Police v Smith
[2012] NZHC 2346
•12 September 2012
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2012-404-000032 [2012] NZHC 2346
NEW ZEALAND POLICE
Appellant
v
MATTHEW ISAAC SMITH
Respondent
Hearing: 26 June 2012
Further submissions filed 20 and 27 July 2012
Counsel: KC Francis for Appellant
RD Mulgan and AL Simpson for Respondent
Judgment: 12 September 2012
JUDGMENT OF ASHER J
This judgment was delivered by me on Wednesday, 12 September 2012 at 4pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors/Counsel:
Crown Solicitor, DX CP24063, Auckland 1140. Email: [email protected]
RD Mulgan, 51 Pembroke Crescent, Glendowie, Auckland 1071. Email: [email protected]AL Simpson, 1/11 Freeman Way, Manukau 2104. Email: [email protected]
POLICE V SMITH HC AK CRI-2012-404-000032 [12 September 2012]
Introduction
[1] The appellant, the New Zealand Police, appeals against a sentence of 80 hours’ community work imposed on a charge of driving while the driver’s licence was suspended, rather than the mandatory disqualification period of six months or more. The appellant says that there was no jurisdiction to impose that sentence, and that the Court was obligated to impose the sentence of disqualification.
[2] The facts relating to the conviction were entirely unremarkable. The respondent, Matthew Smith, had had his driver’s licence suspended on 16 September
2011 for a period of 28 days for driving over 40 kilometres per hour over the speed
limit, pursuant to s 95(1)(c) of the Land Transport Act 1998 (“the Act”). On
24 September 2011, within the period of disqualification, the respondent had been stopped at a Police checkpoint and identified as a driver of a vehicle in breach of the suspension order. On 23 January 2012 Mr Smith pleaded guilty and appeared for sentence on the one charge of driving a motor vehicle while his licence was suspended, contrary to s 32(1)(c) of the Act.
[3] Before the sentencing Judge, Judge Tremewan, the Police had accepted that the Court had jurisdiction to impose a sentence of community work. Both Police and counsel for the defendant had considered the Judge to be bound by a High Court decision Pannu v Police1 where the Court had found that s 94(2) of the Act, which provided an alternative to disqualification in certain circumstances, applied to a suspended driver. Judge Tremewan was recorded in her discussion with counsel as
commenting that that result involved a “bizarre situation” and in her decision observed that that result was “strange”. She understandably felt bound in the context of the High Court decision to consider as a potential sentence a term of community work, and in all the circumstances was of the view that, it being an option, community work was the appropriate sentence.
[4] There is no challenge by the appellant to the Judge’s conclusion that if
community work was an available option, it was an appropriate sentence. The challenge is, rather, to her jurisdiction to invoke the s 94(2) discretion.
1 Pannu v Police HC Auckland CRI-2009-404-84, 2 June 2009.
The statutory framework
[5] Section 32(1)(c) and (3)(a) and (b) provide:
32 Contravention of section 5(1)(c)
(1) A person commits an offence if the person drives a motor vehicle on a road—
…
(c) while his or her driver licence is suspended or revoked.
…
(3) If a person is convicted of a first or second offence against subsection
(1),—
(a) the maximum penalty is imprisonment for a term not exceeding 3 months or a fine not exceeding $4,500; and
(b) the court must order the person to be disqualified from holding or obtaining a driver licence for 6 months or more.
(emphasis added)
Disqualification is, therefore, expressed to be a mandatory penalty.
[6] Section 94(1) and (2) of the 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.
…
[7] The effect of the section has been summarised in a number of cases.2 It permits a Judge to impose a community-based sentence instead of a period of disqualification which would otherwise be mandatory. However, it is not available as a matter of course for those who are convicted of driving offences. The stated conditions must be met. Having regard to certain stated criteria in s 94(1)(b), it must be inappropriate to order disqualification. In addition, under s 94(1)(c) it must be positively “appropriate” in the Court’s view to sentence the offender to a community-based sentence. Importantly, there must be a prior disqualification
order.3
[8] The section applies to offenders previously ordered on conviction for an offence to be disqualified. It does not refer to persons who have been previously suspended from driving.
