Stacey v Police
[2018] NZHC 3280
•12 December 2018
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2018-463-95
[2018] NZHC 3280
BETWEEN JARRED JOHN STACEY
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 29 November 2018 Appearances:
M J Toner for Appellant E F Collis for Respondent
Judgment:
12 December 2018
JUDGMENT OF PAUL DAVISON J
This judgment was delivered by me on 12 December 2018 at 4:30 pm Pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors:
Crown Solicitor, Tauranga
STACEY v POLICE [2018] NZHC 3280 [12 December 2018]
Introduction
[1] Jarred Stacey pleaded guilty to one charge of driving while disqualified (third or subsequent),1 his 21st conviction for that offence. He was apprehended driving while disqualified in Tauranga on the evening of 10 March 2018, and said that he had driven because his passenger, who is the car’s registered owner, had been drinking.
[2] Judge Cook imposed a sentence of 13 months’ imprisonment, as well as disqualification from driving for 12 months and one day.2 In doing so, her Honour declined Mr Stacey’s application under s 94 of the Land Transport Act 1998. Section 94 gives the Court a discretion to substitute a mandatory disqualification period for a community-based sentence.
[3] Mr Stacey now appeals against his sentence on the grounds that the Judge did not take into account the mandatory considerations in s 94 of the Land Transport Act and that the sentence imposed was manifestly excessive.
Mr Stacey’s personal circumstances
[4] Mr Stacey is 37 years old. He has three children, and has varying levels of contact with the two eldest. His partner says in a letter to the Court that Mr Stacey’s eldest daughter had just moved back into his full-time care weeks prior to his sentencing in the District Court.
[5] Following his release from prison in 2017, Mr Stacey obtained full-time employment as a machinery operator at an earthmoving business. His employer, who has also been a friend of Mr Stacey for 10 years, has written a letter of support to the Court. He says that Mr Stacey has a positive attitude towards his job and has worked very hard to secure a full-time position.
[6] Mr Stacey has a lengthy criminal history which includes convictions for breaching court-imposed conditions, assault (in a family violence context), shoplifting
1 Land Transport Act 1998, s 32(4); maximum penalty two years’ imprisonment or a fine not exceeding $6,000, and the Court must order the person to be disqualified from holding or obtaining a driver licence for one year or more.
2 Police v Stacey [2018] NZDC 20412.
and receiving stolen property, among other things. Relevantly for present purposes, he has an extensive record of driving-related offences. He has 20 prior convictions for driving while disqualified or unlicensed, dating back to 1998. He has previously received community-based sentences, home detention and more recently imprisonment on those charges. In November 2016, he was sentenced to one year’s imprisonment for his 20th conviction for driving while disqualified, as well as one year’s disqualification commencing from 1 August 2017. However, he has no recent convictions for driving offences involving risk to public safety, the most recent being a conviction for dangerous driving in 2006.
[7] The pre-sentence report notes that Mr Stacey’s attitude towards driving is compulsive, and he himself describes it as “like an addiction”. When given the keys, he feels he cannot turn down the opportunity to drive. The pre-sentence report writer expresses the view that Mr Stacey holds significant cognitive distortions and offending-supportive attitudes which contribute to his ongoing offending. He has had significant contact with departmental psychologists over the years, but the treatment he received was often terminated due to his disengagement and poor compliance. The report also refers to Mr Stacey’s history of failing to comply with court-imposed conditions, and states that his current home address is technically unsuitable for electronic monitoring.
[8] I have read the letters of support for Mr Stacey that have been filed with the Court. Those letters confirm the efforts he has made towards rehabilitation. He has reconnected with his teenage daughter, and secured full-time employment in which he has demonstrated his commitment and reliability.
District Court decision
[9] At sentencing Judge Cook began by setting out Mr Stacey’s history of driving while disqualified, describing it as very substantial. After discussing the pre-sentence report, her Honour recorded the submissions made for Mr Stacey, including that imprisonment would be “very much a backward step” for him, given he now had a job and increased structure and routine in his day-to-day life. The Judge noted that Mr
Stacey would lose his employment if he was sentenced to imprisonment, and would be back in the situation that he was in when previously released from prison.
