Te Aotonga v Police
[2019] NZHC 1274
•6 June 2019
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2019-463-000036
[2019] NZHC 1274
BETWEEN ROBIN BOBBY TE AOTONGA
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 5 June 2019 Appearances:
C A Gentleman for Appellant J M Sutton for Respondent
Judgment:
6 June 2019
JUDGMENT OF WYLIE J
This judgment was delivered by Justice Wylie On 6 June 2019 at 3.00pm
Registrar/Deputy Registrar
Solicitors/counsel: Gowing & Co, Whakatane Crown Solicitor, Tauranga
TE AOTONGA v NEW ZEALAND POLICE [2019] NZHC 1274 [6 June 2019]
Introduction
[1] The appellant, Ms Te Aotonga, appeals a decision given by Judge Bidois in the District Court at Whakatane on 23 March 2019.1
[2] Ms Te Aotonga entered a guilty plea to a charge of refusing to permit a blood specimen to be taken, having been required to do so by an enforcement police officer, contrary to s 60(1)(a) of the Land Transport Act 1998 (“the Act”). She made an application under s 94 of the Act seeking a community-based sentence, rather than disqualification from holding or obtaining a driver’s licence. Judge Bidois sentenced her. He fined her $400 plus costs. He declined the s 94 application and imposed a six month period of disqualification.
[3] Ms Te Aotonga, through her counsel, Ms Gentleman, submitted that the Judge erred in declining her application under s 94 of the Act. Ms Gentleman argued that the Judge failed to properly take into account Ms Te Aotonga’s personal circumstances and that he further erred in considering the public interest as he was required to do under the section.
[4] The appeal was opposed by the respondent. Ms Sutton, for the police, argued that Judge Bidois did not materially err in law when he declined the application, and that his exercise of the discretion conferred by s 94 was correct.
Relevant factual background
[5] On 30 September 2019, Ms Te Aotonga was driving her motor vehicle. She was pulled over at 1 am in the morning. There was no suggestion that she was driving badly at the time. Rather, she was pulled over by the police (I assume at a check point) and asked to undertake a breath test.
[6] Ms Te Aotonga refused to undergo a breath test. She was taken back to the police station and she was then asked to give a blood sample. She refused to permit a blood sample to be taken. As a result, Ms Te Aotonga was charged pursuant to s 60(1)(a) of the Act.
1 Police v Te Aotonga [2019] NZDC 6575.
[7] As noted, Ms Aotonga promptly entered a guilty plea to the charge. She applied for a community-based sentence under s 94 of the Act and filed an affidavit in support. She explained in her affidavit that she was returning home on the evening in question, having been at a bar listening to a band. She arrived at the bar at around 10
– 10.30 pm in the evening, and she was returning home at about 1.00 am the following morning. She met friends at the bar, and while she was there, she consumed four Soul beers. The police breath alcohol check list records that her eyes were neither glazed nor bloodshot at the time and that her speech was not slurred. When she was being processed at the police station, she made some foolish decisions, which she since regrets and apologises for. She has suffered from anxiety for many years and when under pressure, she can have panic attacks which are very debilitating. She takes medication to help with her anxiety. On the night in question, her anxiety got the better of her, and she became “locked into the idea” that she needed to get her phone, so that she could call a friend who would be able to give her the number of a lawyer to call. As a result, she became uncooperative with the police officer.
[8] The police did not seek to cross-examine Ms Te Aotonga on her affidavit and Judge Bidois accepted Ms Te Aotonga’s explanations in regard to these various matters.
