T v Police HC Auckland CRI-2009-404-322
[2009] NZHC 2201
•7 December 2009
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2009-404-322
T
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 7 December 2009
Appearances: Mr M J Kidd for Appellant
Mr N Whittington for Respondent
Judgment: 7 December 2009
(ORAL) JUDGMENT OF LANG J [on appeal against sentence]
Solicitors:
Crown Solicitor, Auckland
Counsel:Dr M J Kidd, Ranui, Auckland
T V NEW ZEALAND POLICE HC AK CRI-2009-404-322 7 December 2009
[1] Mr T pleaded guilty in the District Court to charges of driving whilst disqualified, failing to remain stopped for a law enforcement officer and failing to comply with a requirement to stop his vehicle when followed by an enforcement officer in a vehicle displaying red and blue flashing lights and sounding its siren. All of those charges arose out of an incident that occurred at Redvale on 18 July 2009.
[2] On 25 August 2009 His Honour Judge Everitt fined Mr T $750 on the charge of driving whilst disqualified. The Judge also disqualified him from holding or obtaining a motor driver’s licence for a period of six months commencing on
1 October 2009. The Judge convicted and discharged Mr T on the other two charges.
[3] Mr T now appeals to this Court against the order for disqualification that the Judge imposed. He contends that the Judge should not have made a further order disqualifying him from driving. He argues that the Judge should instead have sentenced him to a community-based sentence under s 94 of the Land Transport Act
1998.
The approach taken in the District Court
[4] During the hearing before me counsel for Mr T confirmed that his submissions to the Judge in the District Court were to the effect that the Judge should exercise his discretion under s 94 and not impose a period of disqualification. The Judge’s sentencing remarks make it clear, however, that he considered that a period of disqualification was appropriate because he did not accept that special reasons existed to justify not disqualifying Mr T from driving.
[5] Although the Judge referred to s 94, it is clear from his remarks that he determined this issue not on the basis of the provisions of s 94, but instead on the basis of s 81 of the Act. That section permits the Court not to disqualify a defendant if special reasons exist in relation to the offence rather than to the offender. I draw this conclusion from the following passages of the Judge’s sentencing remarks:
[2] Mr Kidd is counsel and has been instructed to advance an application under s 94, can the Court find special reasons not to disqualify the defendant for those circumstances relating to the offence and not the offender. There is a very brief affidavit sworn by Mr T and he has offered to do community work instead of further disqualification.
...
[10] This application does not meet the requirements of s 94. There are no special reasons relating to the offence. In fact, there are many aggravating features which make the offence worse.
[6] It therefore seems that the Judge was operating under a misapprehension when he delivered his sentencing remarks. He said that he was making a decision pursuant to s 94, when in fact his reasoning related to s 81. In those circumstances both counsel accepted that I should reconsider the issue afresh based on the criteria set out in s 94.
Section 94 Land Transport Act 1998
[7] Section 94 of the Act provides as follows:
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 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.
[8] In enacting s 94 it is clear that the Legislature accepted that in certain circumstances it will be appropriate for a repeat offender to be sentenced to a community-based sentence rather than a further period of disqualification. The rationale underlying s 94 is that offenders may become trapped in a wheel, or cycle, of offending that involves the accumulation of numerous orders for disqualification. These lead the offender to become frustrated and to take the view that there is no light at the end of the tunnel. This leads in turn to further offending and yet further increases in the period of disqualification.
[9] Parliament recognises that this type of situation is peculiar to offenders who persistently drive whilst disqualified. Section 94 represents Parliament’s endeavour to provide an alternative form of sentence so that the cycle of offending can be broken.
[10] Mr T is not, however, a recidivist offender by any means. He has only been convicted of driving whilst two disqualified on two occasions and driving whilst his licence was suspended on one occasion. All of his offending, putting to one side the present charges, occurred between 15 December 2007 and 7 October
2008. For that reason Mr T falls outside the ambit of offenders that Parliament
was primarily considering when it enacted s 94. That is not to say, however, that s 94 cannot be applied in his situation. As Asher J recognised in Yu v Police HC AK CRI 2006-404-273 10 November 2006, the section may still be applied in situations where an offender has not been convicted of many offences of driving whilst disqualified. The benefits of the section are therefore not restricted to repeat offenders.
[11] Before a court can impose a community-based sentence under s 94, it must have regard to the four criteria set out in s94(1). There is no dispute in the present case that Mr T has previously been disqualified from driving, so the requirements of s 94(1)(a) are met. The real issue is whether the Court can reach the conclusion that, having regard to the criteria set out in s 94(1)(b), it would be inappropriate to order that he be disqualified from holding or obtaining a driver’s licence. If this issue is decided in favour of Mr T it will be necessary to determine whether, in terms of s 94(1)(b), it would be appropriate to sentence him to a community-based sentence instead.
[12] As will become apparent, the four matters listed in s 94(1)(b) overlap to a considerable degree. Notwithstanding that fact, I propose to have regard to each of the criteria in turn.
The circumstances of the case and the offender
[13] The offending for which Mr T appeared for sentence on 25 August 2009 had some unusual features.
[14] As at 18 July 2009 Mr T was subject to an order of disqualification imposed upon him in the Auckland District Court on 31 March 2009. Pursuant to that order he was disqualified from driving for a period of six months from 1 April
2009. That order was imposed following his conviction on a charge of driving whilst disqualified on 7 October 2008.
[15] At about 7.55 am on 18 July 2009 Mr T was found to be the driver of a
Honda motor vehicle travelling north on SH1 near Redvale. A police patrol stopped
his vehicle, and he was invited to sit in the rear of the police vehicle whilst the police carried out routine checks on Mr T and his vehicle. These revealed that Mr T was disqualified from driving. When the police asked him about this, he said that he thought that his period of disqualification had ended because his driver’s licence had been returned to him. Mr T then asked if he could retrieve something from his vehicle, and the officers permitted him to approach his vehicle and get into it. Mr T then drove away at speed, pursued by the police vehicle with its lights flashing and siren operating.
