Sadler v Police
[2021] NZCA 219
•31 May 2021 at 12.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA604/2020 [2021] NZCA 219 |
| BETWEEN | CHRIS SADLER |
| AND | NEW ZEALAND POLICE |
| Hearing: | 13 May 2021 |
Court: | Clifford, Simon France and Edwards JJ |
Counsel: | Applicant In Person |
Judgment: | 31 May 2021 at 12.30 pm |
JUDGMENT OF THE COURT
The application for leave to bring a second appeal against conviction and sentence is declined.
____________________________________________________________________
REASONS OF THE COURT
(Given by Clifford J)
Introduction
Mr Sadler pleaded guilty in the District Court to one charge of driving with excess blood alcohol (third or subsequent).[1] Mr Sadler was subsequently sentenced on 11 October 2019 to six months’ community detention, disqualified from holding or obtaining a drivers’ licence for one month, after which he could apply for an alcohol interlock licence, and ordered to pay fees and expenses of $173.[2]
[1]Land Transport Act 1998, s 56(2) and (4).
[2]Police v Sadler [2020] NZDC 26646 [District Court judgment].
Mr Sadler’s appeals against his conviction and sentence were dismissed by the High Court on 13 October 2020.[3] Mr Sadler now seeks leave to bring second appeals in this Court.[4]
Background
[3]Sadler v Police [2020] NZHC 2681 [High Court judgment].
[4]Criminal Procedure Act 2011, ss 237(1) and 253(1).
On the evening of 25 March 2018 Mr Sadler failed to stop after police officers who observed him speeding activated the siren and red and blue flashing lights on their police car. The police pursued Mr Sadler to his property, which he had driven onto and parked. The police officers spoke to Mr Sadler in his car. Mr Sadler appeared to be inebriated. He was required to undergo a breath screening test, then an evidential breath test and eventually a blood alcohol test. Mr Sadler was well over the blood alcohol limit.
Mr Sadler pleaded guilty after taking legal advice.
Mr Sadler based his appeals to the High Court on the proposition that his counsel, Mr Cooke, should have advised him he had a good defence, arising from Mr Sadler having asked the police officers to leave his property.[5] Having heard evidence from Mr Sadler and Mr Cooke, and having considered the 17 affidavits Mr Sadler had sworn in support of his appeal, Campbell J found that, as Mr Cooke had advised Mr Sadler, the police were lawfully on his property.[6] Mr Sadler’s request that they leave did not change that. Mr Cooke had neither failed to advise Mr Sadler he had a tenable defence, nor pressured Mr Sadler to plead guilty.[7] Mr Sadler’s appeal against conviction failed accordingly.
[5]High Court judgment, above n 3, at [14].
[6]At [16].
[7]At [17] and [19].
As to Mr Sadler’s sentence appeal, the Judge was satisfied that the sentence imposed by the District Court was, if anything, lenient.[8] Mr Sadler’s drink-driving conviction was his fifth.[9] Mr Sadler’s appeal against his sentence accordingly failed also.
Analysis
[8]At [26].
[9]At [24].
In support of his application for leave to bring a second appeal, Mr Sadler points again to what he says were inadequacies in the legal advice he received and the injustice of his conviction and sentence.
The Criminal Procedure Act 2011 provides that this Court must not grant leave for a second appeal against conviction or sentence unless it is satisfied that the proposed appeal involves a matter of general or public importance, or that a miscarriage of justice may have occurred, or may occur, unless the appeal is heard.[10] The Court’s decision in McAllister v R confirms the test is a high one.[11]
[10]Sections 237(2) and 253(3).
[11]McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764.
Mr Sadler submitted that the exhibits he had filed in this Court supported that submission. Those exhibits were:
1B: Copy of material from communitylaw.org.nz;
2B:Formal record of dismissal of appeal to High Court together with a copy of High Court judgment;
3B:Email from Mr Chris Sadler to Auckland Legal Aid Office, recording his dissatisfaction with aspects of his legal representation;
4B:Transcript of legal discussion in the District Court, in particular regarding time of commencement of the driving disqualification;
5B:Email dated Friday, 15 January 2021 from Mr Sadler to Crown Law (Mr Eng); and
6B:Formal document charging Mr Sadler with the offence of driving with excess blood alcohol filed in the District Court at Auckland on 6 June 2018.
Mr Sadler emphasised the significance for him, as a disabled person, of the effect of his disqualification, albeit that that has now expired, and — we infer — the possible ongoing significance of the interlock condition. His submission was that his disqualification caused him undue hardship, including when attending to life requirements such as shopping or doctors’ appointments. It also impacted on his ability to, for example, undertake full time study.
Having considered Mr Sadler’s oral and written submissions, we are satisfied that the criteria for a second appeal by Mr Sadler against his conviction and sentence are not satisfied.
Nothing in Mr Sadler’s submissions, or the material comprised by his exhibits, challenge the appropriateness of the sentence, upheld by the High Court, imposed on him by the District Court following his guilty plea. Nor do those materials add anything to the matters considered by the High Court when dismissing Mr Sadler’s appeal against his conviction.
Before us Mr Sadler submitted that a sentence of community work was available and should have been imposed. That submission is incorrect. It was mandatory for Mr Sadler, as the High Court pointed out, to be disqualified from driving for at least one year, unless an alcohol interlock sentence was ordered instead.[12] Furthermore, as Judge Collins observed, the starting point for a sentence for a fifth drink-driving offence was nine to 12 months’ imprisonment.[13] The only thing that saved Mr Sadler from a sentence of imprisonment in the District Court was the fact it had been over 10 years since his most recent drink-driving offence.[14] As Campbell J recorded in his judgment, Mr Sadler did not dispute the fact that before the District Court he had asked for the alcohol interlock sentence, as that was more beneficial to him than a year’s disqualification from driving.[15]
[12]Land Transport Act, s 56(4)(b) and (4A)(b).
[13]District Court judgment, above n 2, at [5]. See also Clotworthy v Police HC Wanganui CRI‑2003‑483‑13, 25 September 2003.
[14]At [6].
[15]High Court judgment, above n 3, at [25].
Mr Sadler’s complaint, aired we infer for the first time in the material before this Court, that Mr Cooke had wrongly suggested to the Judge that Mr Sadler’s period of disqualification should commence at 6 pm on the day of his conviction, rather than 12 am, whilst understandably irritating to Mr Sadler, has no further significance than that.
Result
The application for leave to bring a second appeal against conviction and sentence is declined.
Solicitors:
Crown Law Office, Wellington for Respondent