Tai v The Queen

[2018] NZHC 2422

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2018-463-000047

[2018] NZHC 2422

BETWEEN

OLGA OKEROA TAI

Appellant

AND

THE QUEEN

Respondent

Hearing:

29 August 2018

Appearances:

G Tomlinson for Appellant

S J P Davison for Respondent

Judgment:

14 September 2018

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 14 September 2018 at 10.30 am

pursuant to R 11.5 of the High Court Rules Registrar / Deputy Registrar Date………………………

TAI v R [2018] NZHC 2422 [14 September 2018]

Introduction

[1]                  Olga Tai pleaded guilty in the Opotiki District Court on 3 May 2018 to one charge of excess breath alcohol (third or subsequent).1 Judge Bidois disqualified her for 12 months and one day and fined her $700 plus costs.

[2]                  Judge Bidois refused Ms Tai’s application for an order under s 94 of the Land Transport Act 1998 substituting a community-based sentence for the disqualification.

[3]                  Ms Tai appeals the decision on the ground that the Judge made an error of law in taking too narrow a view of the scope of s 94.

The District Court decision

[4]                  In the District Court, Ms Tai’s application under s 94 was advanced on the basis that her two previous convictions for driving with excess blood alcohol were historic, the first entered in 1998 and the second in 2011. She had no other convictions of any kind. She was undergoing chemotherapy for cancer at the time of the proceeding and needed a driver’s licence to attend medical appointments and to support her nephew by driving him to Whakatane and Tauranga for treatment relating to his renal failure and diabetes.

[5]Refusing the application, Judge Bidois said:

I am sympathetic when you have that mandatory disqualification because of the fact you are going to have to re-sit your licence which causes problems in the future and it is a significant period, particularly when you are effectively a law-abiding person. But of course this is the third time you have consumed alcohol and driven and of course there are public interests in protecting the community from those who drink and drive. Some may say it is recidivist given it is your third, albeit it is spread over a long period of time. In my view, s 94 is specifically aimed at those who continue to drive whilst disqualified, they are the ones on the treadmill, not you. So in my view s 94 does not apply, well it does apply but I am not exercising my discretion to use it.

1      Land Transport Act 1998, s 56(1).

Appeal

[6]                  The scope of s 94 was argued before me on the same day in relation to another appeal.2 It is unnecessary to repeat my conclusion in the same detail.

[7]Section 94 provides:

(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

2      Timbrell v New Zealand Police [2018] NZHC 2397.

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

[[(aa)an alcohol interlock sentence has been ordered under s 65AC)1); or]]

(b)   the offender is prohibited from applying for a limited licence under s 103(2)(a), (b) or (d).]

[8]                  There are cases in this Court that take a relatively narrow view of s 94 as being directed towards the recidivist offender. In Maeva v Police,3 Wilson v Police4 and Parata v Police,5 this Court took the view that the usual sentence of disqualification was generally justified only to provide an opportunity for an offender to break the cycle of circumstances that had led to recidivist offending. As against those cases, however, there are a number that indicate a wider scope ought to be taken of s 94.

[9]                  In Jukes v Police, Tipping J said of s 30AC Transport Act 1962 (the predecessor to s 94) that:6

It is interesting to note that in that pre-condition there is no stipulation for more than one previous disqualification order. For that reason, as I have said on previous occasion in agreement with my brother Gallen in Rodgers (1989) 5 CRNZ 100, the section can jurisdictionally apply to people who are facing their second offence where they are liable to disqualification. The conventional view of the purpose of this section was that it was designed to get people away from the continual wheel of offending but the section on its terms is not so circumscribed and I am satisfied that there is jurisdiction to exercise the powers under s 30AC. …

3      Maeva v Police HC Auckland CRI-2010-404-402, 11 March 2011, at [30].

4      Wilson v Police [2014] NZHC 3028.

5      Parata v Police [2016] NZHC 3026.

6      Jukes v Police HC Christchurch AP228/94, 5 October 1994.

… Section 30AC is really a section which is designed to ameliorate the hardship that would otherwise flow from a disqualification order but with this important question of the balance of public interests.

[10]Asher J cited Jukes v Police in Emani v Police, saying:7

The [section 94] discretion is not limited in its application to offenders who fail repeatedly to honour their obligations under disqualification orders and are therefore hopeless cases. It can be applied in less serious cases where persons are facing their second offence and are liable to disqualification.

[11]That approach has since been followed in Beeston v Police,8 Police v Body9

and Wadsworth v Police.10

[12]              In my view, the wider interpretation is the correct one.

Appeal

[13]              It is, as it was in Timbrell, unclear what interpretation the Judge placed on s 94 because he referred both to s 94 being specifically aimed at recidivist offenders but then went on to note, in passing, that it did apply but his decision to refuse the application was an exercise of the discretion. There is, however, no indication as to the grounds on which the discretion was being exercised.

[14]In these circumstances, the best course is to consider the application afresh.

[15]              I have already referred to the evidential basis for Mrs Tai’s application; apparently she confirmed her unsworn affidavit in court.11 I note that the Judge also referred to a medical certificate being provided indicating that Mrs Tai had no scheduled follow-up appointments for treatment in the near future. It was argued on behalf of Ms Tai that that it was not in the public interest for the cost of transport for Mrs Tai (and presumably her nephew) to fall on the taxpayer. However, there is also a strong public interest in discouraging driving while under the influence of alcohol. It was not suggested that Ms Tai’s health or livelihood will be at risk if she cannot

7      Emani v Police HC Auckland CRI-2009-404-235, 28 September 2009 at [10].

8      Beeston v Police [2012] NZHCV 1064 at [14].

9      Police v Body [2013] NZHC 2586 at [5].

10     Wadsworth v Police [2014] NZHC 3302 at [18].

11     I was advised of this by counsel’s memorandum 13 September 2018.

drive. I accept that she provides important support for her nephew. But no specifics were provided as to how often that transport is required. If it cannot be provided through the public health system then I would expect that Ms Tai could apply for a limited licence.

[16]              The circumstances of the case do not, in my view, justify an order under s 94. The appeal is dismissed.

P Courtney J