[9] The relevant sections relating to mandatory suspension are ss 90, 95 and 95A of the Act. Under s 90(1) if in any two year period a total of 100 or more demerit points are recorded, the New Zealand Transport Agency must by notice in writing suspend the person’s current driving licence. Under s 95 an enforcement officer must give a person a notice under that section that the person’s driver licence is suspended for 28 days if the enforcement officer believes on reasonable grounds that certain criteria that are set out in the section are met. Under s 95A this 28 day period
of suspension may be extended by application to the District Court.
2 See Yu v Police HC Auckland CRI-2006-404-273, 10 November 2006 at [6]–[13]; Maeva v Police HC Auckland CRI-2010-404-402, 11 March 2011 at [32]–[34]; and Admore v Police HC Auckland CRI-2008-404-245, 3 December 2009 at [14].
3 Section 94(1)(a).
The submissions
[10] For the appellant Mr Francis submits that there is no jurisdiction under s 94 to impose a sentence of community work in place of the mandatory period of disqualification. He submits that it is a prerequisite to the operation of s 94 that there is a prior order of disqualification on conviction. A suspension does not satisfy that prerequisite. He also submits that the language of s 94 and its statutory scheme and purpose all establish that it is directed at those with repeated convictions and disqualifications for driving offences, and not for those who are suspended. He submits that the Judge wrongly considered herself bound by the High Court authority of Pannu, when she was not so bound and when there was in fact a High
Court authority, Police v Raynes4 to the opposite effect.
[11] Mr Mulgan for the respondent advised the Court that he had considered the matter as best he was able and was unable to put forward any submissions to support the Judge’s decision. While he could not, he said, contend that s 94 did in fact relate to drivers who had only been previously suspended from driving rather than disqualified, his focus was on the reality of his client’s position should the appeal be allowed. He was most anxious that a way be found to not effectively penalise Mr Smith twice by quashing the sentence of community work, which has now been served by Mr Smith, and imposing a term of disqualification, which would effectively be a second punishment.
[12] On this point Mr Francis for the appellant supported Mr Mulgan’s position and agreed that it would be wrong for a sentence of disqualification to be imposed on Mr Smith as a consequence of the appeal being allowed, although this position was somewhat modified in later submissions.
Case law
[13] There appears to be no recent case where the applicability of the s 94 discretion where the driver was suspended rather than disqualified has been
4 Police v Raynes HC Auckland AP 86/98, 10 November 1998.
considered on a contested and fully argued basis. However, the issue did arise in
Raynes in 1998.
[14] In that case the respondent, who had been convicted of driving with excess breath alcohol, had been previously suspended. The predecessor to s 94, s 30AC of the Transport Act 1962, applied. It contained wording that required the offender to have “... previously been ordered on conviction for an offence to be ... disqualified [from holding or obtaining a driver’s licence]”. The Police challenged the District Court Judge’s jurisdiction to avoid disqualification by using the s 30AC discretion.
[15] Baragwanath J observed that in two earlier unreported decisions5 the Court had disposed of appeals on the assumption that a demerit suspension or disqualification could trigger the jurisdiction, but he noted that in neither case was the jurisdiction point argued.6 In the case before him the District Court Judge had regarded himself as bound by the High Court authorities. Although he acknowledged the argument that it was an anomaly that suspended drivers could not avail themselves of the discretion, he observed that there was no jurisdiction under s 30AC to substitute community service for disqualification when the offender has not been in fact disqualified. He observed:7
That fact removes much of the force of Mr Mitchell's argument. While it may seem remarkable that a defendant committing a driving offence who has had the good fortune to have had his licence suspended by the Court may apply to serve a community based sentence (which may be preferred) and avoid disqualification, when another defendant committing an identical offence whose licence has been suspended by executive act lacks that privilege, so too does the innocent who has committed no prior offence whatever. I have noted that there is no equivalent to s49 in relation to s30AC.
