Ryder-Ware v Police

[2022] NZHC 3172

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-404-000341

[2022] NZHC 3172

BETWEEN

KYLE HENARE RYDER-WARE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

28 November 2022

Appearances:

Tony Beach for the Appellant

Lilla Dittrich for the Respondent

Judgment:

30 November 2022

JUDGMENT OF MOORE J

[Appeal against sentence]

This judgment was delivered by me on 30 November 2022 at 12:00 pm.

Registrar / Deputy Registrar Date:

RYDER-WARE v NEW ZEALAND POLICE [2022] NZHC 3172 [30 November 2022]

Background

[1]    Kyle Ryder-Ware pleaded guilty to charges relating to firearms offending, four driving-related offences under the Land Transport Act 1998 (“LTA”) and resisting Police.1 On 1 October 2020, Judge C J Field convicted and discharged him on three of the driving-related charges, but imposed a sentence disqualifying him from driving for a period of two years on the remaining charge of failing to remain stopped.2

[2]    Mr Ryder-Ware seeks leave to appeal his sentence of disqualification out of time. He argues that in light of this Court’s decision in Martin v Police,3 the Judge erred by finding that the relevant offence was a third or subsequent offence for which disqualification must be imposed.

[3]    The Crown concedes that this was an error and accepts that the sentence of disqualification ought to be quashed and substituted for an appropriate sentence.

[4]    In light of the Crown’s position, I consider that an extension of time to bring the appeal should be granted.

The offending

[5]    For   present   purposes   it   is   only   necessary   to   briefly   summarise    Mr Ryder-Ware’s offending.

[6]    On 8 August 2020, Mr Ryder-Ware was driving a vehicle down a street in Ponsonby, Auckland. He overtook other drivers, narrowly missing oncoming traffic. The Police identified the vehicle as having stolen registration plates and pulled him over. Mr Ryder-Ware did not have a driver licence at the time. He got out of the vehicle and ran away. The Police found him hiding in the backyard of a nearby property.

1      These were for being a person on a road and failing to give his name and address; failing to remain stopped; being an unlicensed driver and failing to comply with the prohibition; and careless driving.

2      Police v Ryder-Ware [2020] NZDC 20074. See also Land Transport Act 1998, ss 52A(1)(b) and

114. If a person is convicted of an offence against s 52A(1) for a third or subsequent time, the maximum penalty is three months’ imprisonment and the court must order the person to be disqualified from holding or obtaining a driver licence for two years.

3      Martin v Police [2021] NZHC 1356.

District Court sentencing

[7]    The Judge took the firearms offending as the lead charge and imposed a sentence  of  three  months’  imprisonment.4  He  then  convicted  and  discharged  Mr Ryder-Ware on three of the four driving charges. He left undisturbed the charge of failing to remain stopped.5 The Judge went on to say that “the law requires” that he impose a disqualification of two years,6 seemingly a reference to Mr Ryder-Ware’s prior convictions from 2016. With commendable prescience, the Judge noted that he did “not know whether that is perhaps an unintended consequence of the legislation”.7

Did the Judge err by imposing the two-year disqualification period?

[8]    The issue is whether the Judge erred by imposing that two year disqualification period and whether a different sentence should be imposed.8

[9]    After the Judge imposed the disqualification, but before the disqualification period ended, this Court issued its decision in Martin. There, Palmer J determined that s 52A of the LTA, inserted by the Land Transport Amendment Act 2017, prevented a sentencing Judge to take into account previous disqualifications which pre-dated the amendment.9 Section 52A provides that if a person commits a third or subsequent offence against “subsection (1)”, the Court must order the person to be disqualified from holding or obtaining a driver licence for two years.10

[10]   Palmer J considered that s 52A did not refer to the repealed predecessor provision, although it incorporated the same wording.11 The text was clear in referring to a person “convicted for a third or subsequent offence against subsection (1) [of     s 52A]”.12 The Judge thus found that convictions pre-dating the enactment of s 52A were not captured by the provision and could not be taken into account.13

4      Police v Ryder-Ware [2020] NZDC 20074 at [1]–[3].

5 At [4].

6 At [5].

7 At [5].

8      Criminal Procedure Act 2011, s 250.

9 At [2].

10     At [2] citing Land Transport Act 1998, s 52A(5).

11 At [12].

12 At [14].

13     At [16]–[17].

[11]   Palmer J’s approach has since been followed in Hallmond v  R  and  Tongalahi v Police.14 Both parties to this appeal agree that it should be applied in the present case. For completeness I agree.

[12]   No criticism can be levelled at the sentencing Judge for imposing the disqualification prior to this Court’s decision in Martin. In fact, as previously noted, the Judge recognised that this may be an unintended consequence of the insertion of s 52A. However, I am satisfied that the Judge erred in doing so. Mr Ryder-Ware’s convictions which pre-date the amendment should not have been taken into account. For that reason the appeal must be allowed.

[13]   The next question is what should be the appropriate sentence? Given the sentence of imprisonment imposed on the firearms charges, this issue relates solely to the appropriate disqualification period (if any).

[14]   Mr Beach, for Mr Ryder-Ware, and Ms Dittrich, for the Crown, agreed that the applicable provision was s 52A(2), rather than s 52A(5). That sub-section provides that the maximum penalty for an offence against s 52A(1) is a fine not exceeding

$10,000. As Mr Ryder-Ware has served his sentence of disqualification in full, counsel agreed that this Court substituting a fine would result in double punishment. The proper result was said to be a conviction and discharge.

[15]   I agree that this is the appropriate course. The penalty for a first offence under s 52A is prescribed by ss 52A(2) and (3). Subsection (3) applies only where the driving is dangerous. The applicable penalty under s 52A(2) is a fine. To substitute a fine after Mr Ryder-Ware has served his two year disqualification period would constitute double punishment. The fine may also be incompatible with the sentence of imprisonment imposed on the firearms charges.15

[16]   It follows, in my view, that the two year disqualification period should be quashed and substituted with a conviction and discharge.

14 Hallmond v R [2021] NZHC 2369; and Tongalahi v Police [2022] NZHC 1409.

15 Sentencing Act 2002, s 19(3) and (9) provides that a fine may only be imposed with a sentence of imprisonment in respect of a particular offence if authorised by the enactment specifying the offence.

Result

[17]The application for an extension of time to bring the appeal is granted.

[18]The appeal is allowed:

(a)On the charge of failing to remain stopped, the two year disqualification from obtaining or holding a driver licence is quashed and substituted with a conviction and discharge.

(b)The sentence on the remainder of the charges is unaffected.

Moore J

Barristers/Solicitors:

Mr Beach, Auckland Crown Solicitor, Auckland