The District Court’s decision
[9] Judge Bidois set out the relevant facts, and noted that Ms Te Aotonga’s counsel sought a fine. He referred to Ms Te Aotonga’s affidavit, referring not only to the matters set out above, but also to the personal circumstances which Ms Te Aotonga had deposed to (see below at [21]). In reference to the s 94 application, the Judge accepted that there is a statutory basis for persons to apply under s 94 “to get off what we call the treadmill of being a disqualified driver”. He noted that Ms Te Aotonga’s application was prefaced on her personal circumstances, and that, because there was a strong likelihood that she would have to drive, she would risk further offending. The Judge then recorded his view that Ms Te Aotonga’s personal circumstances, while demanding, were not greatly different from those of very many other drink drivers. He stated that there were public interest factors that needed to be taken into account – namely, that when people do not undergo a breath test or give a blood sample, their
level of intoxication is unknown. He noted that is the police’s responsibility to determine the level of intoxication of a person pulled over while driving, and that Ms Te Aotonga’s actions prevented the police from determining whether she was intoxicated, and if so, to what extent. He accepted that Ms Te Aotonga’s reasons for refusing to give a blood test were genuine, and that they were medically based, but he stated “that that is just part of the consequences”. The Judge declined to grant the application under s 94 for these public interest reasons. He also stated that he did so for his own benefit, because, if the application was granted, he would face “a wave of applications under s 94”, observing that most offenders have personal circumstances which are equally demanding, whether in relation to work, family, sport or whatever.
[10] The Judge imposed a fine of $400. He recorded that he had moderated the fine to acknowledge Ms Te Aotonga’s plea, because she was “pretty much a first offender”. He went onto impose the six month mandatory disqualification, and directed that it was to commence immediately.
The appeal
[11] The appeal is brought pursuant to s 250 of the Criminal Procedure Act 2011. It provides that this Court, as the first appeal Court, must allow the appeal if it is satisfied that, for any reason, there is an error in the sentence imposed on conviction, and that a different sentence should have been imposed. In any other case, the Court must dismiss the appeal.
[12] This Court does not start afresh, or simply substitute its own opinion for that of the original sentencer. Rather, it must be shown that there was an error, whether intrinsically, or as a result of additional material submitted on appeal. If there is an error of the requisite character, the Court will then form its own view of the appropriate sentence.2
2 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482; R v Shipton [2007] 2 NZLR 218 (CA).
Submissions
[13] Ms Gentleman submitted that the Judge erred in exercising his discretion when he was considering the appellant’s personal circumstances. She went through those circumstances, and submitted that they were not circumstances which apply to most persons who come before the Court for drink driving offences. She also argued that Judge Bidois erred in his consideration of the public interest, and that he constrained the exercise of his discretion by taking into the account the fact that there could be a wave of applications were Ms Te Aotonga’s application to be allowed. Ms Gentleman submitted that the application should be looked at afresh, and that in the circumstances as they apply in this case, there will be considerable hardship to Ms Te Aotonga if she loses her driver’s licence.
[14] Ms Sutton, for the Crown, accepted that Judge Bidois did not break down his consideration of the application into the various factors set out in s 94. She was also prepared to accept that the “wave of applications” factor referred by the Judge was irrelevant, and that it should not have played a part in his reasoning process. She nevertheless argued that the Judge did not materially err, that he took all relevant factors into account, and that the discretion was properly exercised on the facts of this case.
Analysis
[15] Ms Te Aotonga was charged under s 60(1)(a) of the Act. That section provides that if a person fails to provide a blood specimen, having been required to do so by an enforcement officer, then that person commits an offence. Relevantly, s 60(2) provides that if a person is convicted of a first or second offence under the section, the maximum penalty is imprisonment for a term not exceeding three months or a fine not exceeding
$4,500, and that the Court must order the person to be disqualified from holding or obtaining a driver’s licence for six months or more. The mandatory disqualification does not apply if an order is made under s 65 (which provides for mandatory disqualification and assessment for repeat offences) or an alcohol interlock sentence is ordered under s 65AC(1). Here neither of these exceptions was in issue. It follows that the starting point was mandatory disqualification.
[16] This starting point however is subject to the discretion to substitute a sentence of disqualification with a community-based sentence under s 94. Relevantly, that section 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.
…
(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.
(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.
…
[17] The discretion conferred by s 94 is broad. It requires essentially that the circumstances makes disqualification inappropriate and a community-based sentence appropriate.