It is the Court's constitutional function to give effect to Parliament's will and to strain its language only where it removes an anomaly which it could not have intended. I do not find the anomaly resulting from use of the strained construction so much more attractive than the anomaly resulting from a literal construction as to warrant distortion of Parliament's language. In these circumstances I am not prepared to hold that the anomaly line should be treated as running between the second and third of these classes of offender rather than between the first and second.
5 McFetridge v Police HC Auckland AP 25/96, 20 November 1996, and Shaw v Ministry of
Transport (1990) 5 CRNZ 644 (HC).
6 Police v Raynes, above n 5, at 6.
7 At 11.
However, for other reasons the appeal was dismissed.
[16] This decision was not drawn to the attention of Keane J in the Pannu case relied on by Judge Tremewan. The Pannu case again concerned a driver who was stopped for driving while suspended. He had no previous convictions and had not been subject to an order for disqualification. He appealed against the Judge’s refusal to impose a community-based sentence instead of the mandatory disqualification pursuant to s 94. It appears to have been accepted by both sides on the appeal that the prior suspension of the appellant’s licence gave the Court jurisdiction over s 94. The point was therefore conceded, or at least assumed. Keane J’s only reference to the issue was at [9] where he stated:
Section 94(2) enabled the Court to impose a community based sentence, in place of an order for disqualification, as long as the three conditions set out in s 94(1) were satisfied; as to the first of which, that in subs 1(a), there could have been no issue. As a driver whose licence was suspended, Mr Pannu was deemed to be a disqualified driver.
Analysis
The words
[17] Section 94(1)(a) applies if the offender has previously been ordered “... on conviction for an offence to be disqualified ...”. Neither disqualification nor suspension are defined. However, disqualification is stated to be a general penalty which may be imposed if the offence involves road safety.8 Under s 80(1) the general penalty of disqualification may be imposed if a person “... is convicted of an offence against this Act”. Section 80(1) goes on to deal with an effective disqualification. Section 82(1) provides that if a person is disqualified “... the licence is suspended while the disqualification continues in force”. Under s 85
disqualification starts “... on the day the order is made ... unless the court otherwise directs”.
[18] Suspension on the other hand is not a penalty imposed by order of the Court. Under s 90(1) it arises as a mandatory statutory consequence of the series of
8 Land Transport Act, s 80.
infringements that have been committed.9 There is no judicial process involved in the suspension. A different sort of suspension arises under s 95, where an enforcement officer must give a notice under that section if the enforcement officer believes on reasonable grounds that certain stated requirements have been met. Like s 90, the sanction arises as a mandatory consequence of certain stated criteria being fulfilled.
[19] On the plain words of s 94, and when read in the wider context of Part 7 of the Act, the process of an order on conviction for disqualification is very different from the mandatory consequence of suspension. One happens by way of Court order, the other automatically as a matter of law. Therefore, under s 94(1)(a), disqualification does not include suspension. It follows that s 94 does not apply to a suspension.
[20] As a further point, it is also not possible to see how the mandatory penalty of suspension could be regarded as a penalty, to use the words of s 94(1)(a), “... ordered on conviction”. It is not ordered on conviction. Rather, it is a mandatory consequence of certain events that arise prior to conviction.
The purpose of the Act
[21] This section was based on its predecessor, s 30AC of the Transport Act 1962. Section 30AC was introduced in 1988. The purpose of this section was set out in the explanatory note of the Transport Law Reform Bill:
New section 30AC implements recommendation 22 of the Road Safety Committee to the effect that where the Act presently requires a mandatory period of disqualification, and the convicted person has previously undergone a period of disqualification, it should be open to the Courts in any particular case where the usefulness of a further period of disqualification is doubtful to impose an alternative but more effective community-based sentence.
