Prasad v Police

[2014] NZHC 219

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2013-409-000116 [2014] NZHC 219

ROMEET PRASAD

v

NEW ZEALAND POLICE

Hearing:                   13 February 2014

Appearances:           D Matthews for Mr Prasad

K South for the Respondent

Judgment:                19 February 2014

JUDGMENT OF DUNNINGHAM J

[1]      This is an appeal against a decision by Judge Hunt in the District Court declining Mr Prasad’s application to substitute a community-based sentence instead of a period of disqualification from driving, pursuant to s 94 of the Land Transport Act 1998.

Background

[2]      The appellant was sentenced to 50 hours community work and a six month period of disqualification from holding or obtaining a drivers licence, for driving while suspended contrary to s 32 of the Land Transport Act 1998.

[3]      The conviction arose when, on 2 August 2013, the appellant had his driver’s

licence suspended for a period of three months, until 17 October 2013, on the basis of an excess of accumulated demerit points.

PRASAD v NEW ZEALAND POLICE [2014] NZHC 219 [19 February 2014]

[4]      Shortly after he lost his licence, Mr Prasad was offered employment as a driver by Mr Anit Sharma, a courier franchisee.  Their agreement was that Mr Prasad would commence employment once his driver’s licence was no longer suspended.

[5]      However, on 28 August 2013, Mr Prasad was apprehended driving a short distance in his vehicle and was charged with driving while suspended.  Mr Prasad pleaded guilty to the charge and appeared for sentencing before Judge Hunt in the Christchurch District Court on 31 October 2013.

The District Court decision

[6]      In his sentencing decision the District Court Judge declined to apply s 94 on the basis that when the appellant drove on 28 August he knew that there was then a prospect of employment.  The Judge accordingly described the situation by saying that the Court was faced with a choice about a set of circumstances which were of the appellant’s own making, both in terms of the fact that he decided to drive while disqualified and secondly, because he chose to start and make the investment of time in training in a job while the disqualification charge was pending.

[7]      Of particular significance to the Judge was that the appellant was not a person attempting to “maintain” employment as opposed to “securing” employment.  Nor was he a person trapped in a cycle of recidivism in the sense that the appellant was not a person who had little prospect of ever getting his driver’s licence back because of repeated offending.

[8]      Finally, the Judge expressed the view that granting an application in these circumstances would create a much broader category of people to come before the Court with similar explanations, and that would “undermine the consequences of the driving behaviour of the driver on this occasion and off (sic) the breach of the Court order”.

Submissions

[9]      Mr Matthews for the appellant submitted that the Judge’s decision was wrong

in principle for three key reasons.  First, the Judge wrongly considered that it was a

pre-requisite to the grant of the application under s 94 that the appellant be someone trapped in the cycle of recidivism.  Second, the Judge wrongly discounted Mr Prasad as not being a person seeking to “maintain” employment.  Mr Matthews submitted that this was both:

(a)      wrong in fact, because at the time of sentencing he was currently employed and was seeking to continue that employment, and

(b)wrong in law, because the Judge presumed that he needed to fit within this  class  (that  is,  people  seeking  to  maintain  their  employment) before it was a relevant consideration in the exercise of his discretion.

(c)      Finally, he erred in having regard to the “flood gates” argument by considering that if he allowed the application, it would “create a potentially  much  broader  opportunity  for  a  much  wider  range  of people to come before the Court with a very similar explanation”.

[10]     Ms South, for the respondent, emphasised that the Judge had given full and appropriate consideration to each of the separate matters under s 94(1)(b).   The discussion of whether Mr Prasad was a recidivist offender or was someone seeking to maintain his employment, was simply evidence of the Judge giving consideration to factors which might (but need not necessarily) weigh in the decision as to whether to grant the application.

[11]     She emphasised that the starting point was disqualification and that, even if the Judge erred on any specific matter, this Court would still need to be satisfied that a different sentence “should” have been imposed, rather than simply that a different sentence “may” have been imposed.

Approach to appeal

[12]     There was no dispute about the proper approach to the appeal.  It was to be determined in accordance with s 250 of the Criminal Procedure Act 2011.   The appellant must show that there was an error in the sentence (for any reason) and that a different sentence should be imposed.

[13]     To  demonstrate  that  an  error  had  occurred,  it  must  be  shown  that  the sentencing Judge wrongly exercised the discretion by:

(a)       taking into account irrelevant considerations,

(b)      failing to have regard to material considerations, (c)    making an error in principle, or

(d)      making a decision that was plainly wrong.

[14]     The fact that a discretion might have been exercised differently is not, of itself, a reason to intervene.

Discussion

[15]     The first alleged error was that the Judge considered that it was pre-requisite to  the  application  of  s  94  that  the  applicant  be  caught  in  a  cycle  of  recidivist offending.  It is quite clear, and it was common ground, that s 94 was not limited to people “on an endless cycle of disqualification”.1

[16]     In this case I have not concluded that the Judge erred in his discussion on this point.  I accept that the Judge was entitled to consider whether the appellant was a recidivist offender in deciding whether to exercise his discretion.   He did so and found this was not a factor which had been established or which pointed towards granting the application.  Clearly he did not consider it a pre-requisite to the grant of the application because he went on to  consider other factors in the exercise  of discretion.

