Reddy v Police
[2020] NZHC 197
•18 February 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2019-404-524
[2020] NZHC 197
BETWEEN RAKESH REDDY
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 17 February 2020 Counsel:
T Clee for Appellant
Y Olsen for Respondent
Judgment:
18 February 2020
JUDGMENT OF WHATA J
This judgment was delivered by me on 18 February 2020 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date: ………………………….
Solicitors: Kayes Fletcher Walker
RAKESH REDDY v NEW ZEALAND POLICE [2020] NZHC 197 [18 February 2020]
[1] Mr Reddy was charged on two separate occasions for driving while disqualified. On the first occasion, he was sentenced to community service and disqualification for one year and one day. On the second occasion, a community-based sentence was imposed in substitute for a mandatory period of disqualification under s 94 of the Land Transport Act 1998 (the Act).
[2] This appeal relates to the first sentence. Mr Reddy claims that he was never properly advised, in relation to the first sentence, that he could have applied, pursuant to s 94 for a sentence of community service instead of disqualification. Alternatively, he says this Court should examine whether a substituted order pursuant to s 94 should, in any event, be imposed.
[3] The appeal against the first sentence is out of time. Application for leave to appeal out of time is sought and is not opposed on the basis that Mr Reddy sought advice for a limited licence after sentencing and attention thus belatedly turned to the original sentencing outcome. Leave is therefore granted to appeal out of time.
Background
[4] Mr Reddy was sentenced on 31 May 2019 on one charge of driving while disqualified (third or subsequent). He was sentenced to 60 hours community work and one year one day of disqualification from 24 July 2019. He subsequently reoffended and was charged with driving while disqualified (third or subsequent) on 21 August 2019. Mr Reddy sought, in respect of this charge, an alternative sentence pursuant to s 94 of the Act. That was granted by Judge McIlraith. The Judge was satisfied that a substituted order could be made. In this regard, the Judge noted:
[11] There is no doubt from reading the affidavit and Mr Reddy’s criminal history that he is what is referred to as a “treadmill” offender in terms of disqualified driving. In addition he is, of course, engaged in a business which by its very nature required his driving. Relying on a substitute driver has put his business at risk and Mr Reddy is under enormous pressure, as is his family. It is clear that he will suffer extreme financial hardship if he is further disqualified and his business is at risk.
[12] The public interest in the matter calls for consideration. I accept what Mr Clee submits which is that the public interest is not to impose disqualification and it is preferable to allow Mr Reddy to find a path towards legal driving and maintaining his business.
[5] The Judge therefore substituted disqualification for a community-based sentence, namely 100 hours community work.
Evidence
[6]Mr Reddy tendered in support of his appeal:
(a)An affidavit dealing with sentencing; and
(b)information in support of a s 94 application.
[7] The respondent does not oppose the affidavit dealing with sentencing given the basis of the appeal, namely counsel error. It also does not oppose the admission of the s 94 material given that the appeal involves considerations of the merits of a s 94 application.
[8]As the Court of Appeal stated in Orchard (helpfully cited by the respondent):
4.2 In declining to receive a new victim impact statement and a psychological report concerning an appellant, the Court of Appeal in Orchard v R recently set out the test for fresh evidence on a sentence appeal:1
[23] We decline to receive either document. The question before this Court is whether the sentence imposed was erroneous and a different sentence should be imposed.2 Appellate process does not permit new evidence on a sentence appeal unless the evidence is credible, fresh and cogent:3
[16] The principles for assessing the admissibility of fresh evidence for appeals against conviction are now well established. There is no reason why different principles should be engaged where an appellant wishes to adduce fresh evidence for an appeal against sentence. Thus, if the fresh evidence is not credible it should not be admitted. If it is credible, an assessment needs to be made as to whether it could not have been presented to the sentencing Court with reasonable diligence. If the evidence is both credible and fresh it should be admitted unless the appellate
1 Orchard v R [2019] NZCA 429.
2 Criminal Procedure Act 2011, s 250(2); and Tutakangahau v R [2014] NZCA 279, [2014] 2 NZLR 482 at [30] – [31].
3 Mark v R [2019] NZCA 121, citing Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].
See also Campbell v R [2017] NZCA 623 at [15]; and Antonievic v R [2017] NZCA 87 at [39].
court is satisfied it would have had no effect on the sentence. If the evidence is credible but not fresh, the appellate court should assess its strength and its potential impact on the sentence. If the appellate court considers that the sentence could be manifestly excessive if the evidence is excluded, then it should be admitted notwithstanding that it is not fresh.