[22] The explanatory note indicates that the purpose of the reform was to provide the courts an option to impose penalties other than repeat periods of disqualification
where the usefulness of such penalties was doubtful. As Hardie Boys J said in
9 Henderson v Director of Land Transport New Zealand [2006] NZAR 629 (CA).
Mitchell v Police10 it was to remove drivers from an unending “wheel of offending”11 where further disqualification was likely to be met by further driving while disqualified. This was confirmed when the section was amended in 2005 to extend to recidivist disqualified drivers. The Select Committee when it did so
confirmed that this was done to “extend its scope to include disqualified drivers who are caught in a cycle of disqualified driving but have no other recent convictions for serious road safety offences”.12 The section extends not only to habitual re- offenders, but also those facing only their second offence and who are liable to disqualification.13
[23] These indications of purpose do not indicate any intention on the part of
Parliament to extend the scope of s 94 to include suspended drivers.
[24] Baragwanath J in Raynes saw the lack of any reference to suspension in s 94 as an “anomaly”. However, he did not refer to these indications as to the purpose of s 94. It can be seen that the lack of reference to suspension by those who drafted the Act may well have been deliberate. A limited licence is not available to certain persons, including those who have been convicted of driving while disqualified under s 103(2) of the Act.14 The purpose of s 94 would appear to be to give the courts a discretion whereby certain persons including those disqualified can, at the Court’s discretion, receive a sentence that is not invariably disqualification. Further, as has often been commented, it gives the Court an opportunity to remove offenders from the “wheel of offending”.15 There is a real functional difference in the penalties of disqualification and suspension. As was stated by Miller J in Keleher v Police of suspension:16
There is no proceeding. The necessary steps are administrative in nature. The Director, who has no discretion in the matter, writes to the person concerned advising that his or her licence has been suspended by operation of s.90.
10 Mitchell v Police (1989) 5 CRNZ 190 (HC) at 193.
11 Yu v Police, above n 2, at [12].
12 Land Transport Amendment Bill 2005 (112–2) (select committee report) at 10.
13 Yu v Police, above n 2, at [12].
14 At [11].
15 At [12]: see also Maeva v Police, above n 2, at [30].
16 Keleher v Police HC Rotorua CRI-2004-470-13, 30 April 2004 at [18].
[25] This was in the context of s 90 but the same could be said of the required administrative step of an officer suspending under s 95(1)(c), where the various requirements had been fulfilled.
[26] Given the difference in the nature of the two penalties, it is possible that the wording of s 94 was not anomalous, and that the discretion created was intentionally limited to orders of disqualification on conviction and not extended to the penalty of suspension. The penalty of suspension may well have been seen as a short sharp remedy to be invariably imposed in certain circumstances.
[27] Even if I were wrong in my assessment that there may be a policy justification for the difference in the treatment of the penalties of disqualification and suspension, and Baragwanath J was right in his assertion that the difference is an anomaly, like him I would not feel able to go behind the plain words of the section. The violence that would have to be done to the plain words would be too excessive to be warranted. As a Judge I would be re-writing the section on the basis of my guess as to what the legislature intended, which would not be right.
Conclusion
[28] I conclude that s 94(2) cannot be applied where the offender has previously been suspended rather than been ordered on conviction for an offence to be disqualified. Accordingly, it could not be applied to Mr Smith on his conviction as he had not been previously convicted and disqualified from driving. I respectfully adopt the conclusion of Baragwanath J in Raynes and decline to follow Pannu.
[29] Judge Tremewan made an order of community work without jurisdiction. In ordinary circumstances that would result in the appeal being allowed.
The appropriate remedy on appeal
The possibilities
[30] Mr Smith has served the sentence of community work. That was a sentence imposed by the Court as the appropriate penalty required to punish Mr Smith for his offending. This penalty was seen as an adequate punishment response to Mr Smith’s culpability.
