Rahman v Police
[2024] NZHC 205
•19 February 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2023-404-632
[2024] NZHC 205
BETWEEN YOUSRA (SARA) RAHMAN
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 13 February 2024 Appearances:
A Hart for Appellant
M Nash for Respondent
Judgment:
19 February 2024
JUDGMENT OF LANG J
[on appeal against sentence]
This judgment was delivered by Justice Lang On 19 February 2024 at 2.30 pm
Registrar/Deputy Registrar Date:…………………………
Solicitors/counsel:
Hart & Associates, Auckland
Meredith Connell, Office of the Crown Solicitor, Auckland
RAHMAN v NEW ZEALAND POLICE [2024] NZHC 205 [19 February 2024]
[1] Ms Rahman pleaded guilty in the District Court to three charges of driving whilst disqualified, two charges of driving contrary to the terms of an alcohol interlock licence and one charge of driving when her blood contained alcohol whilst she held an alcohol interlock licence.
[2] On 14 November 2023, Judge J D Large sentenced Ms Rahman to concurrent sentences of home detention on all charges, the net effect of which was to require Ms Rahman to serve a sentence of three months home detention.1 He also disqualified her from driving for the mandatory periods prescribed by the Land Transport Act 1998 (the Act). He calculated these as being 12 months and one day on the charges of driving whilst disqualified followed by three consecutive periods of 28 days each on the three remaining charges. The Judge calculated that these resulted in Ms Rahman being disqualified from driving until February 2025.
[3] Ms Rahman appeals against the periods of disqualification the Judge imposed. She contends he ought to have exercised his powers under s 94 of the Act to impose a community-based sentence rather than further periods of disqualification. She therefore contends the Judge erred in principle in imposing the orders for disqualification.
Background
[4] Ms Rahman has a lengthy history of driving whilst disqualified and driving with excess breath and blood alcohol. She also has convictions for dangerous driving and operating a motor vehicle recklessly.
[5] Prior to the present offending, Ms Rahman’s most recent appearance before the court was on 21 January 2021. On that occasion, she was sentenced on charges of driving whilst her licence was suspended or revoked, driving with alcohol in her blood whilst subject to a zero alcohol licence, operating a motor vehicle recklessly and failing to stop for red and blue flashing lights. On that occasion, she was sentenced to intensive supervision for 18 months as well as community detention for six months. In addition, she was disqualified from driving for a period of six months.
1 Police v Rahman [2023] NZDC 25571.
[6] On 23 May 2021, a vehicle was observed driving in an erratic manner in a westerly direction on State Highway 16. The police stopped the vehicle and found Ms Rahman to be the driver. Enquiries revealed that she was driving whilst disqualified.
[7] On 13 January 2022, the police stopped Ms Rahman whilst she was driving in an east bound direction on State Highway 16 at a speed of 106 kilometres per hour when the posted limit was 80 kilometres per hour. She initially gave false details but ultimately acknowledged her true identity. She was again driving whilst disqualified.
[8] The police arrested Ms Rahman again on 19 May 2022 when she was found driving whilst disqualified in the central city. Then, on 9 October 2022, the police stopped Ms Rahman while she was driving a motor vehicle in a south bound direction on State Highway 1. Checks showed that she was subject to the provisions of an alcohol interlock licence. The vehicle she was driving did not have an alcohol interlock licence installed.
[9] Finally, the police stopped Ms Rahman again whilst she was driving a vehicle on Lincoln Road in Henderson on the evening of 23 February 2023. She was still subject to the alcohol interlock licence. The vehicle she was driving had not been fitted with an alcohol interlock device and her blood was found to contain 64 milligrams of alcohol per 100 millilitres of blood.
[10] The present offending occurred in circumstances where Ms Rahman has 14 previous convictions for driving whilst disqualified and four previous convictions for driving with excess blood or breath alcohol.
The Judge’s decision on the s 94 issue
[11] At sentencing, counsel then acting for Ms Rahman contended that the Judge ought to have imposed a sentence of community work under s 94 of the Act rather than further periods of disqualification. The Judge rejected this submission for the following reasons:
[13] Mr Marshall appearing today seeks an order from me not disqualifying you pursuant to s 94, arguing that you have made good inroads
into your difficulties and that you have now got a job. You need your licence to drive to work and also transport your son to his place of employment.
