Steel v Police

[2020] NZHC 3028

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2020-412-000032

[2020] NZHC 3028

BETWEEN

RICHARD JOHN STEEL

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

16 November 2020

Appearances:

A C M Bligh for Appellant

C J Bernhardt for Respondent

Judgment:

17 November 2020

JUDGMENT OF GENDALL J

This judgment was delivered by me on 17 November 2020 at 11:30 a.m. pursuant to Rule

11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

STEEL v NEW ZEALAND POLICE [2020] NZHC 3028 [17 November 2020]

Introduction

[1]    The appellant, Mr Steel, pleaded guilty to a charge of dangerous driving causing injury. He was sentenced on 14 July 2020  by  Judge  Crosbie  in  the  District Court to 16 months’ imprisonment with six months’ special post release conditions. He was disqualified from driving for two years.1 Mr Steel appeals his sentence but only on the grounds the length of the driving disqualification was manifestly excessive.

Facts

[2]    On 13 August 2019 at around 7.20am Mr Steel began driving dangerously in Dunedin. He crossed the centre line on Victoria Road and drove on the incorrect side of the road. Mr Steel approached and entered a roundabout in the oncoming lane and went around it anticlockwise. He turned right on to Prince Albert Road and continued on the wrong side of the road. Mr Steel overtook and cut in front of another vehicle at speed, returned to the correct side of the road and stopped at a red light.

[3]    Mr Steel then entered the intersection while the traffic signal was red, turned on to the wrong side of the road and entered another intersection against the red traffic signal. He crashed into the victim who was travelling north on a green traffic signal. The victim suffered whiplash, bruising to her elbow, pain in her neck, and a pneumomediastinum.2 Mr Steel told police he was not sure what colour the traffic signals were when he entered the intersection, that he had come from the beach, and had not slept the night before.

District Court decision

[4]    Judge Crosbie provided a sentence indication for Mr Steel which was accepted. In his final sentencing, Judge Crosbie noted the inference was that this highly unusual and dangerous driving was influenced at the time by possible mental

1      R v Steel [2020] NZDC 13671.

2      An abnormal presence of air in the centre of the chest due to trauma.

health challenges.3 Counsel agreed the starting point adopted of just over two years’ imprisonment was appropriate.

[5]    The Judge considered the sentence was one enabling home detention to be properly considered but on this he felt he must have regard to the various additional reports before him. He found this sentencing exercise difficult. The probation report noted there had been some previous compliance with sentencing but there had also been late reporting, moving without consent, refusal to allow probation to complete home visits, and what was said to be the appearance of paranoia from Mr Steel. The probation report writer did not believe Mr Steel could be assessed as suitable for an electronically monitored sentence. This was said to be due to his hostility and aggression, the unpredictable nature of his mental illness, concerns for the safety of staff required to visit his address, and his levels of paranoia around technology.

[6]    For all these reasons Judge Crosbie reluctantly felt a rehabilitative based sentence was not open to the Court. In all the circumstances he reduced the sentence from one of 22 months’ imprisonment to one of 16 months’ imprisonment. Special post-release conditions were added requiring Mr Steel to undertake such treatment, counselling programme or intervention as may be directed. The Judge ordered reparation of $7,500 and disqualified Mr Steel from driving for two years, taking into account the time spent in prison.

Principles on appeal

[7]    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.4 As the Court of Appeal mentioned in Tutakangahau v R quoting the lower court’s decision, “…[an appellate] court ‘will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles’”.5

3      Although any mental health challenges Mr Steel faced were not such that a statutory defence was available. A s 38 report under s 38 Criminal Procedure (Mentally Impaired Persons) Act 2003 was not recommended.

4      Criminal Procedure Act 2011, ss 250(2) and 250(3).

5      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

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.6 The focus of an appellate court must “primarily be on the appropriateness of the end sentence, not the means by which that end sentence has been reached”.7

Submissions

Appellant’s submissions

[8]    Ms Bligh, for Mr Steel, submits the licence disqualification period of two years was manifestly excessive. The Judge did not refer to the length of disqualification in his sentence indication nor did counsel for Mr Steel refer to the disqualification period in their submissions.

[9]    Ms Bligh submits the Judge’s failure to account for the nine and-a-half-month period Mr Steel spent unable to drive while he was on bail has resulted in a sentencing error.8 Mr Steel will serve eight months and then will be disqualified from driving for a further 16 months. In effect Mr Steel will be unable to drive for 32.5 months which is close to triple the mandatory minimum period of disqualification.

