Police v Body
[2013] NZHC 1586
•27 June 2013
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
CRI 2013-443-007
CRI 2013-443-005
CRI 2013-443-008
CRI 2013-443-006
CRI 2013-443-004 [2013] NZHC 1586
BETWEEN NEW ZEALAND POLICE Appellant
ANDTERRANCE WILLIAM JAMES BODY PETER ANDREW CHRISTENSEN ROBYN MARTIN
NIKKI ANN HENERIATA KOMENE DOUGLAS JOHN CAPSTICK Respondents
Hearing: 10 April 2013
Appearances: S Law for the Appellant
A Dallison for Body and Christensen
J Hannam for Martin and Komene
No appearance for Capstick
Judgment: 27 June 2013
JUDGMENT OF MALLON J
NEW ZEALAND POLICE v BODY, CHRISTENSEN, MARTIN, KOMENE, CAPSTICK [2013] NZHC 1586 [27 June 2013]
Contents
Introduction ....................................................................................................................................... [1] The statutory discretion .................................................................................................................... [2] The particular cases ........................................................................................................................ [13]
Body.............................................................................................................................................. [13] Facts......................................................................................................................................... [13] Personal circumstances ............................................................................................................ [14] District Court sentence ............................................................................................................ [15] Submissions ............................................................................................................................. [17] My assessment ......................................................................................................................... [19]
Komene ......................................................................................................................................... [20] Facts......................................................................................................................................... [20] Personal circumstances ............................................................................................................ [21] District Court sentence ............................................................................................................ [22] Submissions ............................................................................................................................. [24] My assessment ......................................................................................................................... [26]
Christensen ................................................................................................................................... [30] Facts......................................................................................................................................... [30] District Court sentence ............................................................................................................ [32] Submissions ............................................................................................................................. [34] My assessment ......................................................................................................................... [36]
Martin ........................................................................................................................................... [44] Facts......................................................................................................................................... [44] Personal circumstances ............................................................................................................ [45] District Court sentence ............................................................................................................ [46] Submissions ............................................................................................................................. [48] My assessment ......................................................................................................................... [50]
Capstick ........................................................................................................................................ [51] Facts......................................................................................................................................... [51] Personal circumstances ............................................................................................................ [52] District Court sentence ............................................................................................................ [55] Submissions ............................................................................................................................. [56] My assessment ......................................................................................................................... [58]
Result ................................................................................................................................................ [61]
Introduction
[1] These five appeals were heard together. They concern the Court’s discretion to substitute an order for disqualification from holding or obtaining a driver’s licence with a community-based sentence.1 The appeals have been brought by the informant2 because the District Court Judge (Judge Adeane) who was hearing these matters in New Plymouth on a particular day (20 December 2012) approached his
discretion by substituting the disqualification order with community work on all the matters before him where there was no offence committed other than driving while disqualified.3 The informant considers that the approach taken by this Judge on this day was not a proper approach to the discretion. The informant says that the proper exercise of the discretion is dependent on the relevant factors that are set out in the statutory provision under which the discretion is exercised as they apply to the
particular facts. In respect of two of the appeals the informant also says that the sentence was manifestly inadequate.
The statutory discretion
[2] A person commits an offence if the person drives a motor vehicle on a road while disqualified from holding or obtaining a driver licence.4 If this is a first or second offence of driving while disqualified the court “must” order that the person be disqualified for six months or more.5 If this is a third or subsequent offence the court “must” order that the person be disqualified for one year or more.6 In each
case this is in addition to any other penalty that may be imposed.7
1 As these appeals are against the exercise of a discretion, there must be an error of principle, a failure to take into account relevant considerations, the taking into account of irrelevant considerations or the decision must be plainly wrong for an appellant to be successful: Yorston v New Zealand Police HC Auckland CRI-2010-404-164, 14 September 2010 at [11]-[15]; Hall v New Zealand Police HC Hamilton CRI-2009-419-76, 9 December 2009 at [32].
2 As they are informant appeals they required the consent of the Solicitor-General, which was given.
3 Although no information was put before me to show that this was the case, I was informed by counsel that Judge Adeane’s approach differed from the approach usually taken by other District Court Judges in New Plymouth and the sentencing principle of consistency underlay the appeals.
4 Land Transport Act 1998, s 32(1).
5 Section 32(3)(b).
6 Section 32(4)(b).
7 Section 32(3)(a) providing for a maximum fine of $4,500 or three months’ imprisonment for a first or second offence of driving while disqualified, and s 32(4)(a) providing for a maximum fine of $6,000 or two years’ imprisonment for a third or subsequent offence of driving while disqualified.