[10] The Judge then went on to say that if a s 94 application were to be granted, she would necessarily impose a community-based sentence. However, having regard to Mr Stacey’s extensive criminal record, she considered that a community-based sentence would be inconsistent with other authority. By reference to Garlick v Police,3 the Judge found that a starting point of 20 months’ imprisonment would be in range. The Judge therefore concluded that an order under s 94 was unavailable. She said:4
The difficulty I have therefore is for me to step back from that starting point and offer you a community-based sentence is in my view too great a leap. You knew what you were doing, you knew the consequences of your offending and yet you have just continued to offend. You have been given options of home detention sentences. You have breached those home detention sentences. You were in prison for a year in 2016, however, you continue to usurp the authority of the Courts in terms of a disqualification and drive and whilst I accept the fact that you have made good progress in regard to your employment, as set out in the pre-sentence report, that did not prevent you getting back behind the wheel and driving again.
[11] Her Honour noted that she would have considered home detention, but the address Mr Stacey nominated was not technically suitable because it did not have GPS coverage, and he had breached the conditions of home detention in the past. The Judge considered she was left with no other option but imprisonment.
[12] Having decided to decline the s 94 application, her Honour set a starting point of 18 months’ imprisonment given the time between Mr Stacey’s last offence and this one. She then gave a full guilty plea discount, as well as deducting another half month for the pro-social steps Mr Stacey had taken, coming to an end sentence of 13 months’ imprisonment. Because her Honour had rejected the s 94 application, she also disqualified Mr Stacey from driving for the minimum period of 12 months.5
Appellant’s submissions
[13]Mr Stacey raises two grounds of appeal:
3 Garlick v Police [2016] NZHC 572.
4 At [10].
5 Land Transport Act 1998, s 32(4)(b).
(a)that Judge Cook failed adequately to take into account the mandatory considerations in s 94(1)(b); and
(b)her Honour imposed a sentence that was manifestly excessive and not the least restrictive outcome appropriate in the circumstances.
[14] Much of the appellant’s submissions are directed towards the factors in s 94(1)(b). Mr Toner for Mr Stacey submits, in substance, that the Judge did not adequately consider Mr Stacey’s circumstances – namely the steps he has taken to lead a more pro-social life and the circumstances of his offending – when considering whether to exercise the discretion under s 94.
[15] The appellant also says that her Honour focussed excessively on Mr Stacey’s history of offending, and placed too much reliance on the decision of Nation J in Garlick v Police.6 That decision involved a defendant charged with 12 charges: driving while disqualified, associated with providing false information; three charges relating to breach of release conditions; three charges of shop-lifting; and one charge of unlawful conversion of a motor vehicle. The District Court Judge in Garlick took driving while disqualified as the lead charge, and came to a starting point of 20 months on that charge, reflecting the defendant’s 17 previous convictions on similar charges. The Judge then applied an uplift from that starting point to account for the other offending. This starting point was upheld by Nation J.7
[16] The appellant submits this case can be distinguished from Garlick, because Mr Garlick faced 12 charges whereas Mr Stacey only faced one; Mr Garlick had outstanding fines and community work; and Mr Garlick did not pursue a s 94 application.
Respondent’s submissions
[17] Ms Collis for the Crown submits that the sentence imposed was not excessive. She says her Honour rightly relied on Garlick as being analogous. She further points
6 Garlick v Police [2016] NZHC 572.
7 At [10].
out that Judge Cook carefully considered whether a community-based sentence would be appropriate, but determined it would not be.
[18] Ms Collis further submits that Judge Cook was correct not to exercise her discretion under s 94. She says that her Honour did not err by failing to consider the factors under s 94, as she had already determined that a community-based sentence would be inappropriate. Under s 94(1)(c), the Court must consider it would be appropriate to sentence the offender to a community-based sentence before it can exercise its discretion to not order disqualification.