[17]     However, I do consider the Judge erred in relying on the distinction between “maintaining” and “securing” employment.  The relevance of being someone who was  seeking  to  maintain  employment  arises  from  the  decision  of  Mallon  J  in

New Zealand Police v Body.2   In that case, Mallon J said that “the public interest in a

1      Beeston v New Zealand Police [2012] NZHC 1064 at [14].

2      New Zealand Police v Body [2013] NZHC 1586.

person maintaining their employment” was a factor which might support the exercise of the discretion.3

[18]     I consider that, as a matter of logic, Mr Prasad was a person seeking to maintain his employment when he came up for sentence.  The offer of employment had been made before the events giving rise to this conviction occurred.  At the time of sentencing he was actively employed by Mr Sharma.  Whether this was a matter which would have persuaded the Judge to exercise his discretion in Mr Prasad’s favour or not, I cannot say.  However it is clear that because he concluded Mr Prasad was not seeking to maintain employment, he dismissed this consideration as irrelevant.

[19]     More importantly I consider the Judge erred in principle, and took account of an irrelevant consideration, when he had regard to the precedent that this decision would set.

[20]     As Mallon J said in Body, “That discretion [in s 94] is a broad one.   It requires only that the circumstances make disqualification inappropriate and a community-based sentence appropriate”.4   The language of the section should not be confined by reading in restrictions on the number of applicants who should qualify based on their personal circumstances, where the section itself does not do that.

[21]     As Asher J noted in Yu v New Zealand Police,5 while it may be possible that “the effective sanction of mandatory disqualification for driving while disqualified will be weakened, if a discretion in s 94 is exercised too readily”, he nevertheless acknowledged that Parliament had widened the ability of s 94 discretion, and implicitly, the discretion fell to be exercised in that context.6    If a large number of people fit the circumstances of s 94, that must  be taken to be the intention of Parliament, and the Court should not read in an additional consideration to the

statutory test.

3 At [5].

4 At [7].

5      Yu v New Zealand Police HC Auckland CRI-2006-404-000273, 10 November 2006.

[22]     Finally I note that the Judge’s decision suggests that granting the application “would undermine the consequences of the driving behaviour” with the implication being that the appellant would avoid proper punishment for the offence.

[23]   However, as Mr Matthews pointed out in his submissions, granting the application does not mean Mr Prasad avoids punishment.  I endorse the comments of Asher J in Yu which stated “there is an interest in the public to ensure that persons who flout disqualification orders are punished, but there is nothing which indicates that the only appropriate method of punishment is disqualification”.7

[24]     Mr Matthews submitted that should the Court accept that the learned Judge erred in his application of s 94, the application must be considered de novo and, for the reasons set out in the materials submitted with original application, a community- based sentence of 75 hours should be imposed.

[25]     For the reasons outlined above, I consider that the District Court Judge erred in his decision. The sentence accordingly falls to be considered de novo.

[26]     In considering the matters set out at s 94(1)(b) of the Land Transport Act

1998,  I consider, first,  the circumstances of the case and of the offender.   The circumstances of the case are unexceptional, although I concur with Mr Matthews’ point that, on the occasion Mr Prasad drove while disqualified, it was not in circumstances where he posed, or created, any danger to the public.  It was simply a straightforward error of judgment.

[27]     The more compelling consideration is the circumstances of the offender.  This is the first time that the appellant has held down a full-time job.  He was embarking on a new and more settled life, having moved to Christchurch away from his old associates  in Auckland.   While he has  a  lengthy history of driving offences,  it appears that since he has commenced employment last year as a courier driver, he has had no further convictions.  It does genuinely appear that Mr Prasad’s life has moved on to a more even keel and he is making attempts not to reoffend.

[28]     The next consideration under s 94(1)(b) is the effectiveness or otherwise of a previous order of disqualification made in respect of the offender.  This would be the third time that the appellant’s licence has been suspended so, to that extent, it might be said that the previous orders of disqualification have been ineffective.  However, in my view this is not a consideration that weighs one way or another in this case.

[29]     The third consideration is the likely effect on the offender of a further order of disqualification.  This, in my view, is a clear reason for considering a community- based sentence under s 94.  As already said, Mr Prasad has made changes to his life and is now gainfully employed.   It is inevitable that he would lose his job as a courier driver if he lost his licence.  In circumstances where Mr Prasad is 21 and this is the first job that he has held down, I do not think I can simply assume that he will gain alternative employment.

[30]     Finally, I am to have regard to the interests of the public.  There is of course the general public interest in having young people gainfully employed, and in this case, it appears to have had the extra benefit of bringing to an end Mr Prasad’s earlier history of driving offending.   Furthermore, I accept that the investment by Mr Sharma, who first offered Mr Prasad employment and invested some $2,000 into Mr Prasad’s training, would be largely wasted if Mr Prasad loses his job.  I consider these factors weigh in favour of substituting a community-based sentence for disqualification.

[31]     Looked  at  overall,  and  also  taking  into  account  the  appropriateness  of sentencing Mr Prasad to a community sentence in accordance with Part 2 of the Sentencing Act 2002 I consider a community-based sentence should be substituted for a period of mandatory disqualification.

[32]     In terms of the length of additional community-based sentence to be imposed in addition to the 50 hours community service already ordered, Mr Matthews suggested an uplift of 25 hours so that Mr Prasad would serve a total of 75 hours community service.  Ms South, with reference to the decision of Keane J in Maeva v New Zealand Police8  sought an uplift of around 60 hours in her oral submissions.

That decision recorded that, in light of earlier decisions, an uplift of between 55 and

75 hours was an appropriate range in such circumstances.9     I accept Ms South’s

submissions on this point.

[33]     In  the  circumstances,  the  appeal  is  allowed.    The  sentence  imposed  is quashed.  I impose in its place a total sentence of 110 hours community work, 50 hours for the offence and, under s 94, 60 hours in place of the disqualification that would otherwise be mandatory.

Solicitors:

Public Defence Service, Christchurch

Raymond Donnelly and Co., Christchurch