[3] This mandatory disqualification is, however, subject to two provisions. One of those is s 81 of the Land Transport Act 1998 which empowers the court not to impose disqualification where there are “special reasons relating to the offence”.8
The other (separate) provision is s 94 of the Land Transport Act.9 It is accepted on
behalf of the parties to these appeals that, although it was not expressly referred to, s 94 was the provision under which the District Court Judge decided not to impose disqualification orders, even though it was not expressly referred to.
[4] The statutory discretion in s 94 is 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.
8 Section 81.
9 In Blake v New Zealand Police HC Nelson T8/02, 31 May 2002 Neazor J discussed the relationship between these provisions.
(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).
[5] It is well understood that it may be inappropriate to order disqualification where a person is caught in a cycle of offending of driving while disqualified for which continued extensions of disqualification orders are imposed. Imposing a community-based sentence can break that cycle.10 But the section is intended to apply not just to people who may be caught in a cycle of disqualified driving
offending11 but to others who meet the criteria in the section.12 For example, the
10 Mitchell v Police (1989) 5 CRNZ 190 (HC) at 193 cited in Lambert v Police HC Rotorua
AP62/90, 11 October 1990 at 6 (discussing the predecessor of s 94).
11 Maeva v New Zealand Police HC Auckland CRI-2010-404-402, 11 March 2011 at [30]-[34].
12 Jukes v Police HC Christchurch AP 228/94, 5 October 1994; Rodgers v Ministry of Transport
[1989] 3 NZLR 321 (HC); Beeston v New Zealand Police [2012] NZHC 1064 at [11]-[25].
public interest in a person maintaining their employment may make a further period of disqualification inappropriate.13
[6] The relevant criteria in s 94 are broadly framed. In comparison with s 81 which requires “special” reasons relating only to the offence, the s 94 discretion essentially enables the Judge to take into account anything that might be relevant to whether it is appropriate to order disqualification and appropriate to instead impose a community-based sentence. It is not unexpected therefore that variations in approach as between Judges may arise. Provided the statutory criteria are properly considered the fact that two Judges might reach different views on whether a
community-based sentence should be substituted does not give rise to error.14
[7] The starting point is that disqualification is to be ordered. But that starting point is subject to the discretion to substitute that with a community-based sentence. That discretion is a broad one. It requires only that the circumstances make disqualification inappropriate and a community-based sentence appropriate. In Lambert v Police the Judge went as far as to say “it will usually be better that the
penalty take some form other than an additional disqualification”.15 That was the
view of the Judge in the present cases under appeal where there were no aggravating features in respect of the driving.16
[8] An issue which arises in the present appeals is whether the Judge was required to consider the offending for which the disqualification order was imposed.
The submission the informant makes is that, where the disqualification was imposed
13 Jukes v Police, above n 12.
14 As is said in Maeva v New Zealand Police, above n 11, at [28] “In these ways s 94 is highly specific. It is also very abstract. It is not animated by any statement of purpose. It does not say why a further sentence of disqualification might be inappropriate or a community based sentence appropriate. The result is that the four factors to which I have referred, most pointedly those
going to past or future compliance with orders for disqualification, are capable of being
understood in diametrically opposed ways.”
15 Lambert v Police, above n 10, at 6. Compare with Yu v New Zealand Police HC Auckland CRI-
2006-404-273, 10 November 2006 at [24] and [28], where it was said that there was an advantage in the public in it being understood that the usual punishment will be a further period of disqualification and this effective sanction would be undermined if the discretion is exercised too readily.
16 Note that, although s 94 is not available to driving offences that fall within ss 63 or 65 or where an offender is prohibited from applying for a limited licence under s 103(2)(a), (b) and (d), there are many driving offences that will fall within it that involve more than simple driving while disqualified.
for driving that caused or involved a serious risk of injury or death to others, the public interest in keeping the offender off the road is high. It is submitted that this supports a further period of disqualification to deter further disobedience of the disqualification order. The further disqualification thereby seeks to ensure that a person who is a danger on the roads refrains from driving.
[9] In considering that submission the decision in Lambert v Police is helpful. In that case the offender, although only 19 years of age, had seven convictions for driving offences which included three charges of driving in a dangerous manner. The District Court Judge described the offender as “inordinately prone to putting people’s safety on the road at risk”. On a charge of driving while disqualified the Judge sentenced him to six months’ imprisonment and imposed a one year disqualification order for reasons of public safety. Both the sentence and the disqualification order were overturned on appeal.