Approach on appeal
[19] This Court must allow the appeal if satisfied that there is an error in the sentence imposed on conviction, and that a different sentence should be imposed.8 In any other case, the Court must dismiss the appeal.9
[20] In deciding whether to impose a different sentence, the Court does not simply substitute its own view for that of the original sentencing Judge.10 Rather, it must be shown that the sentence is manifestly excessive or wrong in principle.11 Ordinarily the Court will not intervene when the sentence is within the range that can be properly justified by accepted sentencing principles.12 The focus is on the end result rather than the process by which the sentence was reached.13
[21] As regards the Judge’s decision to deny the application under s 94, the power to make an order under s 94 is the exercise of a statutory discretion.14 The Court therefore has limited jurisdiction on appeal: it may only interfere if the appellant can demonstrate that the Judge in the Court below erred in principle in exercising his or
8 Criminal Procedure Act 2011, s 250(2).
9 Criminal Procedure Act 2011, s 250(3).
10 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].
11 Te Aho v R [2013] NZCA 47 at [30]; and Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30]–[35].
12 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
13 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
14 Keates v Police HC Auckland CRI-2010-404-269, 21 September 2010 at [6].
her discretion; failed to take into account a material consideration; took into account an irrelevant consideration; or was plainly wrong.15
[22] The weight to be given to individual factors is a matter for the sentencing Judge. It is not for the appellate Court to say that the Judge placed undue weight on one factor, or should have placed greater weight on another.16
Discussion
[23] A third or subsequent conviction for driving while disqualified carries a maximum penalty of two years’ imprisonment or a $6,000 fine, and a mandatory period of at least one year’s disqualification from driving. Section 94 of the Land Transport Act allows the Court to substitute a mandatory period of disqualification from driving for a community-based sentence in certain circumstances:
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
(c)the court considers that it would be appropriate to sentence the offender to a community-based sentence in accordance with Part 2 of the Sentencing Act 2002.
(2) Despite any provision of this Act that requires a court (in the absence of special reasons relating to the offence) to order a person convicted of an offence to be disqualified from holding or obtaining a driver licence, the
15 Keates v Police HC Auckland CRI-2010-404-269, 21 September 2010 at [6]–[7]; see also s 250(2) of the Criminal Procedure Act 2011.
16 Keates v Police HC Auckland CRI-2010-404-269, 21 September 2010 at [18].
court may instead make an order referred to in subsection (3) if this section applies.
(3) If the court sentencing an offender determines under this section not to make an order of disqualification,—
(a)the court must impose a community-based sentence on the offender; and
(b)the imposition of such a sentence does not limit or affect the power of the court to impose any other sentence for the offence that, in accordance with the provisions of the Sentencing Act 2002, it may impose in addition to the community-based sentence; and
(c)in determining the appropriate sentence to be imposed on the offender in respect of the offence, the court must take into account the gravity of the offence and the fact that the offender would otherwise have been liable to disqualification from holding or obtaining a driver licence.
(3A) For the purposes of subsection (3)(a), the court may impose a sentence of supervision or intensive supervision as a community-based sentence if—
(a) that sentence is appropriate; and
(b) a suitable programme is available; and
(c) the offender attends a suitable programme.
(4) This section does not apply if—
(a)section 63 or section 65 applies; or
(b)the offender is prohibited from applying for a limited licence under section 103(2)(a), (b), or (d).
[24] As I noted in Poona v Police, s 94 is a remedial provision that gives recidivist offenders who may for a variety of reasons have failed to comply with the prohibition from driving while disqualified an opportunity to break the cycle of offending by substituting a different form of sentence.17 In those circumstances the exercise of the s 94 discretion is not to be regarded as a lenient sentencing option. Rather, it is the court’s choice of a penalty that more effectively meets the purposes of sentencing.18
[25]Section 94 only applies in the following circumstances:
17 Poona v Police [2018] NZHC 791 at [17]; see also Maeva v Police HC Auckland CRI-2010-404- 402, 11 March 2011 at [30]; Paikea v Police [2017] NZHC 3032 at [12]; Wilson v Police [2014] NZHC 3028 at [10]; although note the comments in Beeston v Police [2012] NZHC 1064 at [11]–
[15]recognising that an offender need not be on a cycle of offending for s 94 to apply.
18 Poona v Police [2018] NZHC 791 at [24].
(a)the offender must have previously been disqualified from driving;
(b)the Court must consider it inappropriate to order further disqualification from driving, for the reasons set out in s 94(1)(b); and
(c)the Court must consider that it would be appropriate to sentence the offender to a community-based sentence.
