Rogers v Police

[2019] NZHC 684

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI 2019-441-5

[2019] NZHC 684

BETWEEN

DAVID MARTIN ROGERS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

2 April 2019 (via AVL)

Counsel:

P Jensen for Appellant

M Mitchell for Respondent

Judgment:

3 April 2019

JUDGMENT OF ELLIS J

[1]        Mr Rogers is 29 years old. He has a limited criminal history, but it includes a number of driving convictions, including:

(a)3 March 2008 – driving with excess blood alcohol (under 20) for which he was disqualified for three months;

(b)20 September 2010 – driving with excess blood alcohol for which he was disqualified for six months;1

(c)19 December 2011 – driving with excess blood alcohol (x 2) for which he was disqualified from driving for 15 months;

1      The date of this conviction is rather unclear from Mr Rogers’ Criminal and Traffic History.

ROGERS v NZ POLICE [2019] NZHC 684 [3 April 2019]

(d)12 September 2018 – driving with excess blood alcohol for which he was disqualified from driving for one year  and  one  day and  given 80 hours of community work.

[2]        On 27 December 2018 Mr Rogers was caught driving in breach of that last disqualification. His explanation at the time was that he was going to the shops to buy a cold drink.

Sentencing in the District Court

[3]        The transcript of Mr Rogers’ appearance on 30 January 2019 begins with the entry of his guilty plea through the duty lawyer, Mr Jensen, who then sought a sentence of community work and the application of s 94 of the Land Transport Act 1998 (the Act) to avoid further disqualification.2

[4]        Mr Jensen has since candidly explained that, based on his experience in the Napier District Court, it was his expectation that s 94 would simply be applied without the need for supporting evidence addressing the considerations which s 94 says are relevant to the exercise of that discretion. The fact that the police did not oppose (or support) the application under s 94 in the District Court perhaps provides inferential support for the contention that this is, indeed, regarded as routine practice.

[5]        In any event, the transcript shows that, on this occasion, the District Court Judge (who does not usually sit in the Hawke’s Bay) simply:

(a)referred to Mr Rogers’ past driving offending;

(b)queried whether s 94 could apply given the extant disqualification;

(c)clarified the start date of any future disqualification; and

2      In general terms, s 94 applies to offenders who have previously been disqualified and who are facing further disqualification. It enables the Court to substitute a community based sentence instead of such further disqualification if, after considering certain specified matters, it considers further disqualification would be inappropriate.

(d)then sentenced Mr Rogers to 100 hours community work (cumulative on the 80 hours he was sentenced to on 12 September 2018) and a further six month period of disqualification (cumulative on the one year and one day disqualification, to commence on 13 September 2019).

[6]        No reasons were given for rejecting the application of s 94 or for the length and cumulative application of the sentence of community work.

The parties’ positions on appeal

[7]        Mr Rogers has appealed his sentence on the grounds that the community work sentence imposed was excessive, and that the Judge should have applied s 94. In his written submissions Mr Jensen rather self-deprecatingly said:

If the District Court Judge was disinclined to apply s 94, as was the case here, it is incumbent on the District Court Judge to be fair to the defendant, and curb the enthusiasm of the duty lawyer, and adjourn sentencing to allow the defendant to instruct counsel or apply for legal aid, and mount a more organised plea.

To allow the duty lawyer to prattle on, then sentence contrary to all that was discussed, without giving any real reasons why, is most unfair on the vulnerable defendant, and on this ground alone, counsel respectfully submits, there is a mistake in law, and the appeal ought to be granted.

[8]        Mr Jensen asked that the appeal be allowed and that the sentencing be remitted back to the District Court so that a PAC report could be ordered and all the sentencing options explored, including the alternative options of supervision and/or a fine.

[9]        On behalf of the police, Ms Mitchell opposed the appeal on the grounds that the sentence was within the available range and that no material in support of the application of s 94 had been provided (either in the District Court or on appeal). She accepted that the absence of reasons in the District Court meant that this Court would essentially need to approach the matter afresh.

Discussion

[10]      This is a rather unusual case. My preference is to determine the appeal on the merits but I do not have the necessary information to enable me to do so. There is

necessarily a concern in terms of understanding why the District Court Judge imposed the sentence he did; the cumulative 100 hours community work does on its face seem relatively swingeing.3   And there may or  may  not have been grounds for applying   s 94; no inquiry was made.

[11]      While it may be that the sentence imposed was within the available range, something does seem to have gone awry here. Section 94 is a remedial provision.  Mr Rogers should have been given the opportunity to instruct counsel about any circumstances relevant to its possible application and he should have been heard on the nature and extent of any community-based sentence. The fact that neither of these things happened is, in my view, a qualifying error.

[12]      Equally, however, any expectation that any District Court might somehow be involved in “rubber stamping” the application of s 94 in cases such as this, without first establishing the necessary grounds, is not to be countenanced and the present case should be a salutary lesson in that regard.

Result

[13]      The appeal is allowed. The disqualification and sentence of community work are quashed. The matter is remitted back to the District Court for resentencing, after affording Mr Rogers the opportunity to file an affidavit addressing matters relevant to the exercise of the power in s 94. No doubt his lawyer will, by the time of resentencing, also be in a position to address other relevant matters. If a PAC report is considered necessary for that purpose, then the necessary direction can be sought.

Rebecca Ellis J

3      There is a presumption in s 57(1) of the Sentencing Act 2002 against the imposition of a cumulative sentence where an offender is already serving an extant community work sentence.