Roberts v Police

[2022] NZHC 1439

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2022-409-41 [2022] NZHC 1439

BETWEEN

CHRISTOPHER STEVEN PETER ROBERTS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	8 June 2022
Appearances:	R J Burnside for Appellant S J Mallett for Respondent
Judgment:	17 June 2022

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 17 June 2022 at 2.15 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

ROBERTS v NEW ZEALAND POLICE [2022] NZHC 1439 [17 June 2022]

Introduction

[1]    Mr Roberts was charged with driving with excess breath alcohol third or subsequent.1     He   appeared   before   Judge   Couch   in   the   District   Court   on 28 February 2022 for sentencing. The Judge sentenced Mr Roberts to four months’ community detention and disqualified him from holding or obtaining a driver’s licence for one year and one month from 1 February that year.2 In doing so, the Judge declined Mr Roberts’ application under s 94 of the Land Transport Act 1998 (LTA), to have a community-based sentence imposed instead of disqualification. Mr Roberts appeals both aspects of this sentence.

Background

[2]    On the evening of Sunday 25 July 2021, Mr Roberts was driving at excess speed near Methven, when he was stopped by police. His breath was found to contain 527 micrograms of alcohol per litre of breath. Mr Roberts was charged with driving with excess breath alcohol.

[3]    On 6 November 2021 Mr Roberts was served a notice that his licence was suspended for excess demerit points, as the police had issued an infringement notice for the excess speeding on 25 July 2021. This resulted in 50 demerit points and a subsequent loss of licence for three months until 5 February 2022.

[4]    On 28 February 2022 the sentencing took place and Mr Roberts’ application under s 94 LTA was declined. It is this sentencing decision which is appealed.

[5]    On 2 March 2022 Mr Roberts drove while disqualified (third or subsequent). He was sentenced on 16 May 2022 to 60 hours of community work after a successful application under s 94.

1      Land Transport Act 1998, s 56(1) and 56(4).

2      Police v Roberts [2022] NZDC 4520.

District Court decision

[6]    In sentencing Mr Roberts on 28 February 2022, the Judge  noted this was   Mr Roberts’ seventh alcohol driving conviction, with the previous convictions spanning the period from 1993 to 2010. It was considered by the Judge that this offending was aggravated by the fact Mr Roberts was also speeding when impaired. He also noted the offending “appears to have been further aggravated” by the fact  Mr Roberts did not have a driver’s licence when the offending occurred. In light of these factors, the Judge concluded the gravity of the offending was serious and that he would be justified in taking a starting point of 10 months’ imprisonment. However, the Judge then said he did not intend to go down that path as he considered a less restrictive sentence would be appropriate. As such, his observations about the starting point were “simply to bring home … the seriousness of [Mr Roberts’] offending”.

[7]    Turning to the application  under  s  94  of  the  Act,  the  Judge  noted  that Mr Roberts’ circumstances had changed since the making of his affidavit. At that stage he was attending a traffic management course, but by the hearing he had just started employment in this role. The first ground advanced in support of the s 94 application was that as Mr Roberts had recently obtained casual employment for a traffic management business, he required a licence in order to travel to work at a variety of locations at short notice. The second ground was that having a driver’s licence would enable Mr Roberts to transport his elderly parents to do shopping and other essential activities.

[8]    The Judge recorded that counsel was unable to provide him with a “satisfactory response” to explain why Mr Roberts’ needs could not be addressed by a limited licence and there was no bar to Mr Roberts making such an application. The Judge noted a limited licence could restrict Mr Roberts’ driving to what is necessary to relieve extreme hardship to himself or undue hardship to others and could have the additional benefit of being subject to relevant conditions.

[9]    The Judge considered it desirable that Mr Roberts retain his employment, and consequently, backdated the start date of Mr Roberts’ disqualification so that the normal stand down period of 28 days would not prevent him from applying for a

limited licence straight away. As the Judge viewed a limited licence as the correct way to deal with the issues here, he declined to grant the application under s 94 of the Act.

Principles on appeal

[10]   Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.3

Section 94

[11]   Section 94 LTA provides discretion for the court to substitute a period of disqualification for a community-based sentence. This discretion is available if the offender has previously been disqualified from driving.4 It can be exercised if it would be inappropriate for the offender to be disqualified. In deciding that, the Court must have regard to:

(a)the circumstances of the case and the offender;

(b)the effectiveness or otherwise of a previous order of disqualification made in respect of the offender;

(c)the likely effect on the offender of a further order of disqualification; and

(d)the interests of the public.5

3      Criminal Procedure Act 2011, ss 250(2) and 250(3).

4      Land Transport Act, s 94(1)(a).

5      Section 94(1)(b).

[12]   Section 94 is often employed for the benefit of offenders stuck on the “wheel of offending”.6 However it is well-settled that this section is not limited to recidivist offenders.7

[13]   If the Court determines not to make an order of disqualification, then it must impose a community-based sentence.8

Submissions

Appellant’s submissions

[14]   Ms Burnside first contended the Judge erred  by  considering  the  fact that Mr Roberts was speeding at the time of the offence, as Mr Roberts had already been held accountable for that with the loss of 50 demerit points. Ms Burnside also submitted the Judge incorrectly considered that Mr Roberts did not appear to have a licence at the time of offending.