[18] The Courts have considered s 94 on a number of occasions. The section is often utilised where offenders have been subject to a number of disqualifications and are on a treadmill of reoffending. The section permits such offenders being dealt with in an alternative way.3 The section is not however limited to such offenders. Unless s 94(4) applies, it is capable of applying to any person who has at least one previous disqualification. Tipping J, in the context of the predecessor section (s 30AC Transport Act 1962) stated as follows:4
It is interesting to note that in that precondition there is no stipulation for more than one previous disqualification order. For that reason, as I have said on previous occasions … the section can jurisdictionally apply to people who are facing their second offence … The conventional view of the purpose of the section was that it was designed to get people away from the continual wheel of offending but the section on its terms is not to circumscribed … 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.
3 Maeva v Police HC Auckland CRI-2010-404-402, 11 March 2011 at [30].
4 Jukes v Police HC Christchurch AP228/94, 5 October 1994.
A similar approach has been taken by the Court in a number of subsequent decisions.5
[19]Lang J has helpfully summarised the effect of the section as follows:6
[14]Broken down into its components, the effect of the section for present purposes can be summarised as follows:
(a)It permits the sentencing Judge to impose a community-based sentence instead of the otherwise mandatory period of disqualification.
(b)An offender will only be eligible for such a sentence if he or she has previously been the subject of an order for disqualification.
(c)An offender will not be eligible for a community-based sentence if s 63 or 65 applies, or if s 103(2)(a) , (b) or (d) operates to prohibit such a sentence being imposed.
(d)In determining whether to impose a community-based sentence the Court must consider whether it would be inappropriate to make an order for disqualification 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,—
(e)The Court must also be satisfied that it would be appropriate to impose a community-based sentence having regard to Part
2 of the Sentencing Act 2002.
[20] In the present case, Judge Bidois accepted that the section could apply to Ms Te Aotonga. He also accepted that her personal circumstances were demanding.
5 Beeston v Police [2012] NZHC 1064 at [23] and [24]; Emani v Police HC Auckland CRI-2009- 404-235, 28 September 2009 at [10]; Police v Body [2013] NZHC 1586 at [5]; Wadsworth v Police [2014] NZHC 3302 at [18]; Timbrell v Police [2018] NZHC 2397 at [13].
6 Admore v Police HC Auckland CRI-2008-404-245, 3 December 2009.
[21] Those circumstances were set out in Ms Te Aotonga’s affidavit. She deposed that she lives in Whakatane in rental accommodation. She has four children, the youngest being four years old, and the oldest being 16 years old. The three eldest children go to local schools and the youngest is in child care for 20 hours per week. She drives the youngest to and from the child care centre. Her other children walk to and from school unless it is raining, in which case she drives them. One of her children has sports commitments on Wednesdays and Saturdays and she drives that child to and from those commitments. Her oldest daughter works at a local restaurant for between
20 and 40 hours each week. She drives her daughter to and from that work. Ms Te Aotonga also deposes that she does not live within walking distance of a supermarket, and that she regularly needs to use her car to go shopping. She also volunteers for parent help at the childrens’ school and that she needs her vehicle to get there and back when attending school. She is currently pregnant with her fifth child which is due in July this year. Her main source of income is the sole parent benefit, although she has been working 10 hours per week at a nearby store to assist make ends meet. She is presently on leave due to her pregnancy. She deposes that were she to be disqualified from driving, it would cause significant hardship to her children and would severely impact on her ability to provide for their daily needs.
[22] As I have already noted, Ms Te Aotonga was not cross-examined in relation to this evidence, and the Judge accepted her evidence in regard to these matters.
[23] The Judge nevertheless declined to exercise the discretion conferred on him by the section because he considered that refusing to give a blood sample when requested gives rise to a public safety issue, and, because, if the application were to be granted, it could lead to a wave of similar applications.
[24] I accept that drink driving raises significant public safety concerns, and that when a person refuses to undergo a breath test or subsequently give a blood sample, this denies the police the ability to find out whether or not he or she was drink driving, and if the person were drink driving, how intoxicated he or she was. There is a strong public interest in keeping potentially dangerous drivers off the roads, and it is not in the public interest that potential offenders should flout the requirements of an
enforcement officer. However, this public safety issue is not a bar to the application of section 94.
[25] I also accept that too ready a resort to s 94 could undermine the efficacy of disqualification as a penalty in such cases.7 I suspect this is what the Judge meant when he referred to his view that there might be a wave of such applications if he were to grant Ms Te Aotonga’s application. I do not consider that this factor was irrelevant.
