Parata v Police

[2016] NZHC 3026

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-000372 [2016] NZHC 3026

BETWEEN

HENARE KAHI PARATA

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	13 December 2016
Counsel:	H N Kim for Appellant H D Benson-Pope for Respondent
Judgment:	13 December 2016

ORAL JUDGMENT OF DOWNS J

Solicitors/Counsel:

H N Kim, Manukau.

Kayes Fletcher Walker, Manukau.

PARATA v POLICE [2016] NZHC 3026 [13 December 2016]

The issue

[1]      Section 94 of the Land Transport Act 1998 invests a Judge with a discretion to substitute a community-based sentence on a defendant who would otherwise be disqualified from driving.   The appellant contends Judge McAuslan erred in not exercising that discretion in his favour.

Background

[2]      The appellant was driving at approximately 1.40 am on 15 May 2016.  Police stopped him for a licence check and random breath test.  The appellant appeared to have been drinking.   An evidential breath test confirmed as much: it revealed a breath alcohol level of 598 micrograms of alcohol per litre of breath.  The appellant told the Police he had consumed 12 beers that evening.  The appellant later resiled from that account to the Probation Officer.   He said he had been feeling unwell, consumed a glass of whiskey followed by cough medicine, and was on his way to the nearby shops to purchase paracetamol when stopped.

[3]      The appellant is 45 years old.  He has an extensive criminal record of 123 convictions, including 25 for driving while disqualified, nine for driving with excess breath alcohol, two for refusing to accompany an enforcement officer, one for refusing to give a blood specimen, and 11 other Land Transport Act-related convictions.

[4]      The appellant’s most recent conviction for driving with excess breath alcohol occurred in 2011.   The appellant had the benefit of a community-based sanction pursuant to s 94 of the Act in relation to that offence.

[5]      Judge McAuslan sentenced the appellant to a term of six  months’ home detention.1   No appeal is brought against this component of the sentence.  However, the Judge declined to impose a community-based sentence rather than disqualifying the appellant from driving for the minimum period of one year and a day.   The

appeal lies against this aspect.

1      Police v Parata [2016] NZDC 21278.

[6]      The Judge considered a variety of matters including the appellant’s family circumstances, his apparent attempts to gain employment, that the appellant had only a restricted licence when he was caught driving, his driving history and the public interest.

The appellant’s case

[7]      The appellant contends the Judge gave undue weight to his driving history, and in particular, failed to give adequate weight to the lapse of time since his last conviction.   The appellant also contends the Judge gave insufficient weight to the appellant’s familial obligations in relation to transport, and failed to give adequate weight to the fact the appellant would need to commence the licensing process afresh.

Analysis

[8]      Section 94 of the Land Transport Act 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.

(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 provision builds on s 30AC of the Transport Act 1962.   There is a significant volume of case law in relation to the provision, and a variety of somewhat different   approaches,   or   at   least   approaches   with   different   emphases.      In Beeston v Police,2 Woodhouse J concluded although there was a perception s 94 was reserved for individuals who were stuck on the wheel of offending, the section had broader  application.     In  Maeva  v  Police,3   Keane  J  offered  a  different  view.

His Honour described the provision as “unambiguously remedial though always to

2      Beeston v Police [2012] NZHC 1064.

3      Maeva v Police HC Auckland CRI-2010-404-402, 11 March 2011.

be exercised, as it says itself, consistent with the public interest, not merely the interests of the offender”.  Dobson J offered a similar view in Wilson v Police, noting s 94:4

… should only justify a variation from the norm where the personal circumstances of the offender, and in particular the rehabilitative prospects, justify affording the offender an opportunity to break the cycle of circumstances contributing to the recidivist offending.

[10]     I  respectfully  endorse  the  approach  of  Keane  and  Dobson  JJ,  for,  the provision makes plain the offender’s interests are but part of the statutory mix. And, too ready resort to s 94 could undermine the efficacy of disqualification as a penalty more generally.

[11]     As an appeal against the exercise of a discretion, the usual principles apply. The appellant must demonstrate reversible error or the decision is plainly wrong.

Undue weight to the appellant’s history

[12]     The appellant submits closer inspection of his record reveals not insignificant gaps between Land Transport Act offending, including a five year hiatus back to

2011, when the appellant was last caught driving with excess breath alcohol.  The difficulty with this aspect of the appellant’s case is that the Judge was mindful of the issue; home detention was imposed because “the lapse since the last traffic-related matter and the historical nature of some of these convictions”.

[13]     Furthermore, since 2000 the appellant has been convicted seven times for driving while disqualified and twice for driving with excess breath alcohol, and the appellant had the benefit of an order pursuant to s 94 in 2011 when he was last caught driving with excess breath alcohol.  No error arises here.

The appellant’s family commitments

[14]     The appellant has a daughter who lives in Kaikohe.  She has two children.  A

second daughter of the appellant has six children—and Child, Youth and Family

Services are involved with that family.  There was evidence before the District Court

4      Wilson v Police [2014] NZHC 3028 at [12].

the appellant has been responsible for driving everyone to where they need to go. Apparently, only he owns a car, and only he has a licence.

[15]     The  Judge  identified  this  aspect  in  her  sentencing  notes,  but  did  not separately address it when turning to s 94.  Obviously, Her Honour did not consider it decisive.  Neither do I.  Home detention will preclude the appellant from driving for six months. Alternative arrangements will be required in the interim. And, these consequences follow naturally from disqualification.   They are not in themselves unusual.  I detect no error.

[16]     The appellant’s remaining contention is that the Judge failed to consider the fact that he would be required to start the licensing process afresh.  This is a factor, however, present in all s 94 applications and one part of the appropriate form of sanction for offending of this kind intended by Parliament.

[17]     Neither is the decision plainly wrong.   The application for a community- based sentence was relatively weak.  The only real factor in its favour concerned the appellant’s family circumstances and their need for transport.    But those circumstances are far from exceptional and are well within the range of outcomes anticipated by the Legislature.

[18]     The appeal is dismissed.

……………………………..

Downs J