[15]   Ms Burnside next submitted the Judge erred by failing to consider material considerations and relevant circumstances of the case and the offender, pursuant to   s 94(1)(b)  of the  LTA. Ms Burnside outlined these circumstances as being that Mr Roberts was in financial stress after a work-related injury so was unable to pay for a limited licence and the time it would take to prepare and get back to the court for the granting of such a licence would impact his employment. Ms Burnside said she relayed to the Judge that Mr Roberts had only just started work and it was unknown whether the employer would provide an affidavit to support such an application. Additionally, she submitted that Mr Roberts’ attitude in rehabilitating himself and acquiring a job was a matter that should have been considered, along with Mr Roberts’ need to transport himself to his rehabilitative and medical appointments and to visit and support his elderly parents.

6      Flavell v Police [2021] NZHC 1710 at [30].

7      Jukes v Police HC Christchurch AP228/94, 5 October 1994; Emani v Police HC Auckland CRI- 2009-404-235, 28 September 2009 at [10]; and Timbrell v New Zealand Police [2018] NZHC 2397 at [7]–[13].

8      Land Transport Act, s 94(3).

[16]   Although acknowledging the Judge had said it was desirable for Mr Roberts to retain employment, Ms Burnside submitted the Judge placed so much weight on the appropriateness of a limited licence that he closed his mind to the circumstances of Mr Roberts that would support a substituted sentence under s 94 of the LTA.

[17]   Ms Burnside also submitted the Judge erred in his statement that Mr Roberts’ personal circumstances had changed significantly, so that the matters outlined in his affidavit had become “somewhat dated”. In fact, the only personal circumstance outlined in the affidavit that had changed was that Mr Roberts had gained employment. Everything else in the affidavit (such as Mr Roberts being on ACC up until the end of February 2022, needing a licence to support his elderly parents and requiring transport to get to his medical/physiotherapy appointments) remained the same. By treating the circumstances outlined in the affidavit as “dated”, Ms Burnside submitted the Judge failed to consider all of the circumstances relevant to Mr Roberts.

[18]   Ms Burnside emphasised there was a financial and practical bar to Mr Roberts applying for a limited licence, which was not given due consideration to. She explained that two days after being sentenced on 28 February 2022, Mr Roberts drove while disqualified (third and subsequent) to attend his new casual work as a traffic controller as he needed the pay for essential items that week. Mr Roberts was sentenced for this charge on 16 May 2022 in the Ashburton District Court and granted a substituted community-based sentence instead of further disqualification pursuant to s 94 of the LTA. This decision was based primarily on Mr Roberts being in a “wheel of offending” and needing his licence for prospective work.  He  was sentenced to  60 hours’ community work in lieu of disqualification. Ms Burnside said this subsequent offending means Mr Roberts is now barred from applying for a limited licence.

[19]   Ms Burnside submitted this was a case in which it would be in the public interest for Mr Roberts to be able to resume work as soon as possible, especially after such a long period of unemployment due to a work-related injury.9 This would further

9      Citing Burgess v Police [2021] NZHC 362; and Yu v Police HC Auckland CRI-2006-404-273, 10 November 2006.

avoid a cycle of continued offending.10 A further affidavit was provided to the Court that updated the Court on these issues. Ms Burnside also advised the Court from the bar that Mr Roberts was now working in Queenstown for his current employer on a 10 day on, four day off arrangement. The employer arranged transport to and from Christchurch.

[20]   Ms Burnside likened Mr Roberts’ situation to the authority of Reddy v Police, in which the two most recent offences were within a three-month period and the Court substituted the sentence under s 94 for employment reasons “notwithstanding the unfortunate pattern that has appeared to have emerged in this case, including further subsequent offending”.11 For all these reasons she says the Judge should have imposed a substituted sentence under s 94 instead of disqualification.

[21]   As to the sentence of community  detention,  Ms  Burnside  explained  that Mr Roberts had completed two and a half months of the sentence but, on 11 May 2022, Probation Services took the bracelet off him because of this appeal. Mr Roberts was also informed that he cannot be on community detention if he continues his employment as there is no fixed address for the job. This means if the community detention sentence is not cancelled and substituted, a return to work for Mr Roberts will be delayed until he completes the remaining six weeks.