[10] In considering the appeal the High Court Judge described the purpose of an order for disqualification as follows:17
It does seem to me, however, that upon those earlier convictions arising from the conduct which endangered the safety of the public, the appellant had already been penalised. He had already been fined. He had already received disqualifications. Those earlier penalties were no doubt influenced in very great measure by the need to protect the public and properly so but the offence of driving while disqualified is of a different nature. The fact that an offender is driving while disqualified attracts punishment not because there is any fresh dangerous conduct but rather because a Court's sanctions are meaningless unless they are obeyed. A penalty is needed to ensure that the earlier sentence is carried out and to maintain respect for the law but not because of any fresh fears for the safety of the public.
[11] The Judge considered that it was better to give the offender the opportunity to experience a community-based sentence before sending him to prison and that imposing a further term of disqualification would simply compound the problem. He said: “The object of sentencing for disqualified driving is purely to punish. It is
not to remove an offender from the roads for the safety of the public.”18
17 Lambert v Police, above n 10, at 5.
18 At 7.
[12] I agree that this must be correct in situations where the offender is habitually driving in breach of an order of disqualification. In those cases imposing further terms of disqualification is not deterring the offender. Punishment for the disobedience in the form of a community-based sentence is likely to be better, particularly where the offender is suitable for community work or other community- based sentence and there are no other impediments to imposing such a sentence. But even where the offender is not habitually driving while disqualified the purposes of denunciation, deterrence and protection of the public may be better served by a community-based sentence rather than a further period of disqualification. In the words of s 94 that may make disqualification “inappropriate” and a community- based sentence “appropriate” in the circumstances.
The particular cases
Body
Facts
[13] On 21 June 2012 Mr Body was disqualified from driving for one year and one day. While that disqualification was in force, on 15 December 2012 at about
10.45 pm Mr Body was stopped by the police for a minor traffic infringement. He admitted to the police that he was driving while disqualified. In explanation he said that he was driving home from visiting a sick relative. He pleaded guilty to a charge of driving while disqualified
Personal circumstances
[14] Mr Body was aged 44 years at the time of the offending. He has a reasonably lengthy list of previous convictions. These include a number of convictions for driving with excess breath/blood alcohol as follows:
(a) 21 June 2012: four months’ home detention and disqualification for one year and one day for offence of driving with excess breath alcohol (third or subsequent) committed on 8 February 2012;
(b)3 October 2001: four months’ imprisonment (with leave to apply for home detention) and disqualification for one year for offence of driving with excess breath alcohol (third or subsequent) committed on
5 August 2001;
(c) 14 August 1998: four months’ periodic detention and disqualification for one year for offence of driving with excess breath/blood alcohol on 17 July 1998;
(d) 20 July 1992: 100 hours’ community work for driving while
disqualified on 17 July 1992;
(e) 12 May 1992: 100 hours’ community work and disqualification for eight months for driving unlicensed with excess breath/blood alcohol on 12 April 1992;
(f) 19 January 1988: fine and disqualification from driving for nine months for driving with excess breath/blood alcohol on 5 January
1988 and on 24 December 1987.
District Court sentence
[15] On 20 December 2012, on the charge of driving while disqualified on
15 December 2012, Mr Body was sentenced in the District Court to 50 hours’ community work and confiscation of his motor vehicle was ordered.19 The Judge’s sentencing remarks were as follows:
Mr Body, yet another person committing an offence of driving while disqualified. He has no previous convictions for that. It is certainly laid as a matter with a maximum sentence of three months’ imprisonment.
There were no aggravating features apart from the obvious one; that he had been disqualified for a long period previously. Absent those I do not think it desirable that his disqualification be further extended. He is reminded that he remains disqualified until the middle of 2013. The s 129 application is well made and is granted.
19 New Zealand Police v Body DC New Plymouth CRI-2012-043-3157, 20 December 2012.
The defendant is sentenced to 50 hours community work with the added penalty effectively of confiscation of his motor vehicle; the particulars being a Holden motor vehicle, registration number BUH887.
[16] It can be seen that the relevant factors the Judge identified were that: (a) Mr Body had no previous convictions for disqualified driving;
(b)the only aggravating feature is that Mr Body has been disqualified for a long period previously;
(c) Mr Body remains disqualified until the middle of 2013.