[10]   Before me, Ms Bligh accepted the tension between the need to keep dangerous drivers off the road and the need to provide hope for offenders.9 Ms Bligh also accepted the High Court has endorsed an extension of disqualification if necessary to ensure an offender is penalised appropriately.10 However, Ms Bligh submits this approach could be seen as double punishment, as the offender is unable to drive whilst in custody.

6      Ripia v R [2011] NZCA 101 at [15].

7      Skipper v R [2011] NZCA 250 at [28].

8      The period Mr Steel was disqualified from driving while on bail, as I understand it, was eight and a half months (from 29 October 2019 to 14 July 2020).

9      Hitchens v R CA 380/03, 25 March 2004 at [10].

10     Lester v Police [2020] NZHC 1794 citing Work v Police HC Dunedin CRI-2008-412-11, 5 June 2008 at [13].

[11]   In particular, before me Ms Bligh relied on High Court decisions in Chaaya v Police11 and R v Paul.12 In Chaaya v Police Mr Chaaya’s disqualification period was adjusted by Gault J from two years to one year to give credit for the year Mr Chaaya was prohibited from driving while on bail. Ms Bligh submits the offending in Chaaya was more serious than Mr Steel’s offending here. Mr Chaaya faced six dangerous driving charges and six school aged children were injured.

[12]   Ms Bligh also suggests the dangerous driving in R v Paul was more serious than Mr Steel’s driving here. In that case, Ms Paul, as a passenger, grabbed the steering wheel and forced the car into the opposite lane and oncoming traffic. There, Ms Paul was disqualified from driving for only 12 months. For all these reasons Ms Bligh submits that Mr Steel’s disqualification period, although necessarily more than the mandatory minimum, should not have been a two-year disqualification which was manifestly excessive, considering the time spent on bail.

Respondent’s submissions

[13]   Mr Bernhardt for the Crown submits that while Judge Crosbie did not explain in his decision how he came to the two year disqualification period, the Crown had made submissions in the District Court on this. The Crown there had cited decisions of Hitchens v Police and Mathias v Police relating to the principles of disqualification. Mr Bernhardt submits the comments of Dunningham J in this Court in Mathias are relevant here:13

[t]he purposes and principles of sentencing apply to any form of “dealing with an offender”, they must apply to the exercise of the discretion under section

124. That section provides that the Court may make an order under that section, in addition, to, or instead of, passing any other sentence of making any other order

This makes it clear that an order under this section may, in some cases, meet the purposes and principles of the Sentencing Act without the need for any other sentence.

An order under section 124 has both…punitive and protective purposes. The loss of licence is a way of making the offender accountable and denouncing his or her behaviour and of deterring the offender and others from similar

11     Chaaya v Police [2019] NZHC 3250.

12     R v Paul [2018] NZHC 2783.

13     Mathias v Police [2016] NZHC 959 at [38].

offending. Equally, though, it can provide a means of protecting the community from the offender.

[14]   Mr Bernhardt suggests the purpose and policy underlying disqualification from driving in the circumstances of this case mean a disqualification period approaching two years is appropriate. He submits comparing other cases is of limited help. What must occur is an assessment of culpability and the risk posed by Mr Steel. In this case the consequences of Mr Steel’s offending on other road users is one facet to be considered but should not predominate14 because whether others were injured is a matter of luck or misfortune rather than good management by the offender. Lengthy periods have been imposed even when no one was injured.15

[15]   Based on these considerations Mr Bernhardt submits Mr Steel’s offending was serious, involving a deliberate course of very bad driving. Mr Steel has habitually driven below the acceptable standard. Mr Bernhardt notes Mr Steel also has demerit and license suspension history for excessive speed and failing to stop at a stop sign. Here, there has also been significant harm caused by the offending. The victim suffered injury and emotional trauma, Mr Steel’s employer suffered financial loss and the PAC report before the Court was particularly negative.

[16]   Mr Bernhardt suggests the decisions in Chaaya and Paul can be distinguished on their facts. In Chaaya the Judge reduced the disqualification period noting the time Mr Chaaya had spent on bail without driving and that a lengthy disqualification would affect Mr Chaaya’s re-integration into society. Mr Chaaya had no prior criminal history. He had genuine rehabilitative prospects, was young (22) and had a tertiary qualification. In Paul, Edwards J in this Court settled on a one-year disqualification because, while she accepted there was a link between the offending and road safety, the link was weaker than in cases where drivers drive dangerously directly and for long periods.

