Ryan v Police
[2021] NZHC 2474
•20 September 2021
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CRI-2021-425-000015
[2021] NZHC 2474
BETWEEN TASMAN JAMES RYAN
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 20 September 2021 Appearances:
O L Taylor for Appellant
R T Nye-Wood for Respondent
Judgment:
20 September 2021
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 20 September 2021 at 4 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Introduction
[1] The appellant, Tasman Ryan, pleaded guilty to a charge of threatening to injure.1 On 14 May 2021, he was sentenced by Judge Brandts-Giesen to two months’ imprisonment and disqualified from driving for a period of six months.2 Mr Ryan appeals the disqualification order, saying:
1 Summary Offences Act 1981, s 21(1)(a). Maximum penalty three months imprisonment.
2 Police v Ryan [2021] NZDC 9429.
RYAN v NEW ZEALAND POLICE [2021] NZHC 2474 [20 September 2021]
(a)he was not on notice that such an order would be sought;
(b)the Judge did not give reasons why the discretion to disqualify under s 124 Sentencing Act 2002 was exercised; and
(c)in the circumstances of the case, disqualification served no sentencing purpose.
Leave to appeal out of time
[2] The statutory timeframe for filing an appeal against sentence is 20 working days from the date of judgment appealed against.3 Mr Ryan filed his appeal on 2 August 2021, approximately three weeks outside the statutory timeframe. Accordingly, leave to appeal is required.
[3] In explanation of the delay, counsel advises Mr Ryan was told by his previous lawyer that he did not have any grounds to appeal.
[4] The touchstone in determining an application for an extension of time is the interests of justice in the circumstances of the case.4 The relevant factors were summarised in R v Lee as follows:5
… factors of relevance to the balancing test include the wider interests of society in the finality of decisions, the strength of the proposed appeal, whether the liberty of the subject is involved, the practical utility of any remedy sought, the extent of the impact on others affected and on the administration of justice, and any prejudice to the Crown.
Relevant considerations include the merits of the appeal and the reasons for the delay.6
[5] The respondent opposes leave being granted. It is submitted there is no evidence to support the application and there is little practical utility in the remedy sought. It is noted Mr Ryan was sentenced on 22 April 2021 to two years and
3 Criminal Procedure Act 2011, 248(2).
4 R v Knight [1998] 1 NZLR 583 (CA).
5 R v Lee [2006] 3 NZLR 42 (CA) at [99], cited in Smith v R [2021] NZCA 169 at [5].
6 At [108]. See also Mikus v R [2011] NZCA 298 at [26], citing R v Slavich [2008] NZCA 116 at [14].
one months’ imprisonment for offending on 3 November 2020. On the face of it, he will still be serving this sentence for the duration of the disqualification sentence.
[6] I accept no evidence has been filed to support the application. However, the delay in filing the appeal is modest and a reason for the delay has been provided, albeit informally. I consider there is more utility in allowing the appeal to proceed and to address its merits, given this analysis would need to be done to consider the question of leave in any event. Accordingly, leave to appeal out of time is granted.
Background
[7] On 31 August 2020, the victim, a Court bailiff, attended Mr Ryan’s address to execute a warrant ordering the seizure of Mr Ryan’s vehicle. Mr Ryan was not at his address, but arrived shortly after the victim, and parked his vehicle behind the victim.
[8] Mr Ryan confronted the victim and began to yell at him in an aggressive manner before getting out of his vehicle. The victim informed Mr Ryan his vehicle was being seized. Mr Ryan continued to be verbally aggressive. He then advanced towards the victim taking his sunglasses off and clenching his fists, making the victim fear for his safety. The victim stepped back and activated his safety alarm.
[9] Mr Ryan then returned to his vehicle, reversed, and then drove it towards the victim, narrowly missing him.
