Pou v Police

[2018] NZHC 787

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI TERENGA PARĀOA ROHE

CRI-2018-488-000011

[2018] NZHC 787

BETWEEN

ANAMARAEA ERIN POU

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	24 April 2018
Appearances:	D Sayes for the Appellant J Scott for the Respondent
Judgment:	24 April 2018

JUDGMENT OF WOOLFORD J

Solicitors:           Marsden Woods Inskip Smith (Office of the Crown Solicitor), Whangarei Counsel:  Mr D Sayes, Whangarei

POU v NZ POLICE [2018] NZHC 787 [24 April 2018]

Introduction

[1]    On 14 February 2017, Anamaraea Erin Pou was sentenced to six months community detention on two charges of driving while disqualified, having been convicted at least twice previously of the same or similar offence. She was also disqualified from holding or obtaining a driver’s licence for 15 months, commencing on 26 April 2017.

[2]    On 2 August 2017, Ms Pou pleaded guilty to a further two charges of driving while disqualified, having been convicted at least twice previously of the same or similar offence, one charge of failing to stop for a traffic officer and one representative charge of breaching the community detention order by failing to remain at the detention address during curfew hours. On the same day, Ms Pou did not oppose an application by the Department of Corrections to cancel the sentence of community detention and substitute another sentence. The sentence of community detention was thereupon cancelled.

[3]    On 19 October 2017, Judge McDonald resentenced Ms Pou on the original two charges of driving while disqualified to three months home detention. The Judge also sentenced Ms Pou to four months home detention on the charge of breaching the community detention order. Then, on the two new charges of driving while disqualified, the Judge sentenced Ms Pou to seven months home detention. All sentences of home detention were concurrent. Finally, the Judge convicted and discharged Ms Pou on the failing to stop charge.

[4]    Counsel submitted that instead of sentencing Ms Pou to another term of disqualification on top of her current term, the Judge should invoke the provisions of s 94 of the Land Transport Act 1998 (the Act) and sentence Ms Pou to a community- based sentence instead of another order for disqualification. The Judge said he did not have jurisdiction to do so and therefore disqualified Ms Pou from holding or obtaining a driver’s licence for another 12 months, commencing on 26 July 2018.

[5]    Ms Pou now appeals against sentence on the sole issue of the applicability of s 94 of the Act. She submits that the Judge erred in law when he held that the Court had no jurisdiction to apply s 94 of the Act.

District Court judgment

[6]The District Court Judge dealt with the issue of s 94 of the Act as follows:1

The remaining question I have to decide is whether I can evoke [invoke] s 94 and not disqualify you? I have read Mr Sayes submissions. His argument is that although I sentence you to home detention which is not a community- based sentence, I can also sentence you to community work and attach the s 94 order to that. He submits that, in my liberal reading, in accordance with the interpretation  act  of  s 94  that  is  allowed.  In  particular  he  refers  me  to s 94(3)(b) which states 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 to the provisions of the Sentencing Act I may impose an addition to that community-based sentence.

He submitted that I could sentence you for the base offending; that is the breaches of community detention and driving whilst disqualified to home detention, but then sentence you to community work which would give me jurisdiction not to disqualify you.

With the greatest respect to Mr Sayes I disagree. In my view s 94(3)(b) relates to matters such as confiscation of motor vehicles or reparation or the like. In my view having sentenced you to home detention there is no jurisdiction for me to invoke s 94.

I make no decision as to whether, if I did have jurisdiction, I would because that in my view is not required.

Respondent’s position

[7]    The Crown accepts that the Court did have jurisdiction to consider exercising its discretion to impose a community-based sentence in lieu of a period of disqualification. The Crown further submits that if this Court determines that there was jurisdiction and therefore there was an error and allows the appeal, the matter should be remitted back to the Judge to consider the application whether a community- based sentence in lieu of disqualification should be substituted.

Discussion

[8]Section 94 of the Act provides:

94 Substitution of community-based sentences

(1)This section applies if—

1      New Zealand Police v Pou [2017] NZDC 23981 at [13] – [16].

(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]    While s 94 does not in itself provide any clear legislative statement as to its purpose, my attention has been drawn by counsel to Hall’s Sentencing, which makes the following observation (adopted and approved of by Asher J in Emani v Police):2

While the rationale of the section has to be gleaned by inference, its primary focus would appear to be to avoid the cumulative effect of adding periods of disqualification each time an offence is committed, and to get persons off the treadmill of re-offending. The section is a recognition, first, of the fact that it is of little benefit to the community or the offender for that person to continue to be disqualified for what young people (as the bulk of those disqualified inevitably are) recognise as impossibly long periods, with the consequence of breach upon breach, conviction upon conviction, and disqualification upon disqualification and, secondly, that in appropriate cases the alternative of a community-based sentence is more likely to be complied with by the offender and is therefore likely to be a more effective punishment.

[10]   Looking more closely at the provisions of s 94, Ms Pou is eligible in terms of s 94(1)(a) in that she has previously been ordered on conviction for an offence to be disqualified from holding or obtaining a driver licence. Secondly, she is not ineligible under s 94(4) as she was not charged under s 63 (relating to transport service vehicles) or under s 65 (relating to repeat drink or drug related driving offences). Nor she is prohibited from applying for a limited licence under s 103(2)(a) (relating to repeat drink or drug related driving offences), (b) (relating to transport service vehicles) or

(d)   (relating to miscellaneous offences).

[11]   Having determined that Ms Pou is eligible under s 94, the next step is to consider the factors set out in s 94(1)(b) of the Act to determine whether it would be inappropriate to order Ms Pou to be disqualified again, with the rider that the Court should consider on the other hand, whether it would be appropriate to sentence Ms Pou to a community-based sentence in accordance with the provisions of the Sentencing Act in lieu of disqualification.

[12]   The section then directs the Court as to the procedure to be followed if it determines that Ms Pou ought not to be disqualified. Section 94(3) directs the Court that in those circumstances the Court must impose a community-based sentence on Ms Pou, but then states that 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

2      Emani v Police HC Auckland, CRI-2009-404-235 at [8].

with the provisions of the Sentencing Act, it may impose in addition to the community- based sentence.

[13]   Mr Sayes submits that there are, in effect, two distinct sentences imposed upon Ms Pou. Disqualification is in itself a separate and significant penalty, which is quite distinct from any other sentence. He submits that a sentence of community work would be appropriate in lieu of another period of disqualification and points to s 19 of the Sentencing Act, which permits combinations of a sentence of community work and home detention.

[14]   The real issue is whether there is any limitation in s 94(3)(b), such that it applies only to sentences such as confiscation of motor vehicles or reparation or the like, as suggested by the Judge.

[15]   I am of the view that, with respect, the Judge fell into error when he considered that the term of disqualification imposed was more or less an adjunct to the sentence of home detention. It is, however, quite distinct and there is nothing in the wording of s 94(3)(b) which limits the jurisdiction of the Court in the way suggested by the Judge.

[16]   This type of sentencing can be seen in the case of Collett v Police where the Court considered imposing a sentence of community work in lieu of disqualification, together with a sentence of imprisonment.3 It was only because of the fact that a term of community work and imprisonment is not a permissible combination of sentences in terms of s 19 of the Sentencing Act, that the appeal failed – Collett v Police (No. 2).4

3      Collett v Police [2017] NZHC 489.

4      Collett v Police (No. 2) [2017] NZHC 1012.

[17]   In those circumstances, the period of disqualification is quashed. The appeal is allowed and remitted back to the District Court for consideration of Ms Pou’s application under s 94 to substitute a sentence of community work for a further period of disqualification.

Woolford J