[17]   Mr Steel’s lack of insight apparent here and his resistance to treatment is also relevant in this case, Mr Bernhardt says, to the length of disqualification imposed. The culpability and dangerousness of his driving coupled with this lack of insight and

14 Gacitua v R [2013] NZCA 234.

15 Tohu v Police [2015] NZHC 2009.

treatment resistance meant that an effective disqualification of what was 16 months was necessary to keep a dangerous driver off the road as long as reasonably possible.16

Analysis

[18]   Mr Steel takes no issue with the period of imprisonment imposed here. His appeal is focussed solely on what is the appropriate period of licence disqualification.

[19]   Section 36(2) of the Land Transport Act 1998 provides where there is a breach of ss 7 or 22 involving injury the court must order the person to be disqualified from driving for one year or more. Both counsel before me acknowledged the disqualification recognises the real need to protect the public, but long periods of disqualification can leave little hope for offenders.17 This Court is required to strike a balance between these two concerns. It has been said too that “the appropriate balancing of these principles depends on the circumstances of the particular case”.18 As disqualification is primarily to protect the public, the seriousness of the offending itself must be a key consideration.19

[20]In Leaupepe v Police McKenzie J noted in relation to s 36(2)(b):20

[8]        The principle objective of disqualification is public safety. Many of the purposes and principles of sentencing in s 7 and 8 of the Sentencing Act 2002 can have little application when assessing the length of disqualification and others must receive limited weight because of sentencing concerns.

[9]        The extent of discretion available to the sentencing Judge is, for these reasons less fettered than in respect of conventional sentencing. A comparison with other cases is therefore a less reliable guide than is the case for conventional sentencing.

[21]   I consider Mr Steel’s driving was highly dangerous. At the time, plainly there were likely to be commuters and others on the road. Mr Steel’s actions were not the product of a short moment of inattentiveness or poor judgement. Mr Steel engaged in a sustained period of very dangerous and reckless driving.

16 Tai v R [2010] NZCA 522 citing Hitchens v R CA 380/03, 25 March 2004 at [10].

17 Hitchens v R, above n 9, at [10].
18  Tohu v Police, above n 15, at [27].

19  Tai v R, above n 16, at [6] and [7].

20 Leaupepe v Police [2015] NZHC 1766.

[22]   In my view, Mr Steel’s case is  generally similar to Chaaya v Police.  Like  Mr Chaaya, Mr Steel was not involved in evading police as was the case in Lester and Tohu. Both Mr Steel and Mr Chaaya were involved in poor driving in urban areas, during the early morning when there were likely to be other road users. Mr Chaaya, however, caused greater injury to more young vulnerable people. This warranted an increase in the length of disqualification. However, Mr Steel’s history of driving convictions from 2010, 2007, 1996 and 1993, although somewhat dated, does suggest he poses a risk of further offending. For these reasons I consider that as a starting point a period of disqualification of two years was appropriate to recognise the dangerous nature of his driving and to protect the public.

[23]   And, I accept the Crown’s submissions that the very different factual situation prevailing in R v Paul does not provide a strong comparator for the present offending.

[24]   Turning to submissions advanced by Ms Bligh for Mr Steel, I accept that an allowance should have been made by Judge Crosbie for the period spent on bail where Mr Steel was prohibited from driving. Mr Steel abided by his condition not to drive during this period for some eight and a half months. In Chaaya Judge Gault stated relevantly “Mr Chaaya spent nearly a year on bail prohibited from driving. This was a significant period of time, particularly considering the ultimate period of disqualification imposed. I consider this warranted a recognition in his period of disqualification.”21

[25]   However, I also accept Mr Bernhardt’s submission that in Chaaya Judge Gault considered a lengthy disqualification would affect Mr Chaaya’s re-integration into society. Mr Chaaya also had no prior criminal history, he had genuine rehabilitative prospects, was young (22) and had a tertiary qualification. Mr Steel does have a criminal history relevant to his driving offences. And, his mental health and distrust of authority prevented the District Court Judge from imposing a rehabilitative sentence. His lack of rehabilitative options may indicate too that he poses a greater risk and therefore a longer period of disqualification is warranted here. I therefore do not consider that in all the circumstances here, a period of disqualification would be

21 Chaaya v Police, above n 11, at [38].

adequate if the disqualification was reduced by the full eight-and-a-half-month period spent on bail.

[26]   I conclude the same approach taken to the credit given for time spent on restrictive electronically monitored bail (EM bail) would be appropriate in this case. A modest discount of five months is appropriate to recognise the time Mr Steel has spent on bail with a condition not to drive.

Conclusion

[27]   This appeal is allowed. Mr Steel’s period of disqualification from driving is reduced from two years to a period of one year and seven months.

...................................................

Gendall J

Solicitors:

Bligh Law, Solicitors, Dunedin Crown Solicitor, RPB Law, Dunedin