Skelton v Police

[2015] NZHC 1735

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-161 [2015] NZHC 1735

BETWEEN

WESLEY KARAKA SKELTON

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	28 July 2015
Appearances:	P H H Tomlinson for Appellant E T Fletcher for Respondent
Judgment:	28 July 2015

ORAL JUDGMENT OF WHATA J

Solicitors:

Kayes Fletcher Walker, Crown Solicitors, Manukau

Copy to:

P H H Tomlinson, Auckland

SKELTON v NEW ZEALAND POLICE [2015] NZHC 1735 [28 July 2015]

[1]      Mr Skelton pleaded guilty to one charge of driving a licence suspended third

and subsequent.  A sentence of 12 months’ disqualification together with a fine of

$500 was imposed.  He now says that the Judge sentencing him wrongly exercised her discretion in declining an application pursuant to s 94 of the Land Transport Act

1998 to avoid mandatory disqualification.

Background

[2]      Mr Skelton is 27 years old and until earlier this year had sole custody of his seven year old child.

[3]      On 30 March 2012 and then again on 11 October 2012 Mr Skelton was convicted  on  charges  of  driving  while  disqualified.     On  10 February  2015, Mr Skelton being the holder of a full driver licence with excess demerit points, had his driver’s licence suspended for a period of three months, until 9 May 2015.  The consequences of driving were explained to him and understood.

[4]      At about 5.00 pm on Tuesday 28 April 2015 Mr Skelton was the driver of a BMW motor vehicle travelling on Hallberry Road, Mangere East.  He was unable to produce a driver’s licence and police checks revealed that he was suspended from driving.  In an affidavit filed in support of his application Mr Skelton noted that he had lost his licence through demerit points for such things as no safety belt or warrant of fitness.  He says none of the points were for speeding.  He said that he drove the car on this occasion because the car belonged to people who were moving out that day and the car had to be moved.   He discussed it with his friend who wanted to sell it.  He said he could sell it to his brother who lived within 500 metres. He says that his intention was to drive to his place and no further.  He notes also that he had about two weeks left on his disqualification and was even more regretful of the driving.

[5]      He also says that he sought an opportunity to get work and recently was offered a job that involved light transport delivery of goods to vending machines around Auckland.  As he was disqualified, however, the job was offered to another driver.

[6]      He says he is actively seeking work.

Judge’s decision

[7]      The Judge provides the following narrative as to background:1

[2]       I accept that you were disqualified in March 2012 and again in October 2012, and then on 10 February this year you were the holder of a full driver’s licence, but you were disqualified because the demerit points reached the maximum point.   Your licence was suspended for a period of three months until 9 May 2015.

[3]       Had you done nothing, you would have your licence back now but, unfortunately, you allowed yourself to be persuaded to assist your family by driving your motor vehicle, which was in storage at a particular address, to your brother’s address, which I am told was about 500 metres away.  That was a wrong decision and one which now has consequences for you.  The consequences would be the potential for a maximum of two years’ imprisonment, or a fine of $6000 maximum, and a minimum disqualification of a period of one year.

[4]       Your lawyer is now asking me to consider not disqualifying you on the basis that you have been disqualified before.   Your history shows that you have been driving while disqualified in the past and that is what caused you to be disqualified this time.   There is no suggestion of any alcohol impaired driving since 2012, and I think that is something that has to be taken into account in your favour.

[5]       At this stage it is said that you have been without work for some time, but you have made specific efforts to obtain work recently.   Firstly, there was your attempt to obtain a job as a courier driver with your uncle.  It would have been necessary for you to make this application before he would be able to employ you and he was not prepared to wait.   The second job application related to a warehousing job, but this matter also needed to be dealt with and that employer was not prepared to wait either.  It is argued, on your behalf, that future job applications may also be affected by the fact that you are a disqualified driver, should that be the order of the Court today.

[6]       I have read your affidavit, you refer to demerit points, you say none of the points were for speeding, but I have now got fuller information about that and I understand that one was for using a cell phone while you were driving and one was for going through a stop sign and another one was for exceeding the speed limit at that particular area, but there is no indication that you have been habitually exceeding the speed limit.