[9] The affidavit evidence is fresh and credible and thus admissible. The s 94 material while not fresh, is plainly credible, given the conclusion reached by Judge McIlraith. I therefore admit it too.
Counsel error?
[10] Mr Reddy avers that he was not advised of the option of seeking a substituted sentence pursuant to s 94 or that it was not otherwise possible to obtain a limited licence. That section states:
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 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.
[11]The rationale for s 94 was explained in Maeva v Police as follows: 4
Section 30AC of the Transport Act 1962, from which s 94 derives, was always understood to be “remedial”. It was to abstract recidivist disqualified drivers from an unending “wheel of offending”, where any further disqualification was likely only to engender further offending. It also came to be invoked when the offender could not obtain a limited licence.
(Footnotes omitted)
[12] It is common ground that failure to advise about s 94 would amount to an appealable error.5 However, Mr Maddox (who was Mr Reddy’s counsel at the time of sentencing) avers that he advised him that if he wanted to have no further disqualification, he would have to serve a sentence of community work. He did not, however, mention the terms of s 94 or that it was the only means of obtaining a limited
4 Maeva v Police HC Auckland CRI-2010-404-402, 11 March 2011 at [30]. See also Fowlds-Kotuhi v Police [2019] NZHC 985 at [18].
5 Fowlds-Kotuhi v Police, above n 4.
licence. Mr Maddox also said that Mr Reddy did not want to do community work and he had a driver to help him with his employment. Given this account, the respondent says there has been no error on the part of sentencing counsel insofar as it concerns s 94.
[13] Unfortunately, Mr Clee was unable to obtain instructions to cross-examine Mr Maddox in time for the hearing. An adjournment was not sought to enable that to occur. Mr Clee instead rested his case on what was not said, namely that a limited licence could not otherwise be sought, and this amounted to counsel error leading to sentencing error. Ms Olsen had filed a notice of application to cross -xamine Mr Reddy, but I did not consider that was necessary given Mr Maddox’s account was not able to be challenged.
[14] I have come to the view that this is not a case of counsel error. In this regard, I prefer the evidence of Mr Maddox as both plausible and credible. First, Mr Maddox is an experienced duty lawyer having practiced in that capacity since 2001. Second, his recollection was clear – Mr Reddy wanted the matter settled on the first appearance and he made him aware of the consequences of dealing with the matter that day. He said that if he wanted to avoid disqualification, he would have to serve a community sentence. As noted, Mr Maddox was not tested about this. Third, Mr Reddy was not categorical about what he was told or not told at the time. He could only recall the lawyer saying he would “try to get the minimum consequences for me”. Fourth, and notably in my view, on Mr Reddy’s own evidence he had been relying on his father to drive until his father’s health declined. There is then no appeal until after the second offending. This suggests that at the time of the first sentencing, the requirement to drive was not as pressing as it later became.
[15]This basis for review of the sentence is therefore dismissed.
Should s 94 apply?
[16] Mr Clee submits that I should, in any event, apply s 94. In support of this he refers to the following observation made by Asher J in Yu:6
6 Yu v NZ Police HC AK CRI 2006-404-000273 at [5].
[5] Given that the issue of s 94 was not addressed in the District Court, it is submitted by the Defence and accepted by the Crown that this Court has the power to consider the matter de novo. Section 119(3) of the Summary Proceedings Act 1957 gives the High Court all the jurisdiction and authority of the District Court, and full discretionary power to hear and receive further evidence. The Courts, on a consent basis, will conduct an appeal hearing in this way: R v Police (High Court Palmerston North, AP 8/95, 9 March 1995, Greig J).
[17] In that case, the District Court Judge was not asked to consider s 94. Unlike the present case, we do not know why. But I think it can be safely assumed that Asher J was not dealing with a situation where a defendant, as appears here, actively sought to avoid a community-based sentence at first instance. However, I do not consider that what Mr Reddy sought in the District Court is determinative of whether he can seek a different outcome on appeal. It remains open to Mr Reddy to challenge his sentence on the basis that it was manifestly excessive in the circumstances.7
[18] As Ms Olsen submits, this Court is exercising an error based supervisory jurisdiction on a sentencing appeal. So, this Court must identify a material error. However, that error may be either intrinsic to the decision or a result of additional material submitted on appeal, and:8
... the appellate decision ultimately focuses on the end result rather than the process by which it was reached; and once satisfied that a different sentence should have been imposed, this Court will normally substitute its own opinion for that of the sentencing judge.
[19] In the present context there is no error intrinsic to the sentence. It is correct on its face. I have also dismissed counsel error. However, the central claim now made is that while the Judge’s sentence may have been correct on the information then available to him, new information available to me, and the operation of s 94, reveals that the sentence is manifestly excessive.
