R v Police HC Auckland CRI 2010-404-217
[2010] NZHC 1887
•17 September 2010
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2010-404-000217
R
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 24 August 2010
Appearances: T Clee for Appellant
S Waalkens for Respondent
Judgment: 17 September 2010 at 2:30pm
(RESERVED) JUDGMENT OF ANDREWS J (Appeal against sentence)
This judgment is delivered by me on 17 September 2010 at 2:30pm pursuant to r 11.5 of the High Court Rules.
..................................................... Registrar / Deputy Registrar
Counsel: T D Clee, Private Bag 92185, Victoria Street West, Auckland 1142
Solicitor: Meredith Connell, PO Box 2213, Downtown, Auckland 1140
R V NEW ZEALAND POLICE HC AK CRI 2010-404-000217 17 September 2010
Introduction
[1] The appellant has appealed against sentence. In essence, his appeal is against the Judge’s refusal to order a community-based sentence instead of disqualification.
Facts
[2] On 5 November 2009 the appellant’s driver licence was suspended for three months as a result of his accumulation of demerit points, in the main for driving above the speed limit. The suspension was due to expire on 4 February 2010.
[3] On 22 January 2010 the appellant was driving a motor vehicle in Manurewa. He was stopped for an unrelated traffic matter and asked to produce his licence. He failed to do so. Police inquiries disclosed that his licence was suspended.
[4] The appellant was then charged with driving while his licence was suspended, pursuant to ss 32(1)(c) and 32(3) of the Land Transport Act 1998 (“the Act”). Following his guilty plea he was convicted and sentenced on 4 June 2010. He applied under s 94 of the Act for a community-based sentence to be imposed instead of an order of disqualification (“the s 94 application”). The grounds of the application were that without a licence the appellant would be unable to get to his place of employment as there is no one in his household who can drive him, and public transport is either difficult or not available.
District Court decision
[5] In his sentencing notes1 the Judge referred to an affidavit sworn by the appellant in support of the s 94 application, and the submissions made on his behalf by Mr Clee. The Judge observed that the nub of the application was that the appellant works as a machine operator at a factory, doing shift work. The Judge recorded that the work site is located “in Manukau, a significant but unspecified distance from [the appellant’s] residence in Mt Roskill. The Judge also recorded the
1 NZ Police v R DC Manukau CRI-2010-092-1424, 4 June 2010.
appellant’s submission that “there is no acceptable public transport” between the two and that disqualification would be likely to cause the appellant to lose his job.2
[6] The Judge was critical of the material before him, noting that “a large amount of” the appellant’s affidavit was not independently substantiated. In particular, he referred to the absence of material supporting the appellant’s assertions as to the distance between his home and work, the unavailability of public transport, the unavailability of anyone who could drive him, and the likelihood of the appellant
losing his job.3
[7] The Judge then considered the interests of the public, observing that the public interest lay in people suspended from driving obeying the terms of the suspension, and that it was not in the public interest for the Court to deal leniently with those who flouted the law and for their own convenience drove during a period of suspension. The Judge observed that to do so would be to undermine the demerit
points scheme, and to call into question the public’s trust in the demerit provisions.4
[8] For those reasons, the Judge concluded that the matters put before him did not amount to sufficient grounds to grant the application for a community-based sentence.5
Approach on appeal
[9] Pursuant to s 107(2B) of the Act, Part 4 of the Summary Proceedings Act
1957 applies to this appeal. The general right of appeal is provided in s 115 of the Summary Proceedings Act and s 121 of that Act sets out this Court’s jurisdiction to hear and determine appeals. With respect to appeals against sentence, s 121(3) provides that the High Court may confirm the sentence, quash the sentence (if it is one which the Court had no jurisdiction to impose, or was clearly excessive, inadequate, or appropriate) or vary the sentence. Section 121(6) provides that in any
2 At [3].
3 At [9] and [10].
4 At [11] and [12].
5 At [12].
case, the High Court may exercise any power that the Court whose decision is appealed against might have exercised.
[10] An appeal against a Judge’s refusal to impose a community-based sentence rather than a disqualification order under s 94 is an appeal against the exercise of a discretion. Accordingly, a Court on appeal must proceed in accordance with the comments in May v May,6 and Blackstone v Blackstone,7 and this Court will not interfere unless the appellant can show that the Judge acted on a wrong principle, failed to take into account some relevant matter, took into account an irrelevant
matter or was plainly wrong.
