Takamore v Police
[2018] NZHC 3264
•12 December 2018
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2018-463-88
[2018] NZHC 3264
BETWEEN DAVID DON TAKAMORE
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 29 November 2018 Appearances:
C A Gentleman for Appellant E F Collis for Respondent
Judgment:
12 December 2018
JUDGMENT OF PAUL DAVISON J
This judgment was delivered by me on 12 December 2018 at 10:30 am Pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors:
Gowing & Co. Whakatane Crown Solicitor, Tauranga
TAKAMORE v POLICE [2018] NZHC 3264 [12 December 2018]
Introduction
[1] David Takamore pleaded guilty to a single charge of driving with excess breath alcohol (third or subsequent)1 and was sentenced to disqualification from driving for 12 months and one day.2 His application to substitute the mandatory disqualification period for a community-based sentence under s 94 of the Land Transport Act 1998 was declined. Mr Takamore now appeals against that decision.
Background
[2] Mr Takamore was apprehended driving with excess breath alcohol in Ōpōtiki at 11.15 pm on 14 July 2018. An evidential breath test gave a reading of 483 micrograms of alcohol per litre of breath, the legal limit being 400 micrograms. In explanation Mr Takamore said he had had four Steinlagers. There were no other issues with his driving.
[3] Mr Takamore is 51 years old and resides in Ōpōtiki. He has a history of driving-related offending, although none of it is recent. In 2008 he was convicted of driving with excess blood alcohol, and in 2001 he was convicted of dangerous driving. In 1988, he was convicted of driving with excess breath alcohol and disqualified from driving for one year. That same year he drove while disqualified on two occasions.
[4] Having been convicted of his third offence of driving with excess breath or blood alcohol, Mr Takamore faced a maximum penalty of two years’ imprisonment or a $6,000 fine, and a mandatory disqualification period of at least one year.3 His counsel made an oral application at sentencing for part of the mandatory disqualification period to be substituted for a community-based sentence under s 94 of the Land Transport Act.
[5] Judge Bidois declined the application on 23 August 2018, although his Honour noted that he was sympathetic to a partial disqualification given the 10-year gap between the present offending and Mr Takamore’s previous conviction for driving
1 Land Transport Act 1998, ss 56(1) and 56(4).
2 Police v Takamore [2018] NZDC 19508.
3 Land Transport Act, s 56(4).
with excess breath alcohol. The Judge also recorded that Mr Takamore had written a letter of apology to the Court explaining that he was previously a heavy drinker, but no longer. He had lost a large amount of weight in recent years due to health problems and, the Judge commented, it may have been that he thought he could consume four bottles and be under the limit but with his weight loss and health situation that was no longer the case.
[6] The Judge went on to acknowledge that applying to re-sit his license after disqualification for 12 months and one day could be a problem financially and practically for Mr Takamore, and observed that the law was somewhat unclear as to the circumstances in which s 94 applied. However, the Judge concluded that for reasons of consistency with other sentencing decisions (which were not expressly cited), he was obliged to impose the mandatory disqualification period of 12 months and one day.
Grounds of appeal
[7] Ms Gentleman for Mr Takamore submits that the Judge erred in applying s 94 by giving it too narrow an application. She says that s 94 can apply to offenders in Mr Takamore’s position, even though he is not in a cycle of offending and is charged with his third offence of driving with excess breath/blood alcohol. She submits that there is nothing to indicate the section cannot apply to those charged with alcohol-related driving offences, and submits that the Judge should have exercised his discretion under s 94 for the following reasons:
(a)There were no aggravating features of the offending, and Mr Takamore had a relatively low reading of 483 micrograms of alcohol per litre of breath.
(b)The previous disqualification orders imposed on Mr Takamore have been effective, although he drove while disqualified on two occasions in 1988. There are lengthy gaps between Mr Takamore’s offending.
(c)The imposition of disqualification will likely result in extreme financial and personal hardship for Mr Takamore, including inability to work and travel to medical appointments.
(d)It is in the public interest that Mr Takamore be able to support himself financially and maintain his employment.
Respondent’s submissions
[8] Ms Collis for the respondent says that there was no error in making an order for disqualification, and that this sentence was appropriate. She submits that the Judge undertook a sufficient analysis of the factors listed in s 94, and exercised his discretion not to substitute a community-based sentence.