[7]       On this occasion I accept that there was some pressure in order to move the car, but I think with a little bit of organisation you could have found another way to move the car before leaving it to the last possible minute.

[8]       the issue now is whether you are in fact on a treadmill on a cycle of re-offending and whether in fact matters have reached the point where s 94 should be invoked.

[8]      The Judge concludes:

[12]      Taking all of these matters into account, and taking into account the fact  that  you  have  come  here  today  with  a  history  of  driving  that  has attracted demerit points, and you have breached the suspension, I do not consider that a s 94 application is appropriate at this stage, so I am not going to avoid the disqualification in your case.

Record of offending

[9]      Helpfully, Mr Fletcher produced Mr Skelton’s Demerit Points Report.    It shows that:

(a)      The appellant’s demerit points suspension on 10 February 2015 was the third such time he has lost his licence for excess demerit points (the other occasions being May 2010 and July 2011);

(b)      The appellant accumulated 105 demerit points in 18 months between

14 May 2013 and 12 November 2014;

(c)     Before his suspension notice was served in February 2015, he accumulated another 50 demerit points;

(d)      The appellant’s demerit point offences between 14 May 2013 and 24

December 2014 were:

(i)       Restricted driver carries unauthorised passenger; (ii)    Operated an unlicensed motor vehicle x 4;

(iii)     Failing to stop at a stop sign;

(iv)     Driver used a mobile phone while driving;  and

(v)      Exceeded 100 km/h posted speed limit.

Threshold issue

[10]     As  Mr Tomlinson  notes,  s 94  is  an  exercise  of  statutory discretion.   An appellate court may only disturb such a decision in limited circumstances, namely where there has been an error of law, regard to an irrelevant consideration or failure to consider a relevant matter, and/or the decision is plainly wrong.2

Section 94

[11]     Section 94 states that:

94       Substitution of community-based sentences

(1)      This section applies if—

(a)       The offender has previously been ordered on conviction for an offence to be disqualified from holding or obtaining a driver licence; and

(b)      The court, having regard to—

(i)       The circumstances of the case and of the offender;

and

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

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

(iv)     The interests of the public,—

considers that it would be inappropriate to order that the offender be disqualified from holding or obtaining a driver licence;  and

…

Argument

[12]     Mr Tomlinson  submits  that  the  appellant  fulfils  the  statutory criteria  for consideration  of  and  granting  of  the  application.    He  emphasises  the  following factors:

(a)       The car needed to be moved;

(b)      This was the only time of apprehension in the period of suspension; (c)        There is no issue with the summary of facts;

(d)      There is no suggestion of driving at risk to passengers or to the public; (e)     The nature of the offence is in the lowest category of seriousness;

(f)       The proposed distance to be travelled was not large;

(g)Until earlier this year the appellant had the sole care of his child, who is now, however, living with his mother who resides in Hamilton (and the appellant resides in Auckland);  and

(h)      The appellant is actively seeking work.

[13]     Mr Tomlinson also submitted that the appellant does not have an extensive history of offending, but there is a risk that he could get on a “treadmill of … more and more convictions”.  I come back to that issue later.

[14]     As to public interest, Mr Tomlinson says disqualification is not necessary to protect the public given the circumstances of the offending.

[15]     Mr Tomlinson also submitted that the Judge did not take into account the public interest factors in deciding whether or not to grant the application.  He says such factors include:

(a)      The need to adequately punish people who drive whilst their licence is suspended;

(b)The need to punish people who drive dangerously whilst their licences are suspended;

(c)      The  need  to  balance  the  punishment  with  the  seriousness  of  the offence;

(d)The need to have our citizens gainfully employed and not to be a burden on the State;

(e)      The need to encourage offenders to rehabilitate and be constructive members of society;

(f)       The need for offenders to be properly involved in their family and

children’s lives and upbringing, citing Beeston v New Zealand Police.3

(g)The steps taken by Mr Skelton to obtain employment should also be given due weight.