[11] Mr Waalkens, who appeared for the respondent, referred me to the judgment of the Court of Appeal in R v Shipton,8 commenting on appeals against sentence. Referring to the Court of Appeal’s judgment in Shipton, Mr Waalkens submitted:
a) There must be an error vitiating the lower Court’s original sentencing discretion: the appeal must proceed on an “error principle”.9
b)To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court.10
c) It is only if an error of that character is involved that the appeal Court should re-exercise the sentencing discretion.11
Section 94 of the Land Transport Act
[12] Section 94 of the Act provides:
Substitution of community-based sentences
(1) This section applies if—
6 May v May [1982] 1 NZFLR 165 (CA) at 169–170.
7 Blackstone v Blackstone (2008) 19 PRNZ 40 (CA) at [8].
8 R v Shipton [2007] 2 NZLR 218.
9 See Shipton at [138].
10 See Shipton at [139].
11 See Shipton at [140].
(a)the offender has previously been ordered on conviction for an offence to be disqualified from or 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 any 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 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 limited 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.
...
(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).
Application of s 94(4)
[13] The effect of s 94(4) is that an offender will not be eligible to have a community-based sentence imposed under s 94(2) if ss 63 or 65 apply, or if the offender is prohibited from applying for a limited licence under s 103(2)(a), (b), or (d) of the Act. Sections 63 and 65 do not apply in this case. Section 103 provides:
103 Persons who may apply to court for limited licence
(1)Unless prevented by subsection (2), the following persons may apply for an order under section 105 authorising the grant of a limited licence:
(a) persons who are disqualified by an order made under this
Act from holding or obtaining a driver licence:
(b)persons who are subject to a licence suspension under section 90 (as a result of demerit points).
(2)The following persons may not apply under this section for an order under section 105 authorising the grant of a limited licence:
(a)a person who is disqualified from holding or obtaining a driver licence by an order made under section 65 (which
relates to repeat offences involving alcohol or drugs):
(b)a person who is disqualified from driving a vehicle being used in a transport service (other than a rental service) by
virtue of section 63, if the limited licence would authorise
the person to drive a vehicle being used in a transport service
(other than a rental service):
(c)a person who is disqualified from holding or obtaining a driver licence by an order made on his or her conviction for
an offence against section 32(1) (which relates to driving
while disqualified or contrary to a limited licence):
(d)a person who is disqualified by an order made on his or her conviction—
(i) for an offence against any of sections 35, 36, 38, and
39 (which relate to reckless or dangerous driving, careless or inconsiderate driving causing injury or
death, and failing to stop after an accident); or
(ii) for an offence against any of sections 56, 58, 60, 61, and 62 (which relate to offences involving alcohol or
drugs); or
(iii) for an offence against section 33(1) (which relates to applying for or obtaining a driver licence while disqualified from doing so); or
(iv) for an offence against a provision of the Transport
Act 1962 that corresponds to an offence specified in any of subparagraphs (i) to (iii)—
committed within 5 years after the commission of any other
offence specified in this paragraph and arising from a different incident (whether or not both offences are of the
same kind, regardless of when convictions were entered for
those offences).
[14] The appellant is not disqualified under s 65, so s 103(2)(a) does not apply. Section 103(2)(b) does not apply, and he is not disqualified pursuant to any of the sections of the Act listed in s 103(2)(d). The appellant is disqualified by an order made following conviction for an offence against s 32(1)(c). Accordingly, the appellant is prohibited from applying for a limited licence by s 103(2)(c), but
s 94(4)(b) does not preclude him from applying to have a community-based sentence imposed rather than a disqualification order.
Should there be a rehearing of the s 94 application?
[15] Mr Clee sought a rehearing of the s 94 application. His grounds for doing so related to the material before the Judge at sentencing. He advised that on 25 May
2010, when the appellant pleaded guilty to the charge, written submissions were handed up, together with an affidavit sworn by the appellant. When the appellant appeared for sentencing on 4 June 2010, the Court file did not include the submissions or affidavit. Notwithstanding that, the Judge proceeded on the basis of copies of documents provided to him.
[16] However, Mr Clee said that the Judge was not provided with a letter from the appellant’s employer, dated 27 April 2010. As I understand the position, it had been intended that that letter be provided at sentencing, but that did not occur. Nor did the Judge have before him two pages of a “journey planner” printed out from the MAXX website. Mr Clee advised that those pages had been printed for the purposes of the appeal. The rehearing is sought on the grounds that the Judge did not have those two documents before him.
[17] Mr Clee also submitted that the Judge made an error of principle in determining the s 94 application. This error was, he submitted, that the Judge wrongly allowed for the possibility that the appellant could apply for a limited licence. Mr Clee submitted that the appellant’s position is analogous to that of the
appellant in Thomas v Police,12 in which, by agreement between counsel, Lang J
heard a s 94 application afresh because of the possibility that the Judge had proceeded, when considering the application, on the basis that the appellant was not eligible to apply for a limited licence and therefore statute-barred from applying for a community-based sentence under s 94(4). Mr Thomas’ application was reheard on the basis of the submissions and evidence before the District Court, together with further evidence adduced on appeal.