[9] Ms Collis acknowledges that there is a public interest in Mr Takamore being able to work and provide for himself, but submits that this must be balanced against the public interest in discouraging driving while under the influence of alcohol. She further notes that no specifics have been provided as to Mr Takamore’s job in Tauranga, and suggests he may be able to secure a job that does not require him to drive to and from work. In her submission the consequences of disqualification for Mr Takamore are not out of the ordinary.
Approach on appeal
[10] This Court must allow the appeal if satisfied that, for any reason, there is an error in the sentence imposed on conviction, and that a different sentence should be imposed.4 In any other case, the Court must dismiss the appeal.5
[11] The power to make an order under s 94 of the Land Transport Act is the exercise of a statutory discretion.6 The Court therefore has limited jurisdiction on appeal: it may only interfere if the appellant can demonstrate that the Judge in the Court below erred in principle in exercising his or her discretion; failed to take into
4 Criminal Procedure Act 2011, s 250(2).
5 Criminal Procedure Act 2011, s 250(3).
6 Keates v Police HC Auckland CRI-2010-404-269, 21 September 2010 at [6].
account a material consideration; took into account an irrelevant consideration; or was plainly wrong.7
[12] The weight to be given to individual factors is a matter for the sentencing Judge. It is not for the appellate Court to say that the Judge placed undue weight on one factor, or should have placed greater weight on another.8
Discussion
[13]Section 94 is in the following terms:
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,—
7 Keates v Police HC Auckland CRI-2010-404-269, 21 September 2010 at [6]–[7]; see also s 250(2) of the Criminal Procedure Act 2011.
8 Keates v Police HC Auckland CRI-2010-404-269, 21 September 2010 at [18].
(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.
(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
(b)the offender is prohibited from applying for a limited licence under section 103(2)(a), (b), or (d).
[14] As I noted in Poona v Police, s 94 has often been described as a remedial provision for offenders who repeatedly drive while disqualified, giving them an opportunity to break the cycle of offending by substituting a different form of sentence.9 However, that is not its only purpose. The section is capable of applying to anyone who meets the three criteria in s 94(1), not just those who are caught in a cycle of disqualified driving offending.10 Ms Gentleman helpfully summarised the relevant authorities on this point, which are discussed in detail in the recent judgment of Courtney J in Timbrell v Police.11 I adopt Courtney J’s analysis.
[15] It is not entirely clear from the sentencing notes whether Judge Bidois recognised that s 94 could apply to an offender convicted of driving with excess breath
9 Poona v Police [2018] NZHC 791 at [17]; see also Maeva v Police HC Auckland CRI-2010-404- 402, 11 March 2011 at [30]; Paikea v Police [2017] NZHC 3032 at [12]; Wilson v Police [2014] NZHC 3028 at [10].
10 Beeston v Police [2012] NZHC 1064 at [22]–[24]; Wadsworth v Police [2014] NZHC 3302 at [18]; Timbrell v Police [2018] NZHC 2397 at [7]–[13].
11 Timbrell v Police [2018] NZHC 2397 at [7]–[13].
alcohol who was not on a cycle of offending. His Honour initially stated he accepted that Mr Takamore met the criteria of s 94, but went on to say:12
I have previously refused to apply s 94 for drink-driving on the basis that it is a mandatory penalty and if I was to deal with applications like this on every drink-drive third or subsequent that I receive then that would cause us a lot of time and there would need to be some direction by the High Court as to when [s 94] can apply, what are the personal circumstances, what are the personal commitments defendants might have to say care arrangements for children and all sorts of things which would be relatively complicated and time consuming.
[16] Judge Bidois did not go on to engage in any consideration of the s 94(1) criteria; rather, he dismissed the application. It therefore seems that he decided, for policy reasons or otherwise, that s 94 could not apply where drink driving (third or subsequent) was concerned. I consider that this was an error, and it is appropriate to exercise the s 94 discretion afresh.
[17] Mr Takamore plainly meets the first criterion in s 94(1)(a), in that he has been sentenced to disqualification before. The more difficult question is determining whether a sentence of disqualification is inappropriate with regard to the factors set out in s 94(1)(b):
(a)the circumstances of the case and of the offender;
(b)the effectiveness or otherwise of a previous order of disqualification made in respect of the offender;
(c)the likely effect on the offender of a further order of disqualification; and
(d)the interests of the public.
