Stewart v Police
[2017] NZHC 2775
•13 November 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2017-404-282 [2017] NZHC 2775
BETWEEN CORDELIA STEWART
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 31 October 2017 Counsel:
C C Watkins for Appellant
D S Houghton for RespondentJudgment:
13 November 2017
JUDGMENT OF BREWER J
This judgment was delivered by me on 13 November 2017 at 12:30 pm pursuant to Rule 11.5 High Court Rules.
Registrar/Deputy Registrar
Solicitors/Counsel:
Clare Watkins (Auckland) for Appellant
Meredith Connell (Auckland) for Respondent
STEWART v POLICE [2017] NZHC 2775 [13 November 2017]
Introduction
[1] On 21 July 2017, Judge EM Thomas sentenced Ms Stewart on the following charges:1
• Possession of methamphetamine utensils;2
• Driving while impaired;3
• Operating a vehicle carelessly (three charges);4
• Dangerous driving;5 and
• Driving while suspended.6
[2] The sentence imposed by the Judge was 12 months’ supervision.7 He also disqualified Ms Stewart from holding or obtaining a drivers licence for two years.8
[3] Ms Stewart appeals the two years’ disqualification period. It is, she submits, manifestly excessive.
Background
[4] Ms Stewart has had considerable problems with methamphetamine. There was a spate of offending in 2010 because of her addiction to the drug. It was in that year that Ms Stewart incurred her single previous disqualification from driving. She was given the mandatory minimum period of disqualification of six months on a charge of
driving while impaired.9
1 Police v Stewart [2017] NZDC 23392.
2 Misuse of Drugs Act 1975, s 13(1)(a).
3 Land Transport Act 1998, s 57A(1).
4 Land Transport Act, s 37(1).
5 Land Transport Act, s 35(1)(b).
6 Land Transport Act, s 32(1)(c).
7 At [23].
8 At [24].
9 Land Transport Act, s 57A(2)(b).
[5] In 2015, methamphetamine again brought Ms Stewart to the attention of the
Police. On 13 October 2015, she was found to possess methamphetamine utensils.
[6] On 16 October 2015, Ms Stewart drove while impaired because of methamphetamine. Ms Stewart drove on Tamaki Drive erratically, continually crossing the centre line and then returning over to the left bus lane, narrowly missing other vehicles.
[7] On 24 January 2016, Ms Stewart drove her motor vehicle dangerously. She drove in Wellsford on the wrong side of the road, causing oncoming drivers to take evasive action in order to avoid head-on collisions.
[8] On 15 March 2016, Ms Stewart drove again, this time on State Highway 16 at
Pt Chevalier. Ms Stewart passed through a series of road works and hit the centre concrete barrier. Ms Stewart did not stop but continued driving erratically, nearly hitting other drivers. Ms Stewart was fortunate to be charged only with operating a vehicle carelessly.
[9] On 6 June 2016, Ms Stewart was driving on Tamaki Drive when she veered to the wrong side of the road and applied her brakes heavily before mounting the footpath and colliding with a pedestrian-crossing pole. Ms Stewart was again fortunate to be charged only with operating a vehicle carelessly.
[10] On 24 July 2016, Ms Stewart was suspended for excess demerit points. Nevertheless, she continued driving. On 28 July 2016, Ms Stewart failed to stop at a red traffic light and crashed into the stopped car in front of her. The force of the collision propelled the stopped car into the one in front of it. Both vehicles were written off. As a result of this incident, Ms Stewart was again charged with operating a vehicle carelessly. She was also charged with driving while her licence was suspended.
[11] The offending described in [7] to [10] occurred while Ms Stewart was on bail.
Approach on appeal
[12] Section 250(2) of the Criminal Procedure Act 2011 provides that the Court must allow an appeal against sentence if it is satisfied that:
(a) for any reason, there is an error in the sentence imposed on conviction;
and
(b) a different sentence should be imposed.
[13] In any other case, the Court must dismiss the appeal.10 A sentence may be set aside where it is manifestly excessive.11 The Court will then go on to form its own view of the appropriate sentence.12
The appeal
[14] Ms Watkins made careful submissions on behalf of Ms Stewart. Her principal point is that the period of two years’ disqualification (which the Judge fixed formally on the dangerous driving and driving while impaired charges) is manifestly excessive. However, it is fair to say that Ms Watkins’s submissions had little to bite on because:
•Judge Thomas did not give any reasons for his choice of a disqualification period of two years; and
•He did not impose a disqualification period for the charge of driving while suspended even though the Land Transport Act 1998 makes it mandatory on this charge for the Court to enter a disqualification for six months or more. Further, the three charges of operating a vehicle carelessly could also have attracted periods of disqualification; and
•There is no higher Court authority discussing the principles behind setting a period of disqualification from driving.
10 Section 250(3).
11 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [33].
12 Tutakangahau v R, above n 11, at [30].
[15] Ms Watkins, accordingly, took what assistance she can from the facts and, by analogy, from cases dealing with disqualifications for drink driving.
[16] First, Ms Watkins made the point that Ms Stewart’s previous record of driving offences is reasonably modest. As I have said, her sole previous disqualification from driving relates to driving while impaired in 2010. There are also two convictions for careless use dating from 2007 and 2010 for which no period of disqualification was ordered.
[17] Ms Watkins submits that the Judge could not properly have regarded
Ms Stewart’s previous history of driving offences as mandating an increase in what would otherwise be an appropriate disqualification period for the current offending.
[18] Ms Watkins referred me to a decision of this Court in Tohu v Police, where the
Court said:13
[27] … the primary purpose of disqualification is to protect the public, while reflecting the seriousness of the offending. The court must strike a balance between two competing principles … The appropriate balancing of these principles depends upon the circumstances of the particular case.
