional, whereas here, looked at overall, Mr P  ’s is a cause for real concern.  The importance of the loss of employment is certainly recognised.  It is a question of whether all the factors in this case support the invocation of s 94 or, having regard to the prospect of a limited licence, the other factors are sufficiently strong against it to outweigh what would amount to an additionally punitive outcome where disqualification leads inevitably to a loss of employment.

[18]     The  fourth  consideration  is  the  interests  of  the  public.    Mr  McCormick criticised the relevance attributed by the District Court Judge to the prospect that first, or even second, offenders would likely be outraged if Mr P    was not disqualified when they had been.   He makes the point that second offenders can equally resort to s 94 in the way Mr P   seeks to do.  However, I do not see the way this was cast by the District Court Judge as an irrelevant consideration, but rather  one  aspect  of  the  relative  consideration  of  the  interests  of  the  public. Deterring such behaviour must always be a factor in sentencing.  The interests of the public arise not only in the immediate context of whether  a convicted person’s driving conduct is such that the public ought to be saved from such a convicted person being on the road for a further period, during which they might hopefully come to some appreciation of the privilege that being able to drive represents, but

also  to  the  effectiveness  of  the  deterrent  represented  by the  Court’s  sentencing patterns, given the terms of the relevant statutory provisions being applied.

[19]     Yu includes the following citation from a case on the predecessor of s 94, in Ministry of Transport v Ure HC WN AP79/91 26 June 1991, in which Savage J observed:

It seems to me that the recalcitrant offenders must have it plainly pointed out that unless there (are) very exceptional circumstances, the law is to be observed and, if it is not, then severe and disagreeable sanctions will follow, even if those sanctions seem to be ineffective.  It appears to me that in the overall public interest they must be imposed because they are effective as far as most people are concerned.  Should it appear that if a person made a big enough  nuisance  of  himself,  the  law  would  stop  trying  to  enforce compliance, then it would be destructive of the legal process generally, and also very importantly in my view, be a source of great resentment to other offenders who were treated and punished in a more conventional way.  They might, with some justification, feel there was considerable injustice in the judicial process.

[20]     That approach reflects the dilemma in application of the criteria in the present circumstances.   If one treats Mr P  ’s record statistically, overall, then dealing with him under s 94 in light of such an awful overall driving history undermines any deterrent effect and is indeed likely to bring discredit to its use.  On the other hand, if it is appropriate to treat the worst part of that driving history, prior to the last

10 years, as being of only historical relevance and focus just on those last 10 years, then the public interest could not press so strongly against resort to s 94.

[21]     In the end, I consider that weighing the interests of the public in the fuller circumstances of Mr P  ’s position does justify relegating the history of convictions earlier than the last 10 years as a matter of “past history”.  Indeed, I note that the District Court Judge adopted that approach in his favour.

[22]     Deterrence  is  to  be  balanced  against  the  most  realistic  and  constructive approach to rehabilitation of the offender.  It may be that fortuitously for him, his work and personal circumstances in the last  year enable him to present a more compelling  case  for  rehabilitative  concerns  than  would  have  been  the  case previously.  But that should not be held against him.

[23]     The more conventional relief, however, granted to persons whose convictions lead to disqualification in circumstances likely to jeopardise their livelihood are the provisions for a grant of a limited licence provided for in ss 103 and following of the Act.  Mr McCormick is right that those provisions do not preclude the bringing of an application under s 94, but in cases such as the present, if the most compelling of the factors in favour of invocation of s 94 can be addressed under the limited licence provisions, then it must inevitably be seen by the Court as lessening the justification for resort to s 94.  In addition, Mr McCormick advised from the Bar that Mr P   was able to pursue the s 94 option within the terms of the grant of legal aid, but that he would not qualify for legal aid on any application that becomes necessary for a limited licence.  He suggested that the financial cost of making such an application is an additional burden he should not necessarily have to assume.

[24]     A disqualification has to have been in place for a month before an application can be made, so that at least that period of understanding, and the somewhat further period to process a limited licence, would have to be achieved with his present employer,  but  I understand  that  expectation  to  be  realistic.    There  would  be  a somewhat more detailed focus on the justification for a limited licence in the context of an application and, if Mr P   is able to make out the case, that addresses what would otherwise be the unduly punitive element of disqualification in his circumstances.

[25]     Whilst there can be no guarantee of the success of such an application, and hence the understandable initiative of seeking what I treat to be a larger dispensation from the usual sentencing approach by resort to s 94, that prospect is in the end sufficient to persuade me that the Judge’s approach was correct.

[26]     I do not intend any disrespect to the Judge in not going through the detail of his sentencing notes.  I have had the luxury of written submissions in advance and some time to consider the matter which of course he had to deal with under the pressure of what was probably a crowded list.  In the end, I am entirely satisfied that the approach adopted was correct, as was the outcome.   I accordingly dismiss the appeal.

[27]     As to the mechanics of commencement of the period of disqualification, Mr McCormick makes the reasonable point that he will have to be in touch with Mr P    who  is  working  in  Blenheim,  and  it  is appropriate  for  the  period  of disqualification that has been suspended pending the outcome of this appeal not to

commence until midnight tonight.

Dobson J

Solicitors:

Brandts-Giesen McCormick, Rangiora for appellant
Raymond Donnelly & Co, Christchurch for respondent