[20]In the present context the “error” assessment thus involves two steps:
(a)Whether, based on the new information, an order per s 94 would have been available; and, if so,
7 As noted by the Court of Appeal in Kumar v R [2015] NZCA 460, “manifestly excessive” is a judicial gloss on the threshold test stated at s 250 at [81].
8 Above.
(b)whether the end sentence was manifestly excessive.
[21] While not literally applicable, the principle of the Sentencing Act 2002 that the least restrictive sentence be imposed per s 8(g) resonates in this context. The rationale underpinning s 94 (as explained above at [11]) is also relevant and to my mind supports a flexible approach to appeals of this kind.
Section 94 assessment
[22] Turning then to whether s 94 applies; it is common ground that Mr Reddy qualifies per s 94(1)(a) because he is an offender who has previously been ordered on a conviction for an offence to be disqualified from holding or obtaining a driver licence. I turn then to assess the application by reference to the matters set out in s 94(1)(b).
Circumstances of the case and of the offender
[23] Save for the breach of the order not to drive while disqualified, there are no aggravating features of the offending. Mr Reddy was simply found driving and stopped and it was subsequently assessed that he was a disqualified driver, to which he admitted. This is a neutral factor.
Effectiveness of previous orders
[24] Previous orders have not deterred Mr Reddy from driving while disqualified. He is, as Judge McIlraith noted, a “treadmill” offender in terms of disqualified driving. Including the subsequent offending, he now has four convictions for driving while disqualified.
Effect on Mr Reddy
[25] As to the effect on Mr Reddy, as Judge McIlraith noted, Mr Reddy’s income is dependent on his ability to drive and therefore any lengthy disqualification will have a very significant impact on him. This is a strong factor in favour of making an order.
Public interest
[26] As Lang J noted in Thomas v Police,9 the public interest will generally favour a period of disqualification being imposed. In the present case, however, those aspects of the public interest must be weighed against the public interest in the retention of gainful employment. There is here, as there was in Thomas, the public interest in ensuring persons who have paid employment and who can employ others, do not needlessly lose their livelihood. I therefore consider the public interest factor weighs in favour of Mr Reddy, rather than against him.
[27] Taking all of those factors together, and notwithstanding the unfortunate pattern that has appeared to have emerged in this case, including further subsequent offending, I am satisfied that a s 94 order would have been available to Mr Reddy had it been sought by him at first instance.
Is the sentence manifestly excessive?
[28] A curious feature of this case is that Mr Reddy drove while disqualified while subject to the order for disqualification imposed for the present offending. He does not, therefore, present as an offender who should attract the mercy of this Court on appeal. But I am prepared to take my queue from Judge McIlraith who handed down a s 94 substituted sentence for the subsequent offending. Like him, I think the imposition of disqualification on Mr Reddy would have very significant impact on him and one that should not be imposed in this case. In this regard, Ms Olsen, quite properly acknowledged that there would have been some merit in a s 94 application in the present case given the impact of disqualification on him.
[29] Ms Olsen, however, maintains that there has been no error to trigger this Court’s supervisory jurisdiction and that the appellant finds himself in a predicament of his own making. But I think there are two responses to this. First, the method by which a sentence is imposed is not the important inquiry.10 The important inquiry is whether, in the end, and in light of new information, the sentence is manifestly excessive. Second, Mr Reddy, it appears, sought disqualification only, but got both
9 Thomas v Police CRI-2010-470-15 at [29] – [30].
10 Kumar v R, above n 6 at [81].
disqualification and community work. So, even if his instructions to counsel are relevant in terms of the appropriateness of sentence, he did not get what he wanted and may exercise his appeal rights to seek a different outcome.
[30] On that basis, the appeal is allowed. While the Judge was correct on the information available to him, I am satisfied that with the benefit of the information supplied to me in relation to a s 94 application, a sentence of disqualification was manifestly excessive. The sentence of disqualification is quashed. That only leaves the issue of community service. Mr Reddy has completed the 60 hours imposed by the Judge. Mr Clee tentatively submitted that is enough given he has already served five months of the disqualification. But, given the subsequent offending, the Court’s mercy has reached its limit. A further 40 hours community service remains necessary in the circumstances of this case.
[31] I wish to record that whether a sentence of disqualification is “manifestly excessive” will depend on the facts of each case. There can be no presumption that the availability of a substituted order implies that disqualification is thus excessive.
[32] In any event, the order for disqualification is quashed and a further 40 hours community service is imposed.
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