District Court decision
[10] Judge Brandts-Giesen gave a brief decision, noting that bailiffs are officers of the Court and “their task is a difficult enough one without people like you reacting in the way you did”.7 He also noted Mr Ryan had previous convictions for assault and, most recently, a conviction of wounding with intent to injure. He then sentenced Mr Ryan as follows:8
… I sentence you to two months in prison, cumulative on your present term of imprisonment. I also disqualify you for six months from today, bearing in
7 Police v Ryan, above n 2, at [2].
8 At [4].
mind that a motor vehicle was involved in this offence and it could be said that you were trying to get away.
Principles on appeal
[11] 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.9 As the Court of Appeal mentioned in Tutakangahau v R quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.10 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.11
Submissions
Appellant’s submissions
[12] Mr Ryan appeals solely against the imposition of the period of disqualification from driving.
[13] The first ground of appeal is the Judge erred in not giving any reasons in for exercising the discretion to disqualify under s 124 Sentencing Act nor for the length of disqualification ordered. Ms Taylor, for Mr Ryan, draws a comparison between the circumstances of this case and those of Mathias v Police.12 There, the District Court did not give an explanation as to why the order was needed for punitive reasons or to protect the public, in the circumstances of the case.13 Here, Mr Ryan will be in prison for most, if not all, of his disqualification period, so there is little, if any utility in the order.14
9 Criminal Procedure Act 2011, ss 250(2) and 250(3).
10 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
11 Ripia v R [2011] NZCA 101 at [15].
12 Mathias v Police [2016] NZHC 959.
13 At [41].
14 I was advised by counsel that Mr Ryan was remanded in custody prior to being sentenced in April 2021 to 25 months’ imprisonment so he may be eligible for parole before the period of disqualification ends.
[14] The second ground of appeal is Mr Ryan was not warned that the discretion pursuant to s 124 was going to be exercised and, therefore, he was not able to address the Court on that issue. Ms Taylor refers to Wright v Police where the High Court set aside a disqualification order because the appellant was not given warning that a 124 order may be made and, therefore, was not given the opportunity to address the court on the issue.15
Respondent’s submissions
[15] The respondent opposes leave to appeal being granted out of time, because the delay in appealing is not supported by evidence and the merits of the appeal are weak.
[16] Mr Nye-Wood submits the exercise of the s 124 discretion was appropriate and not wrong in principle, in the circumstances of this case. The District Court Judge provided reasons for engaging s 124 when he stated “bearing in mind the motor vehicle was involved in this offence”.16 In the respondent’s submission, reasons do not need to be lengthy and can be read in light of pre-sentence exchanges between the court and counsel.17
[17] However, if this Court considers the reasons given were inadequate, Mr Nye-Wood submits the appropriate approach on appeal is to consider the matter afresh. If that exercise is conducted, the respondent submits a six month period of disqualification is appropriate and in accordance with the principles and purposes of sentencing. It is submitted the use of the vehicle in this case was more critical to the offending behaviour than in Mathias, where the driver fled the scene of a burglary with items in the boot of the car.18 Here, the respondent submits, Mr Ryan’s ability to drive the vehicle directly contributed to the offending, namely, intimidating the victim. Furthermore, the sentence has utility, both to hold the offender accountable and to deter him and others from such offending. He may be eligible for parole before the disqualification period ends and, in any event, will have to apply to have his licence
15 Wright v Police [2020] NZHC 2980 at [16].
16 Police v Ryan, above n 2, at [4].
17 Kennedy v Ryan [2015] NZCA 257.
18 Mathias v Police, above n 11.
reinstated at the end of his sentence, which has an element of punitive effect on the offender.
[18] In relation the second ground of appeal, the respondent submits if it is found that Mr Ryan was not given the opportunity to be heard on the s 124 disqualification, the appropriate remedy is to consider the matter afresh. Again, the respondent submits the six month period of disqualification is appropriate.
Discussion
[19] Section 124 provides the court with power to disqualify offenders from driving if a person is convicted of an offence punishable by imprisonment, not being an offence under the Land Transport Act 1998. Relevantly, s 124(2) provides:
(2)A court may exercise the power in subsection (3) if a person is convicted of an offence referred to in subsection (1) and the court is satisfied that,—
(a)the commission of the offence was facilitated by the use of a motor vehicle by the offender, whether or not the offender was the driver or person in charge; or
(b)a motor vehicle was used by the offender, whether or not the offender was the driver or person in charge, for the purpose of facilitating his or her flight or avoiding his or her detection or arrest after the commission of the offence.