Submissions
[17] The informant says that this is not a proper exercise of the discretion under s 94. The informant submits that the Judge should have but did not take into account the reason why Mr Body was disqualified previously (driving with excess breath alcohol). The informant does not accept that the order for confiscation of Mr Body’s vehicle is relevant to the issue of whether disqualification should be imposed because, although it will take away Mr Body’s most direct temptation to drive, he is likely to have access to other vehicles. The informant does accept that it is relevant that Mr Body has complied with previous lengthy periods of disqualification.
[18] Counsel for Mr Body submits that the Judge was correct to exercise his discretion not to impose a further period of disqualification because:
(a) there was no aggravating factor in the driving (other than a minor traffic infringement);
(b)previous orders of disqualification had been effective, and in respect of the present order there had been compliance with the disqualification for six months;
(c) Mr Body still had a further period of disqualification of six months left to go;
(d)Mr Body is not a very serious danger to the public because he has completed the “one for the road” programme and completed his sentence of home detention and the public interest (denunciation, deterrence and public safety) is met through the community work imposed, the confiscation of Mr Body’s car and that Mr Body remains disqualified for a period of six months.
My assessment
[19] Although the District Court Judge did not say so, it is apparent that he was exercising the discretion under s 94. The Judge was not required to explicitly refer to all the matters in s 94(1)(b) provided he had regard to them. The Judge did not refer to the reason for the previous periods of disqualification. Although that was potentially relevant to the public interest of ensuring that drivers who are a danger to the public adhere to disqualification orders, balanced against that were the matters referred to by Mr Body’s counsel. These were essentially captured in the Judge’s brief remarks. The Judge erred when he said that Mr Body had no previous convictions for driving while disqualified (because he has one conviction for driving while disqualified in 1992). But that error makes no material difference because that offence occurred over a decade ago and cannot have been particularly serious since a community-based sentence was substituted for disqualification under the predecessor of s 94. The Judge was entitled to take the view that denunciation for the disobedience, and deterrence and protection of the public were appropriately met by the community work imposed and the confiscation of the car. The latter seems more likely to deter Mr Body from driving while disqualified in the future than a further disqualification term. I consider that the Judge was not wrong in the circumstances to regard a further period of disqualification as inappropriate and a community sentence appropriate.
Komene
Facts
[20] On 5 September 2012 Ms Komene was disqualified from driving for six months. While that disqualification was in force, on 30 November 2012 Ms Komene
was driving her vehicle was stopped by police. She failed to produce her driver’s licence. A driver licence check revealed that she had been disqualified from driving. In explanation Ms Komene said she was going to pick up her cousin who could drive and then she was going to go to her doctor.
Personal circumstances
[21] Ms Komene pleaded guilty to a charge of driving while disqualified. She was
37 years old at the time of the offence. Her criminal conviction history is as follows:
(a) 5 September 2012: 75 hours’ community work, disqualified from driving for 6 months and reparation ordered for driving with excess breath alcohol level (limit 400 – level 578) and operating a vehicle carelessly on 10 June 2012;
(b)19 May 2011: disqualified from driving for 6 months for driving with excess breath alcohol (limit 400 – level 667) on 10 April 2011.
District Court sentence
[22] On 20 December 2012 Ms Komene was sentenced in the District Court, on the charge of driving while disqualified on 30 November 2012, to 40 hours’ community work.20 The Judge’s sentencing remarks were as follows:
Ms Komene has pleaded guilty to a charge of disqualified driving. She was out going about the household chores at 10 o’clock in the morning when stopped by a police check. She was found to be disqualified from an earlier occasion.
In the circumstances, there being no aggravating features but the obvious one, she is ordered to do 40 hours of community work cumulative on her present sentence. No further disqualification is imposed.
You remain disqualified however, you understand that? It is just a raffle as to which Judge you get, Ms Komene. Someone might come up from Christchurch and give you two years in jail for the next time round.
20 New Zealand Police v Komene DC New Plymouth CRI-2012-043-3023, 20 December 2012.
[23] The Judge therefore decided that it was inappropriate to order disqualification because this was simply a case of someone driving while disqualified without aggravating features.
Submissions
[24] The informant submits that the Judge failed to take into account important relevant considerations. Those considerations include that:
(a) the disqualification was imposed in respect of driving where safety to the public was a relevant public interest;
(b)Ms Komene did not appear to have a good explanation for driving in breach of the disqualification order;
(c) the disqualification order was for a relatively short period;
(d)Ms Komene was driving in breach of that order within a relatively short time of its imposition;
(e) there is a public interest in consistency in sentencing (the Judge’s last comments acknowledging that there is not consistency in sentencing for this type of offending).