[26] Mr Stacey plainly meets the first requirement, having been disqualified from driving on numerous occasions before.
[27] In terms of the second requirement, Mr Toner submits that the Judge did not fully consider the factors set out in s 94(1)(b), namely:
(a)the circumstances of the case and of the offender;
(b)the effectiveness of previous orders of disqualification;
(c)the likely effect on the offender of a further order of disqualification; and
(d)the interests of the public.
[28] On my reading of the District Court decision, Judge Cook did consider these factors, albeit not extensively. At [2]–[6] of her judgment, the Judge considered the circumstances of Mr Stacey and his offending. The Judge noted the recidivist nature of his offending and his extensive criminal history, and addressed the progress Mr Stacey had made towards leading a more pro-social life as evident from his finding employment, reconnecting with his children, and obtaining a driver’s licence. At [6] of her judgment, her Honour noted the effect of a further disqualification: that he would lose his employment and would be back in the situation he was in previously.
[29] In my view, those consequences would not necessarily follow from disqualification – Mr Stacey was able to work at the earthmoving business while disqualified previously, so there seems to be no reason why he would not be able to
work there after his release from prison despite being disqualified from driving. His employer is very supportive of him, and did not indicate in his letter that he would be unable to re-employ Mr Stacey after he has served the term of imprisonment.
[30] At [10], her Honour considered the effect of previous disqualifications, noting that Mr Stacey continues to usurp the authority of the Courts, and has not demonstrated a willingness to comply with other court orders. Her Honour did not expressly discuss the interests of the public, but a Judge does not have to expressly refer to each s 94(1)(b) factor: it is enough to consider them in substance.19 Here, Judge Cook considered the need to denounce Mr Stacey’s offending and protect the community, as well as the need to promote Mr Stacey’s rehabilitation and reintegration.
[31] Taking into account all these factors, I would have reached the conclusion under s 94(1)(b) that it was inappropriate to sentence Mr Stacey to a further period of disqualification. I reiterate my comments in Poona v Police that where an offender is repeatedly driving in breach of an order of disqualification, the penalty of disqualification is demonstrably not effective in deterring the offender.20 As Mallon J concluded in Police v Body:21
Punishment for the disobedience in the form of a community-based sentence is likely to be better, particularly where the offender is suitable for community work or other community-based sentence and there are no other impediments to imposing such a sentence.
[32] However, the difficulty that Judge Cook encountered and which I am also confronted with, is the requirement under s 94(1)(c) that a community-based sentence be “appropriate”. A community based-sentence is defined in the Sentencing Act 2002 as a sentence of community work, supervision, intensive supervision or community detention.22 Judge Cook considered that none of these sentencing options were available due to the need for consistency with sentencing levels in similar cases where imprisonment had been imposed, and due to Mr Stacey’s history of non-compliance with community-based sentences. She therefore declined the s 94 application.
19 Poona v Police [2018] NZHC 791 at [25].
20 Poona v Police [2018] NZHC 791 at [23]; see Police v Body [2013] NZHC 1586 at [12].
21 Police v Body [2013] NZHC 1586 at [12].
22 Section 44.
[33] Judge Cook was correct that the availability and appropriateness of a community-based sentence limits the application of s 94. The section does not give the Court a broad discretion to refuse to order disqualification whenever it considers disqualification would be inappropriate; the circumstances of the offending and the offender must also be such that a community-based sentence can and should be imposed. I therefore turn to consider whether supervision, intensive supervision, community work, community detention, or any combination thereof was open to the Judge as a sentencing option.
[34] As noted by Judge Cook, and emphasised by the appellant in this case, there were no aggravating features to the offending itself. Mr Stacey’s driving on 10 March 2018 was unremarkable and posed no threat to public safety. However, the fact this is Mr Stacey’s 21st conviction for driving while disqualified puts the offending in a serious category. I consider Garlick v Police was an appropriate comparator case. While in that case the defendant was charged with multiple offences, the starting point of 20 months was set for the driving charge only, and subsequently uplifted to reflect the other charges.23 The starting point was selected by reference to it being Mr Garlick’s 17th conviction for driving while disqualified, and his possession of the car, and presumably driving it, for two weeks.24 Nation J called that offending “complete and flagrant disregard of the disqualification imposed”.25 He further wrote:26
The essence of a driving while disqualified charge for which the Court must sentence an offender is the deliberate ignoring or flouting of a Court order imposing the disqualification. Where the offence has been committed for the seventeenth time, it must be within the most serious of cases for which the maximum penalty of two years' imprisonment can be imposed so that a penalty close to the maximum available has to be considered.
