T v Police HC Tauranga CRI-2010-470-15
[2010] NZHC 708
•13 May 2010
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
CRI-2010-470-15
T
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 13 May 2010
(Heard at ROTORUA)
Appearances: Mr T Clee for Appellant
Ms H Booth for Respondent
Judgment: 13 May 2010
(ORAL) JUDGMENT OF LANG J [on appeal against sentence]
Solicitors:
Crown Solicitor, Tauranga
Counsel:Mr T Clee, Auckland
T V NEW ZEALAND POLICE HC TAU CRI-2010-470-15 13 May 2010
[1] Mr T pleaded guilty in the District Court to two charges of driving whilst disqualified. On 29 March 2010, His Honour Judge Bidois sentenced Mr T to 80 hours community work on the first charge and 120 community work on the second. He disqualified him from driving for six months on the first charge and for eight months on the second charge.
[2] Mr T appeals against the periods of disqualification that the Judge imposed upon him. He contends that the Judge ought to have exercised his discretion to impose a sentence of community work upon him rather than further periods of disqualification.
The approach to be taken on appeal
[3] An appeal against refusal to make an order under s 94 is an appeal against an exercise of a statutory judicial discretion. As a result, both counsel agree that this Court must proceed in accordance with the comments in May v May (1982) 1
NZFLR 165. As a result, the decision in the present case will be only amenable to review in the event that the sentencing Judge is found to have exercised his discretion according to a wrong principle, if he has taken into account an irrelevant factor, if he has failed to take into account a relevant factor or if the decision is plainly wrong.
[4] Both counsel identified one area in which it would appear, reading the Judge’s decision literally, that he made an error. During the course of his sentencing remarks the Judge had this to say at [22]:
… A limited licence application would be a more appropriate avenue to relieve him of the consequences of his offending, as opposed to a blanket penalty in lieu of disqualification. If he is ineligible and I have not turned my mind to that, then that would reinforce my view on this s 94 application because he would be statute barred.
[5] In referring to s 94 the Judge was referring to s 94 of the Land Transport Act
1998, which 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.
…
[6] As both counsel recognised, Mr T is precluded from obtaining a limited licence because of his previous convictions. That does not mean, however, that he cannot advance an application under s 94 of the Land Transport Act 1995, because s 94 applies to persons who are precluded from obtaining a limited licence by virtue of the fact that they have been convicted of driving whilst disqualified.
[7] It may be a matter of semantics, because the Judge is an extremely experienced Judge with wide experience in this jurisdiction. Nevertheless, both counsel agreed that his reference to the fact that the s 94 application was statute barred by virtue of Mr T ’ ineligibility to obtain a limited licence must be construed as an error. So that there can be no suggestion that Mr T is disadvantaged in any way by this aspect of the Judge’s decision, both counsel agreed that it would be appropriate for me to consider the matter afresh based on the
submissions and evidence before the District Court, together with evidence that Mr
T has adduced on appeal.
The facts
[8] It is appropriate, first, to have regard to the facts of the offending. The series of events that led to the convictions began on 21 August 2009, when Mr T was convicted and sentenced in the Tauranga District Court on a charge of driving with excess blood alcohol. At that time he was disqualified from driving a motor vehicle for six months. This period of disqualification was to last through until 21
February 2010.
[9] In the early evening of Saturday 7 November 2009, Mr T was randomly stopped by a police officer whilst he was driving in Mt. Maunganui. The officer discovered that he was a disqualified driver, and the first charge of driving whilst disqualified was laid as a result. Mr T frankly admits that he was flouting the order for disqualification on this occasion. He said that he had gone out to the supermarket in order to get some food for his son.
[10] The second charge arose as a result of an incident just 11 days later, on
18 November 2009. On that occasion the police telephoned Mr T to advise him that his business premises had been the subject of a theft. They asked him to come to his premises in order to identify property that may have been stolen. He then drove to his business premises to assist the police. The details that he gave to the police on this occasion appear to have led to them becoming aware that he was a disqualified driver. The second charge of driving followed as a result.