[25] Counsel for Ms Komene submits that the Judge was not wrong to substitute disqualification for community work because:
(a) other than breaching the disqualification order, the driving was innocuous;
(b) Ms Komene had no other convictions for driving while disqualified;
(c) the public interest in prohibiting Ms Komene from driving because she had driven with excess breath alcohol was met by the disqualification orders imposed for that offending;
(d)the Judge was consistent in respect of all the similar offending that was before him that day.
My assessment
[26] The Judge’s sentencing remarks in this case highlight what appears to have been the Judge’s approach to matters of this kind. That is, that community work better serves sentencing principles and purposes than ordering a further period of disqualification when the driving is otherwise innocuous. It does not appear that anything else in particular was advanced as to why a further period of disqualification was inappropriate.
[27] Had disqualification been imposed in Ms Komene’s case she would have been the only one of the five appearing before the Judge on 20 December 2012 to have been disqualified for a further period. That may have been a factor for the Judge. It does seem somewhat unfair to Ms Komene if she was to be further disqualified when others before the Judge that day had worse driving records than hers.
[28] The Judge’s remarks that it was a “lottery” were not ideal because they suggest that consistency - like offenders committing like offences should be treated similarly – is not being achieved. I do not have any information as to whether the Judge’s view that it was a “lottery” is the reality or not. However those remarks can be seen as the Judge warning Ms Komene that any further breaches could result in a different outcome. To warn Ms Komene was not inappropriate given her history and that she was caught driving only a short time after the beginning of her disqualification. That warning, together with the community work imposed, denounced Ms Komene’s disobedience.
[29] I note that Ms Komene had completed the original disqualification term by the time this appeal was heard. It would be somewhat harsh to now impose a further period of disqualification in place of the community work that was ordered. For these reasons I decline to quash the sentence imposed.
Christensen
Facts
[30] On 3 December 2009 Mr Christensen was disqualified from driving for five years. While that disqualification was in force, on 29 November 2012 at about
8.10 pm Mr Christensen was driving a vehicle and was stopped at a routine traffic stop. In explanation Mr Christensen said he needed to move some gear to his new flat.
[31] Mr Christensen pleaded guilty to a charge of driving while disqualified. He was 27 years old at the time of this offence. He has a number of previous convictions. These are mostly for driving offending (and include four previous convictions for driving while disqualified) and are as follows:
(a) 3 December 2009: sentenced to two years and two months’
imprisonment, disqualified from driving for five years from
3 December 2009 and ordered to pay reparation: for unlawfully taking a motor vehicle, driving dangerously causing death or injury (x3) and driving with excess blood alcohol (third or subsequent - level 141) on
5 September 2009; for assaults and offensive behaviour on 16 August
2009; and for driving with excess breath alcohol (third or subsequent - level 602) on 31 July 2009.
(b)7 March 2007: sentenced to 100 hours’ community work, disqualified from driving for one year and an order for confiscation of motor vehicle for driving with excess breath alcohol (limit 400 - level 536) on 25 February 2007.
(c) 16 and 22 June 2004: sentenced to 9 months’ imprisonment (with leave to apply for home detention) and disqualified from driving for one year for driving while disqualified (third or subsequent) on
18 June 2004, 14 May 2004 and 15 March 2004.
(d)11 February 2004: sentenced to 400 hours’ community work and disqualified from driving for one year, six months for driving while disqualified, operating a motor vehicle recklessly and failing to stop when followed by red/blue flashing lights on 25 October 2003.
(e) 24 June 2003: fine and court costs and disqualified for driving for six months for driving with excess blood alcohol (level 93) on 17 May
2003.
(f) 3 July 2002: to come up for sentence if called upon and disqualified from driving for six months for driving while licence suspended or revoked on 22 June 2002.
District Court sentence
[32] On 20 December 2012, on the charge of driving while disqualified on
29 November 2012, Mr Christensen was sentenced in the District Court to 100
hours’ community work.21 The Judge’s sentencing remarks were as follows:
Mr Christensen was found driving in circumstances where there were no aggravating features apart from one very obvious one, he has been disqualified for a long time for a very serious previous traffic offence. His disqualification continues until 2014, and you must respect it, Mr Christensen. If you are found driving again, during that time, you will be reminded of the reasons for which the long disqualification was imposed and you will be sent to prison. A warning is placed on your record to that effect.