[16]     As foreshadowed above, Mr Tomlinson also initially submitted that there is a risk that with a further disqualification Mr Skelton could get on the “treadmill of … more and more convictions.”  With the benefit now of Mr Skelton’s full history of offending Mr Tomlinson submits that he is in fact already on the treadmill, and that the Judge did not give sufficient weight to this in her s 94 assessment in terms of the effectiveness of a further disqualification.

Respondent’s submissions

[17]    Mr Fletcher properly acknowledged that the Judge did not consider the circumstances of the offence, the offender and the public interest in detail.   He maintains nevertheless that she reached the correct result.  In summary, he submits:

(a)      The likely impact on Mr Skelton is not significant, given that he can make contact with his daughter via alternative means of transport and that he is not currently dependent on a car for employment;

(b)The  assessment  of  the  “effectiveness”  of  disqualification  is  not straight forward, but in any event, this is not a case of continuous sentences of disqualification that have proven to be ineffective;

prevented  by  disqualification  and  public  safety  issues  are  in  play given the reason for the demerits points, including for failing to stop

and speeding.

Assessment

[18]     The  sentencing  notes  do  not  expressly refer  to  the  circumstances  of  the offence, the offender and the public interest in detail.   While I apprehend that the Judge took into account the combination of matters set out at s 94, I am unable to discern  from  the  reasons  given  the  relative  emphasis  afforded  to  the  statutory criteria.    In those circumstances  I consider that  I should examine the weighing exercise afresh and responsibly Mr Fletcher endorsed that approach.

[19]   Reduced to its core, Mr Skelton’s case is that a further sentence of disqualification:

(a)       Will be ineffective (and counterproductive); and

(b)Is disproportionately severe to the circumstances of the offending and to his personal circumstances.

[20]     I am equivocal about the first matter, but with respect to the District Court

Judge, I agree with the last point.

[21]     Mr Skelton’s affidavit reveals two important facts (which are not challenged)

namely:

(a)       A further year’s disqualification would significantly impact on his ability to make contact with his child;  and

(b)Mr Skelton has taken  steps to obtain employment after a lengthy period of unemployment.

terms in both of these matters.  Mr Skelton’s child lives in Hamilton with his former partner and they are currently contesting custody.  The ability to gain access to her will be significantly fettered by not being able to drive in this context.   As to employment, the evidence is that Mr Skelton has sought and is seeking work in the transport industry. That evidence is not disputed.

[23]     In terms of the circumstances of the case, Mr Skelton was only two weeks away from completing the period of disqualification.  I accept that the demerit points relate to driving non-compliance that was more serious than Mr Skelton suggested in his evidence.  But it remains at the low end of the spectrum.

[24]     As  to  public  interest  considerations,  plainly  there  is  a  significant  public interest in deterrence of repeat offending.   But equally the nature of the “repeat” offending  must  be  taken  into  account  when  assessing  the  gravity of  it  and  the concerns that it raises in terms of public safety for example.  There is no suggestion that  any safety considerations  were in  play in  terms  of the disqualified  driving subject to the charge.  I note further that there is also a significant public interest in Mr Skelton being involved in the upbringing of his child and being able to obtain gainful employment.  The latter aspect has been a factor in a number of cases, as

illustrated by the decision of this Court in Yu v New Zealand Police.4

[25]     Given the foregoing, and having regard to the criteria set out at s 94 , and in particular s 94(1)(b)(i), (iii) and (iv) I respectfully disagree with the District Court Judge.   A further  12  months’ disqualification  would  be  disproportionate  to  the gravity of the offending and the circumstances of the offender, Mr Skelton.

[26]     Accordingly, the appeal is allowed and the sentence of disqualification is set aside.   The Act contemplates that I should impose a community-based sentence. Having heard from Mr Tomlinson and Mr Fletcher on this, I impose the following community-based sentence of 80 hours community work.

5.00 pm Friday 31 July 2015.