[31] The issue raised by this appeal is jurisdictional, and does not involve any suggestion that the punishment was in itself inadequate. I am satisfied that the Court would not have ordered a sentence of community work in addition to disqualification, although if it had ordered disqualification there was likely to have been a modest fine as well. As a consequence, if the appeal is allowed and a penalty of disqualification is imposed under s 32(3)(b) of the Act as follows from the decision that s 94 does not apply, Mr Smith will be punished twice.
[32] The Crown in its later submissions observed that the Court must nevertheless impose a period of disqualification. In his first submission Mr Francis raised the possibility (without endorsing it) that to avoid further punishment the Court could utilise the general discretion in s 85(1) to order disqualification to start from a date that is not the date of the order. The Court could impose a sentence of disqualification that was to start at an earlier date which could be calculated to ensure that Mr Smith would not actually have to serve any period of disqualification.
[33] While this discretion undoubtedly exists17 there would be grave difficulties in applying what would effectively be a retrospective period of disqualification in this situation. Amongst the difficulties, it would mean that Mr Smith had been driving over past months while being retrospectively disqualified.
[34] Mr Mulgan for Mr Smith referred to the concept of being punished twice for the same offence, and suggested that the Court had the option of refusing to impose
17 Edwards v Police [2012] NZHC 1350 (where a quashed disqualification had been served).
the mandatory disqualification on the basis that s 26(2) of the BORA and s 10(4) of the Crimes Act prevailed over s 32(3)(b) of the Land Transport Act.
[35] Another possibility raised is to utilise an appellate Court’s discretion to decline to interfere with the sentence when that would cause injustice to the offender, even if the sentence imposed is wrong in principle.18 In the cases cited of R v Osuji and R v Donaldson,19 the discretion was exercised to avoid injustice to the offender, although the Court was not faced with a mandatory penalty.
Discussion
[36] I accept the Crown submission that it is unnecessary to engage in the exercise of reconciling double jeopardy principles with the requirement for compulsory disqualification. An appellate court has a broad discretion. As was stated in R v Donaldson:20
Even if the Court determines that the sentence is manifestly inadequate or based upon a wrong principle, it will still be reluctant to interfere if this would cause injustice to the offender. In particular, the Court will be more disinclined to interfere where a community-based sentence has been imposed and conditions which were ordered have been complied with than where an inadequate custodial sentence is in issue.
[37] In R v Andrews21 and R v Raihania22 on Solicitor-General appeals the Court of Appeal found that the Crown was justified in bringing the appeal, but nevertheless declined to allow the appeal because of the injustice that would as a consequence be visited on the respondent.23
[38] While the Crown has not submitted that is the correct approach, it has nevertheless accepted that despite its submissions being upheld it is open to the
Court to decline the appeal, and that that may be an appropriate result in this case.
18 R v Osuji HC Auckland CRI-2010-404-353, 15 September 2011; and R v Donaldson (1997)
14 CRNZ 537.
19 R v Donaldson [1997] 14 CRNZ 537 (CA).
20 At 550.
21 R v Andrews [2000] 2 NZLR 205 (CA).
22 R v Raihania [2007] NZCA 152.
23 See also R v Cowen HC Christchurch CRI-2009-409-50, 25 June 2009; and Solicitor-General v
Senelale HC Timaru CRI-2009-476-9, 28 July 2009.
The respondent is in the end content with any outcome that does not involve him being penalised further.
[39] I consider that it would be unjust to allow the appeal, as if I did so the necessary consequence would be the imposition of a considerably greater penalty than would have been imposed otherwise. The initial sentence of community work was intended to be the whole penalty. There would be an element of double punishment. I am satisfied that I should decline the appeal on the discretionary ground referred to in R v Donaldson to avoid injustice.
Result
[40] The appeal is dismissed.
[41] As to costs, although the appellant has been unsuccessful as to the result, it has been successful in its substantive argument. My inclination is that costs should lie where they fall. Nevertheless, if parties wish to make submissions on costs, submissions should be filed within 14 days.
……………………………..
Asher J
7
4
1