You are ordered also to undertake 100 hours of community work. No further disqualification is imposed.
[33] The Judge therefore took into account that:
(a) other than driving in breach of a disqualification order, the driving was innocuous;
(b) the disqualification order was for a long time, and continued until
2014;
(c) the disqualification was for a very serious traffic offence;
(d)Mr Christensen could be sent to prison if he was caught driving while disqualified again (and gave him a warning to this effect).
Submissions
[34] The informant submits that the sentence imposed was manifestly inadequate and was not consistent with sentencing levels for like offending. The informant submits that imprisonment and a further period of disqualification was appropriate because of Mr Christensen’s conviction history.
[35] Counsel for Mr Christensen submits that the sentence imposed was within the available range and the Judge was entitled to exercise the discretion not to impose a further period of disqualification. Counsel submits that the cases relied on by the informant involved offenders with more significant previous offending than Mr Christensen.
My assessment
[36] Again the Judge’s approach to driving in breach of an order for disqualification which is otherwise innocuous, is apparent. Even though the Judge acknowledged that Mr Christensen’s conviction history could warrant a sentence of imprisonment, and even though the disqualification had been imposed for a very serious offence, the Judge considered that the sentencing principles and purposes were met by community work (rather than imprisonment and a further period of disqualification).
[37] The cases relied on by the informant by way of comparison are as follows:
(a) Dew v New Zealand Police:22 an appeal against nine months’ imprisonment for driving while disqualified, where at least three previous convictions for the same, was dismissed;
(b)Te Puia v New Zealand Police:23 an appeal against 22 months’ imprisonment for driving while disqualified (third or subsequent), theft and making a false statement (of which ten months’ imprisonment appears to relate to recidivist disqualified driving) was dismissed;
(c) Peterson v New Zealand Police:24 on appeal an 18-month imprisonment sentence was replaced with 13 months’ imprisonment for a sixth driving while disqualified offence.
[38] Counsel for Mr Christensen submits that:
(a) Dew v New Zealand Police is distinguishable because the history in that case was much worse (sixth conviction for driving whilst disqualified, 18 other driving charges including dangerous driving, careless driving, and failing to stop when followed by red and blue flashing lights).
(b)Te Puia v New Zealand Police is distinguishable because the sentence was for a number of matters, Mr Te Puia was on bail at the time of the offending, it was his fifth charge of driving whilst disqualified since
2008 and he had just finished serving a sentence for the same thing, and Mr Te Puia’s conviction history included 21 convictions for breaches of court orders and 43 convictions for dishonesty.
(c) Peterson v New Zealand Police is distinguishable because it was the
appellant’s sixth conviction for driving whilst disqualified and he had
76 previous convictions which the Judge considered displayed a disregard for authority and the need to obey court orders.
[39] I agree that these cases are distinguishable for the reasons advanced by
Mr Christensen’s counsel. His driving history is, however, very poor. Of particular
23 Te Puia v New Zealand Police HC Palmerston North CRI-2011-454-4, 22 March 2011.
24 Peterson v New Zealand Police HC Hamilton CRI-2009-419-11, 20 February 2009.
concern is that he has four convictions for driving with excess breath alcohol, the last of which appears to have involved a serious incident in which three people were injured or killed.25 Mr Christensen’s counsel emphasised the gap in offending from
2009. However for at least some of that time Mr Christensen was in prison (serving a sentence of two years and two months’ imprisonment). I do not know when he was released from that sentence. The leniency Mr Christensen was shown for the present offending is illustrated by the nine months imprisonment sentence earlier imposed on
22 June 2004 for three instances of disqualified driving and one of breach of community work. It would certainly have been open to the Judge to impose a period of imprisonment for the present instance of disqualified driving.
[40] Nevertheless I do not regard the sentence imposed as manifestly inadequate. The starting point was imprisonment but personal factors were also relevant. His counsel informs me that Mr Christensen is a solo father in part time employment. He has served a not insignificant period of imprisonment for previous serious offending. On this occasion the offending involved simple disobedience of a court order. The Judge was not wrong to conclude that in these circumstances it was preferable to allow Mr Christensen to stay out of prison and to do community work instead, but with a warning that he would go to prison if he offended again.
[41] In respect of the s 94 discretion, for reasons similar to those discussed in relation to Mr Body, I consider that the Judge was not wrong to consider it inappropriate to order a further period of disqualification. Mr Christensen’s more significant history warranted a longer period of community work than the others appearing before the Judge that day and that was imposed.