[18] These criteria are broadly framed, and Judge Bidois sought guidance from the High Court as to how they might be applied. I have had regard to a number of cases involving a single charge of driving with excess breath/blood alcohol (third or
12 At [8].
subsequent) where a s 94 application was made, in order to extract some general principles. It is of course not possible to set out any prescriptive formula for determining when a s 94 application will be granted. Each case turns on its own individual facts, and a s 94 application always requires a nuanced assessment and careful weighing of various factors. Ultimately it is an exercise of discretion for the individual sentencing Judge. However, it is possible to make the following general comments about the s 94(1)(b) criteria in the particular context of driving with excess breath/blood alcohol (third or subsequent).
[19] First, a s 94 application is more likely to be granted if the driving itself was not of a kind that endangered other road users. Of course, driving with excess breath or blood alcohol inherently involves danger to the public, by reason of the impairment of the driver. Where it is repeated a third or subsequent time, a pattern begins to emerge which suggests the offender is at risk of offending in the same way again in the future. For those reasons a mandatory minimum period of at least one year’s disqualification is almost always necessary and appropriate to meet the purposes and principles of sentencing. However, without diminishing the gravity of the offence of drink driving, the offending is naturally less serious if the defendant’s driving at the time was unremarkable, and if the amount by which the defendant was over the limit was minimal.
[20] The risk that the offender poses to the public is also less if the offender’s previous convictions for drink driving are historic.13 A significant gap in the offender’s history with no driving-related incidents will point in favour of a s 94 application being granted, particularly where combined with remorse and strong rehabilitative prospects.14 The need for protection of the community and deterrence in the form of a mandatory disqualification order is reduced in these circumstances.
[21] Finally, a s 94 application is more likely to be granted if there is some compelling reason why the defendant needs to drive, for example to maintain their
13 See Lawrence v Police [2013] NZHC 3372; Timbrell v Police [2018] NZHC 2397; and Beeston v Police [2012] NZHC 1064.
14 Compare Parata v Police [2016] NZHC 3026, where the appellant had an extensive criminal record that included nine convictions for driving with excess breath alcohol, the most recent conviction for that offence being only one year earlier. He had previously had the benefit of s 94 order and had offended in the same way again. The s 94 application was declined.
employment, to take care of dependent family members, or to access healthcare and treatment for a medical condition.15 The courts have recognised the public interest in allowing an offender to maintain their employment and to provide for themselves and their dependents from their own resources.16 However, the onus is on the applicant to provide clear and specific evidence as to the likely effect of a further order of disqualification.17
[22] In some cases the combination of these factors has persuaded the Court that a sentence of disqualification is inappropriate and a community-based sentence should be imposed instead. I emphasise that these observations are general in nature and I am not setting down any requirements or prerequisites.
[23]I turn now to consider the s 94(1)(b) criteria in the context of the present case.
Circumstances of the case and the offender
[24] As Judge Bidois noted, there were no aggravating features of the offending itself. Mr Takamore’s driving was not dangerous or remarkable in any way. He was not significantly over the 400-microgram limit, and he was co-operative with police.
[25] I have already recorded Mr Takamore’s history of driving-related offending. His most recent conviction for driving with excess breath alcohol was 10 years ago, and there was a further 10-year gap between that offending and his first conviction for driving with excess breath alcohol. Judge Bidois was satisfied that he was deeply remorseful and accepted full responsibility for his offending, having written a letter of apology to the Court.
15 See Gilbert v Police [2014] NZHC 508; Beeston v Police [2012] NZHC 1064; and Timbrell v Police [2018] NZHC 2397.
16 See Beeston v Police [2012] NZHC 1064 at [33]; Jukes v Police HC Christchurch AP228/94, 5 October 1994.
17 Compare Timbrell v Police [2018] NZHC 2397 and Tai v R [2018] NZHC 2422: in Tai it seems the applicant fell short of establishing compelling personal circumstances, and Courtney J observed at [15] that although Ms Tai provided important support for her nephew, “no specifics were provided as to how often that transport is required”.