12 Thomas v Police HC Tauranga CRI-2010-470-15, 13 May 2010.
[18] Mr Waalkens submitted that the circumstances of the present case are not the same as those in Thomas. He submitted that the Judge in reaching his decision did not consider that the appellant may be able to apply for a limited licence, and that an understanding of that sort did not influence his decision. He also submitted that the additional information the appellant seeks to have considered now was before the sentencing Judge, and considered by him.
[19] In his judgment in Thomas,13 Lang J recorded the District Court Judge in that case as saying:
... A limited licence application would be a more appropriate avenue to relieve him of the consequences of his offending, as opposed to a blanket penalty in lieu of disqualification. If he is ineligible and I have not turned my mind to that, then that would reinforce my view on this s 94 application because he would be statute-barred.
[20] In the present case the Judge had this to say in relation to an application for a limited licence:14
For these reasons then, while I apprehend from the application that various matters submitted by counsel may go towards the ability to make a plea in mitigation, or indeed if it were able to him to apply for a limited licence during the period of disqualification or suspension, they do not in my view amount in evidence in fact or law to be sufficient grounds for me to grant the application as made, and the application is refused.
[21] There is, of course, a difference in what the two District Court Judges have said, in that in Thomas the Judge may have been of the view that the appellant was not eligible for a limited licence and therefore statute-barred from applying under s 94, whereas in the present case it is suggested that the Judge may have proceeded on the basis that the appellant is eligible to apply for a limited licence. However, there is in both cases a possibility of ambiguity as to the implications of the applicant’s eligibility (or lack thereof) to apply for a limited licence. In Thomas that possibility of ambiguity led to a rehearing.
[22] Turning to the material before the Judge at sentencing on 4 June 2010, it is appropriate to set out the letter from the appellant’s employer:
13 At [4].
14 At [12].
AMCOR BEVERAGE CANS
AUSTRALASIA
27/04/10
TO WHOM IT MAY CONCERN
Muni R commenced his employment at Amcor Beverage Cans as a machine operator in November 2005. Amcor Beverage Can currently operates 4 shifts 24/7 and has done so for the last 10 yrs and there is no expectation that that will change looking forward. Muni works a 4 on 4 off shift roster working 2 days from 7 to 7 followed by 2 nights from 7 to 7 followed by 4 days off. He will start and finish on a different day each week and it takes a total of 8 weeks to complete a full cycle. The plant is situated in Ash rd Wiri and to my knowledge there is no public transport at or near our location. If you require further detail please contact me.
Sincerely, [Jody Mizer.]
Shift Manager, Amcor Beverage Cans.
...
[23] The MAXX journey planner appears to show that there is no public transport that would enable the appellant to arrive at work in time to begin a shift at 7am and that to arrive at work in time to begin a shift at 7pm requires a journey of 2 hours 7 minutes and involves walking and three buses (there is no information as to the return journey.)
[24] In the light of the possible ambiguity as to whether the appellant is prohibited from applying for a limited licence, and the significance placed by the Judge on the absence of independent support for the appellant’s assertions in his affidavit, I have concluded that it is appropriate for me to consider the matter afresh on the material before me. I therefore turn to consider the factors relevant to the s 94 application.
The s 94 application
Introduction
[25] Before considering the relevant factors it is appropriate to set out, briefly, the circumstances of the appellant’s offence. As mentioned earlier, the appellant’s
licence was suspended on 5 November 2009, as a result of his accumulation of demerit points. On the evening of Friday 22 January 2010 the appellant was driving, with his uncle and son with him, on the way to a family wedding. He passed through a compulsory breath test check point in Manurewa. He had no difficulty passing through the check point, as he had not been drinking. However, after going through the check point the appellant was struggling to find the address he was looking for, and turned around a number of times. The appellant’s driving aroused the suspicion of an officer at the check point, and he was pulled over and asked to produce his licence. As already mentioned, he was not able to do this, and Police inquiries disclosed that he was a suspended driver.
[26] The appellant says in his affidavit that it came as some surprise to him that, as at 22 January 2010, he was still a suspended driver. He said that he was under the impression that his licence had only been suspended for a two month period, until
2 January 2010. Further, he said that as at 22 January 2010 he was waiting for his licence to be sent back to him. Notwithstanding any such understanding on the part of the appellant, his driver licence was clearly suspended as at 22 January 2010.