[22]   Ms Burnside submitted this Court should sentence Mr Roberts to community work in lieu of disqualification and community detention, drawing attention to the fact Mr Roberts has offered to complete a defensive driving course. She contended this could still meet the purposes and principles set out in ss 7 and 8 of the Sentencing Act 2002.

10     See Laird v Police [2021] NZHC 2005.

11     Reddy v Police [2020] NZHC 197.

Respondent’s submissions

[23]   Mr Mallett, for the respondent, submits the sentence of four months’ community detention and 13 months’ disqualification was not manifestly excessive.

[24]   While acknowledging the Judge was wrong in his assumption that Mr Roberts did not have a licence at the time of the offending, he says the Judge was correct to take into account the excessive speed as an aggravating feature of the excess breath alcohol offending. As Wild J noted in Clotworthy v Police, the manner of driving can be an aggravating feature.12 The Judge was therefore correct to say the offending could have attracted a starting point of 10 months’ imprisonment given Mr Roberts was driving at more than twice the speed limit and it was his seventh drink driving conviction. The end sentence, however, was relatively merciful, particularly when regard is had to the fact Mr Roberts committed a breath alcohol infringement offence on 5 December 2019.

[25]   In terms of the Judge’s decision under s 94 LTA declining to substitute a community-based sentence for a period of disqualification, Mr Mallett submits the Judge adequately weighed the matters in s 94 and it was open to him to conclude that a limited licence was a more appropriate remedy as additional conditions could be imposed in order to protect the community. While he accepts there is a public interest in the appellant obtaining employment, the Judge was cognisant of this but balanced that against public safety considerations to decide a s 94 order would not be appropriate. This is reinforced by the fact Mr Roberts has subsequently breached the disqualification order that he now challenges.

Analysis

Disqualification

[26]   The primary thrust of the appeal was a submission that the Judge erred in declining the application under s 94 LTA. In terms of the errors Ms Burnside submitted the Judge made, I accept that the Judge’s comment that Mr Roberts “appear[ed]” not to have had a driver’s licence was incorrect. Mr Roberts had a licence

12     Clotworthy v Police (2003) 20 CRNZ 439 (HC) at [20].

at the time. However, his speeding was a relevant aggravating feature of the offending, and the Judge was correct to take this into account. In any event, these statements were only relevant to the Judge setting a notional starting point for imprisonment that was never followed through, as the Judge considered the less restrictive option of community detention and disqualification was the appropriate course. Given the aggravating features of the offending I accept the respondent’s submission that the sentence actually imposed was relatively merciful.

[27]   It is clear the Judge did not disregard the content of Mr Roberts’ affidavit, as suggested by Ms Burnside, as he referred to the evidence that Mr Roberts needed to drive his elderly parents to carry out essential activities. There was nothing in that affidavit which went so far as to suggest Mr Roberts could not pay for a limited licence application, particularly now he had employment. Indeed, the Judge observed:13

[7]  I  have  heard  lengthy and detailed submissions  today from counsel. The one issue, however, which counsel was unable to provide me a satisfactory response [to] was why the issues raised by the defendant could not be addressed by a limited licence as opposed to the application of s 94.

[28]   Instead, the Judge viewed matters in a more favourable light to Mr Roberts by considering his recent employment in addition to the matters set out in his affidavit. He also adjusted the start date of the period of disqualification to minimise its impact on Mr Roberts’ employment.

[29]   In terms of s 94(1)(b) I am satisfied the Judge considered the relevant circumstances of the case and the offender, as it was presented to him, and he was clearly alive to the need to facilitate retention of Mr Roberts’ employment.

[30]   Counsel also submitted the Judge placed too much weight on the option of a limited licence. Ms Burnside assumed s 103(2) of the LTA now precluded Mr Roberts applying for a limited licence given his subsequent conviction. However, I was not satisfied that assumption was correct and reserved leave for counsel to confer and submit a memorandum on whether Mr Roberts was precluded from applying for a limited licence. Counsel now confirm, and I agree, that he does not fall within the

13     Police v Roberts, above n 2.

ambit of this section. Section 103(2)(c) does not apply because at his sentencing on 16 May 2022 he was not disqualified from holding or obtaining a driver’s licence. Rather, Mr Roberts was granted a s 94 community-based sentence in substitution. Section 103(2)(d) also does not apply to Mr Roberts because driving while disqualified is not one of the sections listed which would otherwise trigger the restriction on applying for a limited licence.