[14] I read the presentence report that indicates that you have had struggles in all sorts of ways, particularly substance abuse, and obviously alcohol has been a problem for you otherwise you would not have been drink driving.
[15] I am not going to dwell on the personal matters referred to in the presentence report. I am conscious of your history. I am conscious of the struggles you have had. But I have an obligation to the public as well as to you.
[16] The Sentencing Act 2002 requires me to impose a sentence that holds you accountable for what you have done and impose a sentence that denounces the conduct but also acts as a deterrent to you, but I am also obliged to impose the least restrictive penalty that is available in the circumstances. I will come to that last point in a moment.
[17] In terms of s 94, one of the major factors I have to consider is whether such an order would be in the public interest. I accept immediately from the materials you have supplied me that it would be in your interest to have your licence or not be disqualified, but I have to consider whether it is in the public interest for you not to be disqualified.
[18] The police have highlighted your history for demerit points, which include primarily speeding, and those have caused you to, as well as other traffic matters, incur fines totalling some $10,046.29. I have not analysed that fine summary in any detail but the majority is obviously breaking the speed limit. That is a factor that is apparent in this offending that is before me today.
[19] In my view, it is not in the public interest to not disqualify you today, notwithstanding the progress you have made in getting a job and keeping out of the courts since at least February this year in terms of driving. I make that comment because there may be other matters unrelated to this type of offending in another court, so I put that to one side. It does not feature in my thinking or in the decision that I have come to.
The appeal
[12] Ms Hart, Ms Rahman’s counsel on the present appeal, contends that the Judge dealt with the s 94 issue as an afterthought and that he failed to give sufficient weight to the desirability of making orders that would enable Ms Rahman to break the cycle of offending in which she is currently entrenched.
Analysis
[13]Section 94 of the Act relevantly 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.
(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 t
…
[14] I do not accept that the Judge dealt with the s 94 issue as an afterthought. He dealt with it early in his sentencing remarks. Further, as the passage set out above demonstrates, he clearly gave consideration to the issue of whether it was in the public
interest for orders under s 94 to be made. For the reasons he gave, he did not consider such orders to be appropriate.
[15] However, it is worthwhile considering the policy considerations underpinning s 94. In Governor v Police the Court of Appeal observed:2
[11] Section 94 was enacted to address the fact that many offenders fail to comply with court-ordered periods of disqualification and, if this happens sufficiently often, that offender becomes caught up in a never-ending cycle of disqualification. The person is disqualified for some offence, say careless driving; breaches the disqualification and is charged accordingly; a further period of disqualification is imposed; this is then breached; and this breach is followed by a further charge, and on it goes. The rationale for s 94 was that a community-based sentence might be more likely to engender compliance with court orders, with the added advantage of being a step short of imprisonment.3
[16] The Court noted in Governor that orders under s 94 are not to be made as a matter of routine or in every case where a recidivist offender appears for sentence. Rather, the court must analyse the circumstances of both the offending and the offender to determine whether they are appropriate in the circumstances of the case:
[40] Section 94 is an enabling provision. It was enacted to permit the Court to impose a community-based sentence, which might be advantageous and in the public interest for any number of reasons. However, the Court is not required to impose such a sentence. It must be satisfied that a further period of disqualification is inappropriate having regard to the matters in s 94(1)(b), and that a community-based sentence would be appropriate. The nature of the offending for which the offender is before the Court, and his or her driving record, will be relevant to whether a community-based sentence is an appropriate substitute for disqualification. Section 94(1)(b)(i) expressly requires the Court to have regard to the circumstances of the case and of the offender and, as this Court said in Lally v Police, disqualification periods still have an important function under the new regime.4
[17] In the present case there are aspects of Ms Rahman’s offending that are of concern. These flow from the fact that the offending on 23 May 2021 and 13 January 2022 had the potential to place other motorists and pedestrians at risk. Fortunately, however, none of her offending has caused actual harm to any other person.