No opportunity to be heard
[20] I start with whether Mr Ryan was on notice that an order of disqualification was sought. The legal discussion before the District Court has been provided to this Court. It records the prosecutor, having read the summary of facts for the Court, made the following submission:
You have his history, Sir, and I would ask the Court to consider the matter of disqualification in terms of sentencing. It is acknowledged however that the defendant is a sentenced prisoner and any disqualification may well, for six months or thereabouts, may well be expired before he gets out of jail, Sir.
[21] In my view, Mr Ryan’s counsel was on notice that a s 124 disqualification order was sought by the prosecution and had the opportunity to address the Court on this issue, although it appears he did not do so. The case of Wright v Police can be
distinguished.19 There, neither the appellant nor the respondent were given warning that a s 124 disqualification order may be made and were not afforded the opportunity to address the Court.
[22]I do not consider Mr Ryan was denied his right to be heard on this matter.
Disqualification under s 124 Sentencing Act 2002
[23] The District Court Judge provided only cursory reasons as to why s 124 was engaged and failed to articulate why disqualification was appropriate. I consider the Judge erred in that regard. As such, I consider the matter afresh.
[24] The summary of facts records Mr Ryan “started the vehicle before proceeding to reverse and drive towards the victim who was situated out the front of the address narrowly missing him.” This conduct may be viewed as a continuation of the intimidation of the victim by approaching him with clenched fists.20 Judge Brandts-Giesen, however, took the view that Mr Ryan was attempting to flee after the offence,21 when he stated “it could be said that you were trying to get away.”22 It is not obvious from the summary of facts that the driving was an attempt to flee but I accept the threshold in s 124(2) is met on the basis the driving formed part of the threatening behaviour and the District Court Judge had discretion to disqualify Mr Ryan from driving.
[25] In Taiapa v R the Court of Appeal emphasised the loss of a licence is a way to hold an offender accountable, denounce the conduct and deter the offender and others from committing similar offending.23 The Court recognised the inability to drive may hinder an offender’s rehabilitation and reintegration. It may also offend the principle that the court must impose the least restrictive outcome that is appropriate in the circumstances.24
19 Police v Wright, above n 15.
20 Under Sentencing Act, s 124(2)(a).
21 Under s 124(2)(b).
22 Police v Ryan, above n 2, at [4].
23 Taiapa v R [2019] NZCA 524 at [28], endorsing the analysis in Mathias v Police, above n 11.
24 Sentencing Act, s 8(g).
[26] In my view, the imposition of the disqualification does not serve the purpose of protecting the public because for most, if not all the period of disqualification, Mr Ryan is removed from the community due to his sentence of imprisonment for other offending. Similarly, because of that factor, there is negligible impact upon Mr Ryan’s rehabilitation and reintegration.
[27] I accept though that a period of disqualification serves the purpose of denouncing Mr Ryan’s conduct and deterring him and others from committing similar offending. However, the imposition of the period of disqualification must be considered in the totality of the sentence imposed. Mr Ryan received a period of two months’ imprisonment after pleading guilty to the charge, when the maximum penalty is three months’ imprisonment. This was a reasonably stern sentence in any event.
[28] In my view, the imposition of the period of disqualification was not the least restrictive outcome in the circumstances. The sentence of imprisonment alone is sufficient to meet the relevant sentencing principles of holding the offender accountable for the harm done, denouncing his conduct, and deterring him and others. In the circumstances of this case, where Mr Ryan will be in custody for the majority, if not all, of the period of disqualification, there is no other practical benefit of imposing such a sentence. Accordingly, I would not impose a sentence of disqualification having regard to factors relevant to the exercise of my discretion.
Outcome
[29]Leave to appeal out of time is granted.
[30] The appeal is allowed. The sentence of six months’ disqualification under s 124 is quashed.
Solicitors:
John K Fraser Law Ltd, Invercargill Crown Solicitor, Invercargill
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