[16] Mr T did not stop notwithstanding the fact that the police car was in pursuit, and eventually the police vehicle was forced to abandon the pursuit. A short time later Mr T was seen to turn into the driveway of a house in Red Beach. When the police approached the driveway Mr T endeavoured to reverse his vehicle out of the driveway, no doubt to make another bid for freedom. This time, however, he was apprehended and arrested. When the police asked him for an explanation for his conduct, he told them that he was frustrated because he did not want to lose his vehicle.
[17] This series of events obviously raises some important issues. First, there is the fact that Mr T was prepared to drive on 18 July after having been disqualified approximately four months earlier. That fact becomes all the more stark when one takes into account the fact that he had earlier been convicted on 30 April
2008 of driving on 4 January 2008 whilst his licence was suspended or revoked.
[18] There is also the fact that Mr T used subterfuge to gain access to his vehicle. He was then prepared to drive off and to endeavour to evade the pursuing police car at speed. This represented a determined attempt on his part to avoid capture.
[19] By way of explanation at sentencing, Mr T maintained in an affidavit that at approximately 6 am on 18 July 2009 he had received a telephone call from a shopkeeper for whom he provides assistance on occasions. He said that this person had asked him to come over to his shop as a matter of urgency to help him out. Mr T did not know what the nature of the urgency or emergency was, but said that
he was on his way to provide assistance to this person when the police had stopped him. His affidavit exhibited a statement from this person to the Judge at sentencing. This confirmed that he had asked Mr T to come to help him at 6 am on Saturday
18 July 2009 and that he had told Mr T that it was very urgent. He said that Mr T ended up coming two hours late, which in turn made him late for an appointment that he had with his business agent in Tauranga.
[20] Mr T ’s circumstances are that he lives at home with his father, who has issues with his health. His father needs to be taken to a doctor and he cannot go there by bus. Mr T ’s sister only has a learner’s licence and is unable to drive her father to the doctor. Mr T cannot accompany her in the car, because he does not have a current licence.
[21] Mr T is currently a university student. He has had employment n the past and wishes to avail himself over the next few months of an offer of employment that he has received from a magazine shop. He has produced to the Court a letter from the proprietor of the shop confirming that a full time position is now available. In order to take up the position Mr T will need to have a driver’s licence, because his employment would involve delivery of magazines between different stores. This prospective employer has kept a position open to Mr T in anticipation that his appeal today will be successful.
[22] The tenor of all of these matters is that Mr T needs to have his licence in order to be able to take up the offer of employment and to provide assistance to his sick father.
The effectiveness or otherwise of a previous order of disqualification
[23] This is always a difficult matter when an offender is not a repeat or recidivist offender. Plainly the orders for disqualification that have been imposed in the past have had little effect on Mr T , because he has now been caught driving whilst disqualified on three separate occasions. It seems that he is not prepared to take an order for disqualification at face value. When other matters require him to drive he is prepared to do so.
The likely effect on the offender of a further order of disqualification
[24] This factor overlaps with Mr T ’s circumstances. If a further order for disqualification is made, Mr T will not be able to take up the offer of employment and he will also be prevented from providing assistance to his father.
The interests of the public
[25] The interests of the public can encompass a wide variety of matters. They include the public interest in ensuring that persons who are disqualified from driving obey those orders. It would be unfair to compliant offenders if non-compliant offenders were to be seen to receive some kind of advantage as a result of their conduct. There is also the public interest in keeping offenders off the road in circumstances where they may have presented a danger to the public by virtue of their past conduct.
[26] I accept also, however, that the public interest supports persons in Mr T ’s position in their endeavours to find paid employment to support themselves and their family. There is also public interest in ensuring that sick or needy persons are provided with medical attention in a convenient way.
Conclusion
[27] The decision as to whether or not it would be inappropriate to order that Mr T be further disqualified from driving falls to be considered having regard to the matters to which I have just referred. I take the most significant of these to be the circumstances of the case.
[28] Mr T was involved in an incident on 18 July 2009 that could easily have had very serious consequences. He deliberately flouted the instructions of a police officer by driving away from the scene. He then put the pursuing officers and other motorists at some risk by refusing to stop when he was pursued by the police
vehicle. These matters take this particular offending out of the ordinary. I consider, in fact, that they are really determinative of the present appeal.
[29] I acknowledge that continued disqualification will undoubtedly produce hardship for Mr T . That will inevitably be the case when offenders are sentenced to a period of disqualification for a period of six months. It will intrude and impinge upon their daily lives and will lead to stresses and strains within the family environment. It may also have significant consequences so far as employment is concerned particularly where, as here, the offender will be unable to obtain a limited licence by virtue of previous convictions.
[30] The incident on 18 July 2009 demonstrates, however, that Mr T is a person who is not prepared to abide by the terms of orders that the Court has imposed. His actions in endeavouring to evade the police also show that he is not prepared to obey lawful directions. Those particular aspects of his offending operate, in my view, to render it appropriate to disqualify him from driving for a further period. They also render it inappropriate to impose a community-based sentence in the present case. I have therefore concluded that, even applying the criteria under s 94(1), the sentence that the Judge ultimately imposed was appropriate in the circumstances of the case.
Result
[31] The appeal is dismissed.
Lang J
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