The effectiveness or otherwise of previous orders of disqualification
[26] This factor is somewhat ambiguous.18 Compliance with prior sentences of disqualification would usually be in the offender’s favour at sentencing, but in the case of a s 94 application previous compliance may suggest that a disqualification order is effective in preventing the offender from driving, and disqualification is therefore an appropriate sentence. That was the approach taken in Beeston v Police.19 In Jukes v Police, however, Tipping J took the contrary approach, noting that where a previous disqualification order was thoroughly ineffective, there is a case for saying it should be reinforced by a further order.20
[27] In the present case, Mr Takamore drove while disqualified twice in 1988, after his first conviction for driving with excess breath alcohol. However, he complied with a four-month disqualification order without incident in 2001 and with a six-month disqualification order in 2008. His most recent history therefore suggests that disqualification orders are effective for Mr Takamore, although they have not always been effective in the past. I view this factor as neutral.
Likely effect on the offender of a further order of disqualification
[28] Ms Gentleman says that the imposition of disqualification will likely result in extreme financial and personal hardship for Mr Takamore. He had been completing a multimedia course and was to commence work in Tauranga in 2019. Since his sentencing in the District Court, Mr Takamore suffered a heart attack while riding a bike. He will now require a pacemaker and regular hospital visits in Tauranga, which means he will need to travel from his home in Ōpōtiki on a regular basis. She further says that Mr Takamore cannot afford to apply for a limited licence, which generally costs around $2,000.
[29] As Ms Collis points out, there is a lack of specificity to these submissions. One would typically expect an affidavit from the applicant or his or her employer
18 As recognised in Thomas v Police HC Tauranga CRI-2010-470-15, 13 May 2010 at [21]; Beeston v Police [2012] NZHC 1064 at [32]; Maeva v Police HC Auckland CRI-2010-404-402, 11 March 2011 at [28].
19 Beeston v Police [2012] NZHC 1064 at [32].
20 Jukes v Police HC Christchurch AP228/94, 5 October 1994.
explaining the circumstances of his or her employment and exactly why an ability to drive is necessary to maintain employment. It is not clear if Mr Takamore has completed his multimedia course and when exactly he commences employment. I also have no information about the regularity with which he is expected to travel to Tauranga for hospital visits, or evidence of his health condition.
[30] Before the Court could give any real weight to Mr Takamore’s personal circumstances as regards his health and employment, it would be necessary for him to provide detailed evidence by filing an affidavit and producing a medical report to support his description of his situation. It is incumbent on the applicant in a s 94 case to support their application with evidence regarding the likely effects of a disqualification. Here there is no evidence upon which to reach a conclusion as to whether Mr Takamore will suffer hardship if he is unable to drive.
Interests of the public
[31] The interests of the public can encompass a wide variety of matters.21 These include the public interest in ensuring that court orders are complied with and an effective penalty is imposed; and the public interest in keeping offenders off the road where their driving presents a danger to the public. However, as noted above, it is also in the public interest for the defendant to maintain employment and provide for themselves and their dependents from their own resources.
Conclusion
[32] I have found that the Judge erred in finding that s 94 could not be applied in cases of prosecutions under s 56(4) of the Land Transport Act 1998. In appropriate cases where the requisite criteria of s 94(1) are met and the court considers that instead of disqualification a community-based sentence would be an appropriate sentence, the court has the power to impose a community-based sentence pursuant to the provisions of ss 94(2) and 94(3).
21 Tailor v Police HC Auckland CRI-2009-404-322, 7 December 2009 at [25].
[33] Several factors point towards the exercise of the s 94 discretion in this case: the offending was at the low end of the spectrum in terms of seriousness; Mr Takamore’s previous drink driving convictions are historic; and he has demonstrated remorse. However, as I have already observed, Mr Takamore has not produced any evidence regarding his employment and medical circumstances, or otherwise detailing the hardship he claims would be caused by being unable to drive during a disqualification period of one year. In the absence of an evidential basis I cannot determine whether the likely effects of disqualification are such as to warrant recourse to s 94 instead of imposing the disqualification otherwise mandated by s 56(4).
[34] Section 250(2) of the Criminal Procedure Act 2011 provides that a first appeal court must allow an appeal against a sentence if satisfied that there is an error in the sentence imposed on conviction, and a different sentence should be imposed. While I have found that the Judge made an error in holding that s 94 could not be applied to sentencing for an offence against s 56(4) of the Land Transport Act 1998, I am not satisfied that a different sentence should be imposed. As a consequence the appeal cannot succeed.
Result
[35]The appeal is dismissed.
Paul Davison J
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