2 Governor v Police [2021] NZCA 403 (footnote omitted).
3 See for instance Police v Body [2013] NZHC 1586 at [5].
4 Lally v Police [2019] NZCA 286 at [13].
[18] Further, Ms Rahman’s traffic history demonstrates that she is now firmly entrenched in a pattern of offending that has resulted in her appearing before the courts on a regular basis on charges of driving whilst disqualified and, less frequently, driving with excess blood or breath alcohol. As I have already recorded, the present orders for disqualification mean that she will not be able to drive for a period of approximately 15 months. This must give rise to a real risk that she will become frustrated and thus tempted to drive again whilst disqualified. In that event she would be a candidate for a sentence of imprisonment given that she received a sentence of home detention on the present charges. Importantly, Ms Rahman has thus far never sought orders under s 94 so as to enable her to break her cycle of offending.
[19] By the time the Judge came to sentence Ms Rahman she had not been before the Courts for a period of nine months. She had also taken several steps towards rehabilitation. She had obtained a restricted licence and had also met the cost of having an alcohol interlock licence installed in her vehicle. This poses a problem for many offenders in Ms Rahman’s position because of the expense entailed in installing the device. She had also obtained part-time employment, and this required to her to be able to drive to work. Ms Hart advised me during the hearing that the sentences the Judge imposed caused Ms Rahman to lose her employment but that she may be able to regain it if she is able to obtain a licence. She has now completed the sentence of home detention the Judge imposed.
[20] Given these factors I am satisfied it was not only in Ms Rahman’s interests but also in the public interest for the Judge to exercise his powers under s 94 so as to provide Ms Rahman with an opportunity to break her cycle of offending.
[21] However, the mandatory period of disqualification prescribed by s 65AC of the Act on the charge relating to driving with alcohol in the blood whilst subject to an alcohol interlock licence, means that the making of orders under s 94 is not a straightforward exercise. I record that following the hearing, and at my request, I received a very helpful memorandum from Ms Nash on the Crown’s behalf setting out the orders that would need to be made to achieve an appropriate outcome in the present case.
[22] It is not necessary to disturb the sentences of home detention that Ms Rahman has now served because they remain an appropriate punitive measure to reflect the overall gravity of her offending.
[23] The charge of driving with alcohol in the blood whilst subject to an alcohol interlock licence requires the imposition of an alcohol interlock sentence under s 65AC of the Act. This means that s 94 cannot apply, and the mandatory period of disqualification required by s 65AE must be imposed, unless there are special circumstances relating to the qualifying offence.5 There are no special circumstances that relate to Ms Rahman’s offending on this charge. This means the order disqualifying her from driving for 28 days on that charge cannot be disturbed. However, the orders I propose to make under s 94 on the remaining charges mean that the order for disqualification commenced on the day the Judge sentenced Ms Rahman. By my calculation it expired on or about 12 December 2023.
[24] On the charge of driving with alcohol in the blood whilst subject to an alcohol interlock licence the Judge also made orders under s 65AC(2) of the Act. These included an order under s 65AC(2)(b), which authorises an offender to apply for an alcohol interlock licence at the end of the 28-day period of mandatory disqualification. The offender is disqualified from holding any licence other than an alcohol interlock licence.6 Once an alcohol interlock licence has been granted, the offender will be permitted to apply to replace it with a zero alcohol licence once he or she has complied with the terms of the alcohol interlock licence for 12 months.7 The orders the Judge made under s 65AC(2) are appropriate and I do not propose to disturb them.
[25] If orders are to be made under s 94 on the other charges it is necessary to replace the orders for disqualification imposed on those charges with a community- based sentence.8 Home detention is not a community-based sentence. It follows that it will be necessary to sentence Ms Rahman to community work in addition to the sentence of home detention she has already served. Counsel agree that a sentence of 50 hours community work would be appropriate.
5 Land Transport Act 1998, s 65AC(3).
6 Section 65AC(2)(c).
7 Section 65AC(2)(d).
8 Land Transport Act 1998, s 94(3).
Result
[26] The appeal is allowed in part to the extent that the orders for disqualification on the charges of driving whilst disqualified and driving in vehicles that were not fitted with an alcohol interlock device are set aside. In their place I order Ms Rahman to perform 50 hours of community work on each charge. Those sentences are to be served concurrently.
[27] The appeal against sentence is dismissed on the charge of driving with alcohol in her blood whilst Ms Rahman was subject to an alcohol interlock licence. However, I confirm that the period of 28 days disqualification imposed on that charge commenced on 15 November 2023.
Lang J
0
3
0