Martin
Facts
[42] On 13 June 2012 Ms Martin was disqualified from driving six months. On
26 November 2012 at about 9.30 am Ms Martin was driving her vehicle in Waitara
25 I do not have the summary of facts, but infer this occurred from the type and number of charges that arose on the same day.
and was stopped by police outside her home. Ms Martin told the police that she did not know she was disqualified from driving.
Personal circumstances
[43] Ms Martin pleaded guilty to a charge of driving while disqualified. She was
37 years old at the time of this offence. Ms Martin was disqualified from driving as a result of a conviction for dangerous driving on 11 April 2012. She was also fined and ordered to pay costs for that offence. She has one conviction for breach of community work in 2005 and two convictions for failure to answer bail in 2006. She has convictions for offending in 1996 but these are for unrelated matters.
District Court sentence
[44] On 20 December 2012, on the charge of driving while disqualified on
26 November 2012, Ms Martin was sentenced in the District Court to 40 hours’
community work.26 The Judge’s sentencing remarks were as follows:
On the defended matters bail to continue 11 February 2013 for a defended hearing.
So far as the disqualified driving matter is concerned the following are the features which in my view need to be taken into account at sentencing. First of all an early guilty plea. Second, that more than five months of the six month disqualification sentence had elapsed at the time this offence was committed. Third, the offence was committed at 9.30 am, the defendant going about normal domestic business after taking her partner to work. There being no other aggravating features in my view it is a case where a cumulative sentence of community work without further disqualification is in the best interest of both the defendant and of the community in the broadest sense.
She is according convicted and ordered to do 40 hours’ community work
without further disqualification.
[45] It can be seen that the Judge took into account: (a) the early guilty plea;
(b) Ms Martin had completed five of the six months period of
disqualification;
26 New Zealand Police v Martin DC New Plymouth CRI-2012-043-2911, 20 December 2012.
(c) the driving was in the morning when Ms Martin was going about her normal domestic duties;
(d) there were no other aggravating circumstances;
(e) the interests of Ms Martin and the community were better served by imposing community work.
Submissions
[46] The informant submits that, having regard to consistency and even handedness, Ms Martin should have been disqualified from driving for six months or more. The informant submits that the Judge failed to take into account that the order for disqualification was for driving in a dangerous manner. It was therefore in the public interest to seek to ensure that Ms Martin adhered to the disqualification order imposed. The informant submits that this purpose is best met by imposing the sanction of a further period of disqualification.
[47] Counsel for Ms Martin submits that the Judge considered the relevant circumstances under s 94(1)(b) and was not wrong to exercise the discretion in the way he did.
My assessment
[48] I agree with the position advanced for Ms Martin. The considerations the Judge took into account were all relevant ones in deciding that a further period of disqualification was inappropriate and community work was appropriate. It is not the case that the only appropriate sanction for driving while disqualified, where the disqualification was imposed for driving that involved danger or risk to the safety of the public, is a further period of disqualification. I have not been given any evidence that this Judge’s decision was inconsistent with sentences imposed by other Judges for similar offending and similar personal circumstances. No error has been shown in the exercise of the discretion.
Capstick
Facts
[49] On 11 July 2012 Mr Capstick was disqualified from driving for one year and one day. While that period of disqualification was in force:
(a) On 11 October 2012 at about 8.45 pm Mr Capstick was stopped at a check point in Waitara while driving a vehicle. He admitted to the police that he was disqualified and offered no explanation for his actions;
(b)Seven days later (18 October 2012), at about 3.50 pm, he was stopped while riding an unregistered motor cross bike in Waitara. He admitted he was disqualified and said that he was just running his dog;
(c) The following day (19 October 2012), at about 7.45 pm, he was driving an associate’s vehicle when he was recognised by a passing police patrol and stopped. He stated that he was only going around the corner to a barbeque and thought it would be alright.
Personal circumstances
[50] Mr Capstick pleaded guilty to three charges of driving while disqualified. He was 19 years old at the time of these offences.
[51] A pre-sentence report had been prepared. This described Mr Capstick as “immature” and “not thinking through the consequences of his actions”. When asked why he drove while disqualified he said that he “doesn’t think, just gets in... and takes off”. The report also said that Mr Capstick has had occasional work, was presently unemployed but had not applied for a benefit, lived with his mother and older brother, and did not use alcohol or other drugs.