[31]   As a consequence, contrary to what was submitted, Mr Roberts remains eligible to apply for a limited licence.

[32]   In terms of public safety considerations, Mr Roberts’ demerit point and licence suspension history report shows he drove with a  breath alcohol  level  exceeding  250 micrograms of alcohol per litre of breath but not more than 400 micrograms on  5 December 2019. Prior to that his most recent conviction for driving with excess alcohol (third or subsequent) was for offending that took place in 2009. Before this, Mr Roberts drove with excess alcohol on five occasions from 1993 to 2008. I accept there is a significant gap in Mr Roberts’ history of convictions, but the current conviction for driving with excess breath alcohol third or subsequent, and at excessive speed, is indicative of irresponsible driving, which the public should be protected from.

[33]   However, it is also generally in the public interest that Mr Roberts resumes employment. This will assist him in avoiding adverse financial consequences and may also assist in him further developing pro-social attributes. He now has employment despite his lack of driver’s licence (with his transport to and from work being organised by his employer) and retains the ability to apply for a limited licence for essential purposes. That is sufficient, in my view, to support Mr Roberts’ rehabilitation.

[34]   I am satisfied the Judge had regard to the relevant factors under s 94 of the LTA and exercised his discretion appropriately in refusing that option.

Community detention

[35]   Mr Roberts was sentenced to four months’ community detention. He still has six weeks of this sentence to serve, as his bracelet was taken off him on 11 May 2022 after the commencement of this appeal.

[36]   The main objection to this sentence is that it will interfere with Mr Roberts’ ability to continue his current employment. The  basis for this is the evidence that  Mr Roberts now has employment with Phoenix Steel Ltd which he could not continue while on community detention as it requires him to work at different locations throughout the South Island, but most likely in Queenstown.

[37]   However, the job he now has was not known to the Judge at the time of sentencing, and the sentence of community detention was imposed when it could be served while still enabling him to work locally.

[38]   A sentence does not automatically require revision because circumstances subsequent to the sentencing decision make it more onerous. As noted in R v Shipton, the discretion to vary the sentence is not unfettered:14

… this Court does not embark upon the sentencing afresh nor substitute its own opinion for that of the original sentencer. There must be an error vitiating the exercise of the original sentencing discretion. In short, this Court must proceed on an “error principle”.

[39]   While some exceptions to this approach can be found, in my view, the more appropriate course in Mr Roberts’ case is for him to proceed under s 69I of the Sentencing Act. That section provides that:

Variation or cancellation of sentence of community detention

(1)An offender who is subject to a sentence of community detention, or a probation officer, may apply, in accordance with section 72, for an order under subsection (3) on the grounds that—

…

(c)having regard to any changes in circumstances since the sentence was imposed and to the manner in which the offender has responded to the sentence,—

14     R v Shipton [2007] 2 NZLR 218 (CA) at [138].

(i)the rehabilitation and reintegration of the offender would be advanced by the suspension or variation of the curfew period; or

(ii)the continuation of the sentence is no longer necessary in the interests of the community or the offender.

…

(3)On an application under subsection (1) or (2), the court may, if it is satisfied that the grounds on which the application is based have been established,—

(a)suspend or vary the curfew period; or

(b)vary the curfew address; or

(c)cancel the sentence; or

(d)cancel the sentence and substitute any other sentence (including another sentence of community detention) that could have been imposed on the offender at the time that the offender was convicted of the offence for which the sentence was imposed.

[40]   I consider what Mr Roberts is really seeking, in practical terms, is to vary the sentence of community detention, or substitute it, in a way that would facilitate his continued employment. Although I am seized of the matter on appeal, I do not have jurisdiction to consider an application under s 69I. Under s 72 of the Sentencing Act, it must be brought in the District Court.  What I will do is defer the date on which  Mr Roberts’ sentence of community detention is to resume, to 1 August 2022. This will allow him time to make appropriate arrangements with his employer to serve the balance of this sentence or, alternatively, to make an application under s 69I to the District Court, perhaps supported by Mr Roberts’ probation officer, to facilitate him maintaining his current employment.

[41]   In summary I do not see the period of community detention imposed as manifestly excessive. Driving with excess breath alcohol third or subsequent is a serious offence which warrants a degree of denunciation and deterrence. For these reasons, I am not prepared to modify that aspect of the sentence on appeal.

Result

[42]   The appeal is dismissed. The sentence imposed was not manifestly excessive. However, acknowledging Mr Roberts’ efforts at finding employment and in order to assist in his rehabilitation, I defer the recommencement of the balance of his community detention sentence to 1 August 2022.

Solicitors:

Roz Burnside Law, Christchurch Raymond Donnelly & Co., Christchurch