[35] While Mr Stacey’s offending was limited to one instance of driving and did not therefore amount to a “complete and flagrant disregard for the disqualification”, the fact that this was his 21st conviction means his offending is nevertheless of closely comparable seriousness to that of Garlick. In any event, Judge Cook imposed a
23 Garlick v Police [2016] NZHC 572 at [10].
24 At [8].
25 At [8].
26 At [7].
starting point less than in Garlick, recognising a difference in the relative level of the offending.
[36] I have also had regard to a number of other cases which, although more serious than Mr Stacey’s case due to the presence of other factors, indicate that a sentence close to the maximum period of two years’ imprisonment is warranted where the number of prior convictions for driving while disqualified is very high.27 I therefore consider that the starting point of 18 months was available to Judge Cook in this case.
[37] The appellant cites four cases where the discretion in s 94 was exercised,28 but none of these cases featured a defendant who had anywhere near as many convictions as Mr Stacey. I have had regard to the case of Tua v Police, where Woodhouse J allowed an appeal against a sentence of 14 months’ imprisonment on the defendant’s 18th conviction for driving while disqualified, and substituted a sentence of 350 hours’ community work.29 Woodhouse J commented on the need to fully address all aspects of the offending and the offender at sentencing, not just the bare number of previous convictions.30 The appeal was allowed predominantly on the basis that the defendant had taken concrete steps to turn his life around, having moved away from the community in which much of his offending had occurred. Further, 13 of his 17 convictions for driving while disqualified were historical, having been entered 15 or more years earlier. The defendant’s last conviction was in 2011, the case being heard in 2013. There was also a mitigating element to the offending in that a probation officer had wrongly advised the defendant that he had his driver’s licence back.
[38] By contrast to Tua v Police, Mr Stacey’s convictions are not all in the past; he has regularly offended over the past 20 years. He was released from prison in 2017, having been sentenced to one year’s imprisonment for driving while disqualified, and went on to commit the same offence in March 2018. His new employment has
27 See Toby v Police HC Auckland CRI-2005-404-175, 21 October 2005 (22 previous convictions for driving while disqualified, two-year starting point upheld on appeal); Hughes v Police HC Invercargill CRI-2003-425-17, 31 October 2003 (19 previous convictions for driving while disqualified, two-year starting point upheld on appeal).
28 Poona v Police [2018] NZHC 791; Pou v Police [2018] NZHC 787; Timbrell v Police [2018] NZHC 2397; and Evans v Police [2018] NZHC 2660.
29 Tua v Police [2013] NZHC 2994.
30 At [16]–[17].
therefore not acted as a protective factor against renewed offending. Further, his criminal history is relatively substantial even without the driving convictions. He has been imprisoned on a number of previous occasions, and has breached community- based sentences on other occasions. I therefore consider that I could not adopt the same approach as that taken in Tua v Police.
[39] A sentence of imprisonment is warranted to achieve consistency with other sentencing decisions and to meet the purposes of sentencing. It follows that the discretion under s 94 is unavailable, and Judge Cook did not err in refusing to exercise it. Having reviewed the case law, I also consider that the starting point of 18 months’ imprisonment adopted by Judge Cook was well within the acceptable range.
[40] It is to Mr Stacey’s credit that he has begun to take positive steps in his life. Although as a recidivist offender caught in a cycle of driving while disqualified he is the type of offender for which s 94 might otherwise be employed in order to break that cycle, unfortunately his own actions and long history of offending take him outside the realm where a community-based sentence is appropriate, and where s 94 can be applied.
Result
[41] I do not consider that the sentence imposed by Judge Cook was manifestly excessive, or that she was wrong to not exercise her discretion under s 94.
[42]I dismiss the appeal.
Paul Davison J
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