[52] His only previous convictions are as follows:
(a) 11 July 2012: 100 hours’ community work and disqualified from driving for one year and one day for driving while disqualified (third or subsequent) on 22 June 2012.
(b) 27 January 2011: 60 hours’ community work and disqualified from
driving for six months for driving while disqualified on 8 January
2011.
(c) 1 July 2010: fine and court costs and disqualified from driving for six months for driving while licence suspended or revoked on 11 June
2010.
District Court sentence
[53] On 20 December 2012, Mr Capstick was sentenced to 40 hours’ community
work.27 The Judge’s sentencing remarks were as follows:28
Today, ordered to do 40 hours of community work, by way of a warning about ignoring Court orders. The one year, one day disqualification imposed on 11 July 2012, and subsisting for a year after 27 July 2012, is now re- heard, and no disqualification is imposed given the imposition of a community-based sentence on that occasion also.
The file, so far, simply represents a confrontation over compliance that could have been avoided had the lengthy cumulative disqualification not been imposed on 11 July last. Both this offence and that one were victimless crimes without immediate aggravating features and from which no harm arose.
Forty hours’ community work, your disqualification you can now treat as
being at an end, Mr Capstick.
Addendum: In a separate exchange with the Sergeant further views were expressed concerning cumulative disqualification in these cases. That has not been reproduced. These reasons have been extended to incorporate some of those matters.
27 New Zealand Police v Capstick DC New Plymouth CRI-2012-043-2596, 20 December 2012.
28 The Judge did not have jurisdiction under s 75 of the Summary Proceedings Act 1957 to “rehear” the disqualification imposed on 11 July 2012. But the informant does not seek to take this matter further.
Submissions
[54] The informant submits that Mr Capstick should have been sentenced to imprisonment for two to four months and disqualified from driving for one year. The informant submits that the offending involved a deliberate flouting of court orders in a short period of time and in circumstances where Mr Capstick has previous convictions for driving while disqualified.
[55] Mr Capstick did not appear at the hearing. I said that I would consider whether I might allow the appeal (in which case an adjournment of the appeal would be granted) or whether I would dismiss the appeal (in which case I could do so without needing to hear from Mr Capstick).
My assessment
[56] Mr Capstick’s only offending history was driving while disqualified. The Judge’s view was that further periods of disqualification were pointless as they would only result in further breaches. The Judge was entitled to take the view that the appropriate response to this pattern of disobedience was to impose community work rather than disqualification. I agree with that view.
[57] In Mitchell v Police the High Court was concerned with a case in which the appellant had some before the Court on his ninth charge of driving while disqualified.29 On earlier charges the courts had tried period detention, corrective training and supervision. On the ninth charge the District Court imposed a sentence of eight months’ imprisonment. In overturning that sentence the High Court Judge said this:30
Section 30AC31 marks a clear shift in the emphasis of penal policy for offences of this kind. Whereas earlier the emphasis was on insisting on compliance with Court orders and punishing those who flouted them in part with longer and longer terms of disqualification, now there is a recognition that there are those for whom the need to drive is almost addictive and that these people will keep offending, no matter what punishment is imposed. The purpose of the amendment is to bring the pattern of offending to an end
29 Mitchell v Police, above n 10; cited in Lambert v Police, above n 10.
30 At 193.
31 This section was the predecessor to s 94 of the Land Transport Act. The provisions are materially the same.
by removing one of its causes, namely, the continued extension of disqualification orders. But it enables this to be done only if there is a community based sentence. ... However, s 30AC does require the Court to be satisfied that a community based sentence is appropriate and so there will still be those cases where offenders have been consistently defiant, perhaps guilty of serious driving offences as well, and where for these and perhaps other reasons imprisonment must be imposed and the automatic disqualification order must follow. But in a borderline case I think that the desirability of bringing the pattern of offending to a halt might well warrant a non-custodial sentence being imposed on one who, under the former regime, might have gone to prison. This, I think, is such a case.
[58] Mr Capstick does appear to be someone who “just drives” without thinking. He has no other offending history. He is relatively young. The point had not been reached where a sentence of imprisonment was the only appropriate response. As in Mitchell v Police Mr Capstick’s lack of thought and disobedience is more appropriately denounced and deterred by community work than by a sentence of imprisonment and the imposition of further disqualification periods that will only likely bring Mr Capstick back to the courts. I therefore consider that no error was made by the Judge in the sentence he passed and it was not manifestly inadequate.
Result
[59] The appeals are dismissed.
Mallon J
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