(Citations omitted)
[19] In Duncan v Police, a Judge of this Court said:14
[10] … As a matter of policy disqualification orders should be kept as short as is possible in relation to achievement of the underlying end of road safety
…
[20] Ms Watkins’s submission is that the recognised progress by Ms Stewart to remain free of methamphetamine significantly reduces concerns about her future driving from a public safety perspective. The seriousness of her driving, in
Ms Watkins’s submission, relates to inattention rather than to any intentional bad
driving.
13 Tohu v Police [2015] NZHC 2009.
14 Duncan v Police HC Christchurch CRI 34/03, 17 July 2003.
[21] Ms Watkins also referred to the statutory minimum period of disqualification for charges of driving with excess breath alcohol, third or subsequent occasion.15 For that sort of very serious offending, the statutory minimum period is one year and one day. I note also that a person disqualified from driving for more than one year must re-apply for a licence under the Land Transport Act.16
Discussion
[22] Judge Thomas imposed the two years’ disqualification for the dangerous driving and driving while impaired charges.17 For these charges, the Judge was required to at least impose a period of disqualification of six months.18
[23] As mentioned earlier, although he was required to do so, the Judge did not impose a period of disqualification for the driving while suspended charge.19 He also had a discretion to impose a period of disqualification for the three charges of operating a vehicle carelessly.20
[24] Ms Watkins accepts that more than the mandatory minimum period of six months should be imposed. But she submits that where a defendant faces more than one offence under the Land Transport Act, it is usual to increase one of the disqualification periods to reflect this and make any other disqualification period concurrent.
[25] I agree with the remarks of French J in Schruba v Police:21
[13] … the correct position … is that while there is jurisdiction to impose cumulative periods of disqualification, the better and more principled approach is to make them concurrent, with the period of disqualification for the second offence being longer to reflect the aggravating features …
[26] I accept Ms Watkins’s submission that I can draw some assistance from cases involving driving with excess breath alcohol, third or subsequent occasion. The
15 Land Transport Act, s 56(4)(b).
16 Section 83(1).
17 At [24].
18 Sections 35(2)(b) and 57A(2)(b).
19 Section 32(3)(b).
20 Section 37(2)(b).
21 Schruba v Police HC Dunedin CRI-2008-412-30, 25 September 2008.
maximum penalty is similar to that for charges in this case, and the underlying purpose of enhancing road safety is the same.
[27] The Court of Appeal in R v Stone considered a period of disqualification where the defendant pleaded guilty to an eighth offence of driving with excess breath alcohol.22
[28] The Court created a graph based on existing case law to illustrate the correlation between the number of excess breath alcohol convictions and the length of disqualification.23 It found that the three-year disqualification period in that case was not manifestly excessive given the defendant’s number of convictions.24 In Watson v Police, Ellis J reduced the defendant’s period of disqualification to two years from four years for his fifth charge of driving with excess breath alcohol.25 The Judge noted this was consistent with the range indicated by the Court of Appeal in Stone, as well as with the defendant’s culpability and the degree of risk he posed.26 The graph further “shows that the 12–24 month range is the average for those with four previous convictions”.27
[29] I have looked also at cases involving methamphetamine and driving. I note the decision of Nguyen v Police.28 That case involved a defendant who faced charges of refusing to accompany an enforcement officer, refusing to permit a blood specimen to be taken (third or subsequent offence), dangerous driving, driving while suspended, threatening to kill and trespass. Justice Asher imposed a disqualification period of 18 months in those circumstances.29
[30] In Kereopa v Police, the defendant had been sentenced on several charges relating to methamphetamine.30 One of those charges was refusing to permit a blood
22 R v Stone [2009] NZCA 539.
23 At [15].
24 At [25].
25 Watson v Police HC Hamilton CRI-2010-419-30, 4 May 2010 at [18]. See also Tindle v Police
[2016] NZHC 2093; McNab v Police [2014] NZHC 1493.
26 At [18].
27 Watson v Police, above n 25, at [16].
28 Nguyen v Police HC Auckland CRI-2006-404-370, 21 November 2006.
29 At [36].
30 Kereopa v Police HC Whangarei CRI-2011-488-41, 6 September 2011.
specimen to be taken, after being stopped for driving erratically. I reduced a disqualification period from 18 months to eight months, noting:
[16] … The circumstances of the appellant's offending did not require a period of disqualification three times that of the statutory minimum and 50% higher than the minimum required for a third or subsequent offence …
[31] Having regard to these cases, I consider that Ms Stewart’s period of disqualification of two years is manifestly excessive. The number of charges, their nature, and her history, do require an uplift of the six months statutory minimum. The question is how far.
[32] Ms Stewart has taken responsibility for her actions. She has addressed her drug addiction through completion of a course at Higher Ground, a drug rehabilitation centre. She has also completed a defensive driving course.
[33] I regard it as significant that there has been no further offending between the end of Ms Stewart’s suspension from driving on 24 October 2016 and her sentencing on 21 July 2017.
[34] There is a strong need to safeguard the public from a person whose methamphetamine addiction results in her getting behind the wheel of a car and driving erratically. But, given Ms Stewart’s efforts to address her addiction, and consistent with the above case law, I am satisfied a period of disqualification of 18 months would adequately protect the public. Put another way, a further six months’ disqualification would not add materially to the protection and a balance must be struck with the seriousness of the offending.
Decision
[35] The appeal is allowed. The period of disqualification of two years is quashed. I substitute the following periods of disqualification, all to be concurrent with each other:
(a) On the charge of driving while impaired – 18 months’ disqualification.
(b) On the charge of dangerous driving – six months’ disqualification.
(c) On the charge of driving while suspended – six months’
disqualification.
Brewer J
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