[11] Mr T again accepts that he had driven on this occasion in breach of the order for disqualification. He said that he did not want to put the police to the trouble of having to collect him and drive him to his business premises. He can offer no excuse, however, for not investigating other means of transport to his business premises. It would have been a relatively simple matter, in my view, for him to have taken a taxi or to have asked somebody else to drive him to the premises. As a last
resort, he could have pointed out to the police the fact that he was a disqualified driver and he could have requested that they pick him up from his home address.
[12] On each occasion, however, I accept that it is likely that the journey that Mr T undertook was of relatively limited duration. The first occasion involved him driving from his home to a supermarket, whilst the second occasion involved him driving from one side of Stratford to the other.
[13] I accept also that no aggravating features arise out of his driving conduct on these occasions. There is no suggestion, for example, that he had been consuming alcohol or that his driving was careless or involved damage to third parties.
The jurisdiction to impose an alternative sentence under s 94
[14] In order to qualify for an alternative sentence under s 94, it is necessary for four elements to be present. They are:
a) That the offender has previously been disqualified.
b)It is inappropriate to disqualify the offender having regard to the matters listed in 94(1)(b).
c) It is appropriate to sentence the offender to a community based sentence; and
d)The offender is not prohibited from applying for a limited licence under s 103(2)(a), (b) or (d).
[15] In the present case there was no dispute that Mr T had earlier been the subject of a period of disqualification. It is also common ground that he is not prohibited for applying for a limited licence under s 103(2)(a), (b) or (d).
[16] The real issue to be determined is whether it would be inappropriate to impose the otherwise mandatory period of disqualification having regard to the
matters listed in s 94(1)(b) and whether it is instead appropriate to sentence him to a community-based sentence.
The factors to be taken into account under s 94(1)(b)
[17] I deal, first, with the factors to be taken into account under s 94(1)(b).
1. The circumstances of the case and of the offender
[18] There are undoubtedly aspects of this case that militate against the substitution of a community-based sentence for a period of disqualification. As counsel for the respondent emphasises, both instances of driving whilst disqualified must be regarded as flagrant breaches of the order for disqualification that was in force at the time of the offending. There can really be no excuse for Mr T driving to the supermarket to obtain food. He must have been able to find some other means of achieving that object. Similarly, I have already indicated my view that it ought to have been a relatively simple matter for Mr T to have found another means of getting to his business premises. There is, therefore, no excuse for the offending that Mr T engaged in.
[19] Having said that, I bear in mind the fact that the offending was not aggravated by matters such as careless or dangerous driving, or driving whilst under the influence of alcohol.
[20] Mr T ’ circumstances are also relevant. Other than the drink driving conviction in respect of which he was serving a period of disqualification at the time of this offending, there is nothing to suggest that he is a recidivist or prolific offender. His personal and financial circumstances are also obviously relevant, but I propose to deal with those in dealing with the criteria under s 94(1)(b)(iii).
2. The effectiveness or otherwise of a previous order for disqualification made in respect of the offender
[21] This can be an ambiguous criterion to apply. Originally the section appears to have been introduced in order to provide a means to enable recidivist offenders to
get off the so-called “wheel of offending” that repeated orders of disqualification can produce. In such cases the ineffectiveness of previous orders and the likely ineffectiveness of prospective orders for disqualification may be important factors in persuading the Court that a community-based sentence is a preferable end result.
[22] In the present case it is clear that the order for disqualification that Mr T received on 21 August 2009 was ineffective. It was ineffective to prevent him from driving on 7 November and it was ineffective again to prevent him from driving on 18 November 2009. Having said that, I am satisfied that he understands fully the gravity of the offence that he has committed and he must understand now the seriousness with which the Court views it.
3. The likely effect on the offender of a further order of disqualification
[23] I consider that this is an important factor in the context of the present case. Mr T is the owner of a well-drilling business. He has worked in that industry for many years. Early in 2010 his previous employer of six years went into liquidation. Mr T was faced, at that time, with the prospect of walking away from the industry and receiving an unemployment benefit. He saw, however, an opportunity to resurrect the business and to continue in paid employment. For that reason he acquired assets from his former employer’s business and he also employed two staff members with relevant experience. He did so after seeking and obtaining assurances from potential clients that they would engage the services of his firm if he set up in business.