[26] Nevertheless, there is also a public interest in ensuring that a solo mother of four children, with a fifth child due shortly, and during the period of disqualification, should be able to properly provide for the proper care and needs of her children. That the public interest extends to encompass these matters was accepted by the Crown. The Judge did not take this into account in his decision when he was considering the public interest, and in my judgment, he erred in failing to do so.
[27] Accordingly, I have concluded that the Judge erred in his application of the section. I now turn to consider the various matters set out in s 94 afresh.
[28] First, Ms Te Aotonga had previously been disqualified from holding or obtaining a driver’s licence. She was convicted to a sentence of community service, and disqualified from driving for six months for driving with excess breath alcohol in January 1999.
[29] I turn to the circumstances of the case and the offender. The circumstances leading to the conviction were relatively routine. Ms Te Aotonga was stopped and asked to undergo a breath test. There is nothing to suggest that she was driving erratically or dangerously at the time. She has deposed that the police breath alcohol checklist recorded that her eyes were neither glazed nor bloodshot, and that her speech was not slurred. This has not been disputed. As Judge Bidois noted, the inference was that she was not seriously affected by alcohol. The refusal to give a blood sample was irrational, but, as the Judge accepted, it was occasioned by a medical condition, no doubt either caused or exacerbated by the circumstances Ms Te Aotonga found herself in.
7 See, e.g. Power v Police HC Christchurch CRI-2008-409-123, 15 August 2008 at [18] and [24].
[30] A previous order for disqualification imposed on Ms Te Aotonga was obviously effective. She has had no further convictions of any kind since the conviction in early 1999. She has had 20 years offence-free.
[31] The likely effects on Ms Te Aotonga are significant. I refer to the matters which I have set out in paragraph [21] above. Ms Te Aotonga is a solo mother, with four children. She is expecting another child shortly. Her ability to cater for the needs of her children will be severely compromised if she is disqualified from driving. I accept that relying on public transport to get her children to various appointments, day care and school would be impractical and difficult. Judge Bidois did suggest that Ms Te Aotonga could seek a limited licence, but there are practical difficulties with that suggestion. First, Ms Te Aotonga has deposed that she has limited means. I was told from the bar that the costs of obtaining a limited licence are not insignificant. There are likely to be legal fees in the vicinity of $1,500 to $2,000, and there is a Court filing fee of $200. I suspect that a financial outlay of this kind is beyond Ms Te Aotonga’s limited means. Further, the terms on which any limited licence is likely to be granted would not readily accommodate the needs of Ms Te Aotonga’s children.
[32] This leads to the interests of the public. I have accepted that there is a public interest in ensuring that those who drink and drive are disqualified from driving and are not on the road. However, in my judgment, and as I have noted, there is also a public interest in ensuring that a solo mother in Ms Te Aotonga’s circumstances should be able to properly provide for the proper care and needs of her children.
[33] I have also considered the purposes and principles of sentencing set out in ss 7 and 8 of the Sentencing Act. In my view, denunciation and deterrence can be satisfactorily met in this case by a fine and a community-based sentence.
[34] Given the circumstances of this case, I consider, by a fine margin, that the appeal should be allowed and that the disqualification from driving should be set aside.
[35] There was no challenge to the fine imposed. While the appeal against sentence is allowed to the extent that the sentence of disqualification is quashed, the fine imposed by Judge Bidois is not set aside. It remains in place.
[36] As a result, the Court is now required to impose a community-based sentence. I discussed with counsel what kind of community-based sentence would be appropriate. Ms Gentleman suggested a sentence of six months’ supervision. Ms Sutton suggested that that was inappropriate, because Ms Te Aotonga does not suffer from any afflictions or problems which could helpfully be addressed by a probation officer under a supervision order. Ms Sutton suggested a community work sentence of between 60 and 80 hours. Ms Gentleman opposed such a sentence, arguing that it would make Ms Te Aotonga’s family commitments very hard to fulfil.
[37] I do not have the information needed to identify the appropriate community- based sentence, nor the conditions which should attach to any sentence imposed. Accordingly, I remit the matter back to the District Court for re-sentencing.
Wylie J
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