[27] The onus is on the appellant to satisfy the Court that the discretion to impose a community-based sentence rather than disqualification should be exercised, and the appellant is required to establish the conditions for an order under s 94. These are that:
a) he has previously been disqualified;
b)it is inappropriate to order disqualification, having regard to the matters listed in s 94(1)(b);
c) it is appropriate to impose a community-based sentence; and
d)he is not prohibited from applying for a limited licence under s 103(2)(a), (b), or (d) and neither s 63 nor 63 of the Act apply.
[28] The appellant has previously been disqualified. His driver licence was suspended (for present purposes, suspension is equivalent to disqualification) on 5
November 2009. His list of previous convictions discloses that he was disqualified from driving on 21 June 2001 (for one year) and on 12 November 2001 (for six months). He was also disqualified from driving in September 1996 and June 1995. Further, as noted above, the appellant is not prohibited from applying for a limited licence under s 103(2)(a), (b), or (d), and neither s 63 nor 65 of the Act apply. The s 94 application turns on whether it is inappropriate to disqualify the appellant having regard to the matters listed in s 94(1)(b), and whether it is appropriate to sentence him to a community-based sentence.
The s 94(1)(b) factors
[29] There are four matters to consider:
a) the circumstances of the case and of the appellant;
b) the effectiveness or otherwise of a previous order of disqualification;
c) the likely effect on the appellant of a further order of disqualification;
and
d) the interests of the public.
The circumstances of the case and the appellant
[30] Apart from the fact that the appellant drove when his licence was suspended, there is nothing remarkable about his offending. He was not affected by alcohol, and it was not because any driving offence was detected that he was stopped and asked to produce his licence. The Judge went through the circumstances of the case and emphasised that it was not the manner of the appellant’s driving that drew the Police
Officer’s attention to him.15
Effectiveness of a previous order of disqualification
[31] As mentioned previously, the appellant’s driver licence was suspended on 5
November 2009. He had previously been disqualified from driving on two occasions in 2001, in 1996 and in 1995. The previous orders of disqualification may be said to have been effective in that there was a period of some eight years between the disqualifications in 2001, and the suspension in 2009. However, it can also be said that the previous disqualifications were ineffective, in that the appellant has had more than one disqualification, and he drove when his licence was suspended.
The likely effect on the appellant of a further order of disqualification
[32] In the District Court, the Judge took into account submissions made on behalf of the appellant that there is a “significant distance between the appellant’s home in Mt Roskill and his place of work in Manukau”, the appellant’s assertion that there is no ‘acceptable public transport’ between the two, his evidence that his wife is not able to drive; and that a period of disqualification would likely cause the appellant to lose his job.16 The Judge did not find that those matters gave grounds to grant the s 94 application.
[33] There is more information before me. In particular, there is confirmation from the appellant’s employer that he is required to work 12 hour shifts, between
7am and 7pm, or 7pm and 7am, on a rotational basis. The employer’s letter also states that to the author’s knowledge, there is no public transport at or near their location. That is supported by the printout from the MAXX website. In short, it shows that there is no public transport that would enable the appellant to travel from his home to his work so as to begin a shift at 7am. The printout also shows that, while public transport is available to enable the appellant to begin work at 7pm, it cannot be described as convenient. Further, it was confirmed at the appeal hearing that the appellant’s wife does not have a driver licence and is not able to drive. On that basis, I conclude that a period of disqualification would make it extremely difficult, if not impossible, for the appellant to continue working at his present
employment. He would be left in the position of either having to resign or if he failed to attend at work, be dismissed from his employment.
[34] I accept Mr Waalkens’ submission that the Judge in the District Court was correct to treat the appellant’s unsubstantiated submissions with caution, but there is more information before me than there was before the District Court Judge.
The interests of the public
[35] In the District Court, the Judge appropriately observed that the public interest lies in ensuring that the provisions of the demerit points system, and enforcing suspensions of driver licences, and that it is not in the interests of the public to deal leniently with those who flout the law and drive during a period of suspension.17 However, s 94 gives the Court the power to impose a community- based sentence rather than order disqualification, if it considers that it would be inappropriate to order disqualification and appropriate to impose a community-based sentence.
[36] Against the public interest in maintaining the integrity of the demerit point system, and enforcing suspension orders, is the public interest in retaining an individual offender in gainful employment. I do not consider that it is in the public interest for the appellant to lose his livelihood. Further, I do not think it can be said that a community-based sentence should be seen as dealing “leniently” with the appellant.
[37] Taking all of the above matters into account, including the absence of any aggravating factors with respect to the appellant’s actual offending, I have reached the conclusion that it would be inappropriate to impose a further period of disqualification, and that it would be appropriate to impose a community-based sentence.
Result
[38] The appeal is allowed. The order for disqualification is quashed. The appellant is ordered to complete 80 hours community work. The fine of $400 and
Court costs of $130 imposed by the Judge remain.
Andrews J
0
0
1