[24] Counsel for the respondent points out that Mr T set up this business in the certain, or virtually certain, knowledge that he faced further orders for disqualification in light of his offending in November 2009. She submits that it was therefore somewhat irresponsible of Mr T to put himself in a position whereby he acquired equipment and engaged employees when the likelihood was that he would not be able to conduct his business if further periods of disqualification were imposed.
[25] In response to this submission, however, I accept that it is necessary for the business to have an employee who holds heavy traffic licences and licences to tow heavy machinery and dangerous machinery. I also accept that those qualifications are not easily attained, and that the reality is that Mr T ’ business was unable to afford to engage appropriately qualified employees to take his place in the event that a further period of disqualification was imposed. Mr T was, and is, the person who must carry out those functions in his business.
[26] I accept, also, counsel for the respondent’s submission that Mr T took a risk when he started his business. He could not guarantee that the Court would grant any application under s 94. To that end he went into the new business with his eyes open.
[27] I do not consider, however, that Mr T can necessarily be criticised for doing what he did. The option for him, if he did not acquire the assets, was to receive an unemployment benefit and thereby become a drain on the community rather than a contributor to it. He also saw, and took advantage, of the opportunity to provide paid employment to two other persons who presumably would be out of work if he had not taken that step. I therefore do not consider that the fact that Mr T started his business when he did can be held against him.
[28] The evidence is clear that, if Mr T is disqualified, the business will cease to operate. Nobody else will be able to drive and operate the heavy equipment that is used for well-drilling and that needs to be transported from place to place. Not only Mr T but also his two employees would then be out of work. It seems to me that those are significant consequences in terms of s 94.
4. The interests of the public
[29] I acknowledge that the public interest will, in many cases, favour a period of disqualification being imposed. Prima facie that would be the position in the present case because of the fact that Mr T has so deliberately flouted the Court’s orders. There is also the aggravating factor that the second offending occurred
within a very short period of time after the first. Ordinarily, those factors would probably be determinative of an application under s 94.
[30] In the present case, however, I consider that those aspects of the public interest must be weighed against the public interest unquestionably inherent in any situation that involves the retention of gainful employment. There is, in my view, and as the courts have recognised, a public interest in ensuring that persons who can obtain paid employment, and who can also employ others, do not needlessly lose their livelihoods. Viewed overall, I consider that the public interest factor weighs in favour of Mr T rather than against him.
Conclusion
[31] Taking all of those factors in combination, and notwithstanding the undoubted seriousness of Mr T ’ offending, I have reached the conclusion that it would be inappropriate to impose a further period of disqualification.
[32] This really answers the next issue that I need to determine, which is whether it would be appropriate to impose a community-based sentence. There is nothing to suggest that Mr T is other than a suitable candidate to carry out a community- based sentence. Indeed, the Judge must have been satisfied that that was the case because of the primary sentences that he imposed on both charges.
[33] I, too, conclude that it is appropriate in the circumstances of this case to impose a community-based sentence rather than a further period of disqualification.
What sentence should be imposed in lieu of the orders for disqualification?
[34] The issue that now arises is the nature and length of any alternative community-based sentences that should be imposed. The Judge noted that, ordinarily, a first offender on a charge of driving whilst disqualified would receive a fine of approximately $500. He elected not to impose that, and instead to impose a sentence of community work on the first charge in order to assist Mr T financially.
[35] I am told today that Mr T would prefer the first charge to be dealt with in the usual way by way of a fine. I consider a fine in the order of that which the Judge suggested to be appropriate in his case. I therefore quash the period of disqualification in relation to the first charge of driving whilst disqualified, and impose in its place a fine of $500, together with an order for Court costs in the sum of $130.
[36] On the second charge there can be no doubt that a sentence of community work is required. The Judge indicated that a sentence of between 100 and 140 hours of community work would ordinarily be imposed following conviction on a second occasion of driving whilst disqualified. I impose the same sentence that the Judge imposed, namely 120 hours of community work on that charge.
[37] In addition, and in the place of the period of disqualification that the Judge imposed, I impose a further sentence of 70 hours community work. This means that Mr T is subject to a total sentence of 190 hours community work on the second charge of driving whilst disqualified.
[38] The period of disqualification imposed in relation to that charge is quashed accordingly.
Lang J
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