Teddy v The Queen

[2019] NZHC 219

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2019-441-16

[2019] NZHC 219

BETWEEN

TEINA LIAM TEDDY

Appellant

AND

THE QUEEN

Respondent

Hearing (via AVL):	9 May 2019
Counsel:	N M Graham for Appellant M M Mitchell for Crown
Judgment:	9 May 2019

ORAL JUDGMENT OF CHURCHMAN J

Introduction

[1]    On 26 February 2019, Mr Teddy was sentenced by Judge Rea in the Hastings District Court1 in respect of two charges of driving while his licence was suspended.2 The Judge declined an application for relief from mandatory disqualification and sentenced Mr Teddy to 50 hours’ community work on each charge, such terms imposed concurrently. He was also disqualified from holding or obtaining a driver’s licence for a period of one year.

[2]    Mr Teddy appeals his sentence on the ground that the Judge erred in declining an application pursuant to s 94 of the Land Transport Act 1998 (the Act).

1      New Zealand Police v Teddy [2019] NZDC 7591.

2      Land Transport Act 1998, ss 32(1)(c) and 32(4); maximum penalty two years’ imprisonment or a fine of $6,000, and disqualification from holding or obtaining a driver licence for at least one year.

TEDDY v R [2019] NZHC 219 [9 May 2019]

[3]    The Crown’s position is that there was no error in the District Court’s exercise of discretion.

The offending

[4]    On 26 November 2018, Mr Teddy was served with a suspension notice for a period of three months for excess demerit points. At the time of his suspension, he held a learner driver licence.

[5]    On 10 January and 19 January 2019, Mr Teddy was stopped by police whilst riding a Harley Davidson motorcycle. Both were routine traffic stops. On both occasions, he gave the explanation that he did not know he was suspended.

District Court decision

[6]    In brief sentencing notes, the Judge referred to Mr Teddy’s previous convictions for driving-related offences, noting that he had been granted relief under s 94 back in 2015 and had then gone on to breach his sentence of community work.3 He said:4

On this occasion, you are back on two separate occasions, driving when you knew you were not supposed to be, and you want the same consideration. That would simply leave you and others to conclude that you can drive whenever you like because when you turn up to Court, they will not disqualify you any further. That is not going to happen.

Approach to appeal

[7]    This appeal is brought under s 250 of the Criminal Procedure Act 2011. An appeal against sentence is an appeal against a discretion and must only be allowed if the Court is satisfied that, for any reason, there was an error in the sentence imposed and a different sentence should have been imposed.5 The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.6

3      New Zealand Police v Teddy, above n 1, at [2].

4 At [2].

5      Tutakangahau v R [2014] NZCA 279.

6      Ripia v R [2011] NZCA 101 at [15].

Relevant law

[8]    The disqualification was imposed against an application under s 94 of the Act for substitution of disqualification with a community-based sentence. That section relevantly provides:

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.

(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.

…

[9]    A number of authorities have considered the underlying purpose of s 94 and the manner in which it should be applied.

[10]In Wilson v Police, it was observed:7

[12] Section 94 should only justify a variation from the norm where the personal circumstances of the offender, and in particular the rehabilitative prospects, justify affording the offender an opportunity to break the cycle of circumstances contributing to the recidivist offending.

[11]In Parata v Police, the need to bear in mind principles of deterrence was noted.

The Court said:8

[T]he provision makes plain the offender’s interests are but part of the statutory mix. And, too ready resort to s 94 could undermine the efficacy of disqualification as a penalty more generally.

[12]   While it is not necessary to establish hopeless recidivism in order to qualify for consideration, a candidate for relief from the otherwise mandatory disqualification must, nonetheless, demonstrate that such is appropriate, for example, by establishing that further disqualification would create special hardship or otherwise be contrary to the public interest.9

7      Wilson v Police [2014] NZHC 3028.

8      Parata v Police [2016] NZHC 3026 at [10].

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

Discussion

[13]   Prior to sentencing, the then counsel for Mr Teddy filed an affidavit and memorandum in support of s 94 being applied. The basis of that application was essentially that Mr Teddy had made arrangements to sit the appropriate motorcycle licence once his suspension was lifted. He was in full-time stable employment, and remained offence-free since 2015, and was willing and able to complete a community- based sentence.

[14]   There is no issue as to Mr Teddy being able to make an application under s 94, having been disqualified from holding a driver licence.10 As the Court considered it appropriate to sentence him to a community-based sentence, he met the third requirement of  s  94.11  The  Court  must  then  have  regard  to  the  four  subsections (1)(b)(i)-(iv).

[15]   In terms of the circumstances of the case, in comprehensive submissions, counsel for Mr Teddy, Ms Graham, notes that, while Mr Teddy faced two charges of driving while subject to a suspension notice, he had not appeared before the Court in over three years and, at the time of sentencing, was no longer subject to that suspension order.

[16]   The Crown submits that  it is  of relevance that,  on one of the  occasions,   Mr Teddy had been observed speeding and, on both occasions, he was riding a high- powered motorbike, despite not holding a motorcycle licence of any class. No justification was advanced for the driving, and Mr Teddy was dishonest in his explanation to the officers who apprehended him. It is submitted by the Crown that it cannot be said his issues with driving are confined to licensing matters, as his previous convictions include two of driving with excess breath alcohol and one for careless driving.

[17]   As to the effectiveness of previous disqualifications, Ms Graham submits that previous sentences of disqualification have simply resulted in Mr Teddy appearing in

10     Land Transport Act 1998, s 94(1)(a).

11     Section 94(1)(c).

Court for breaching them. She submits there was no other associated offending for the previous three convictions. Against this, has to be balanced the fact that Mr Teddy has previously been the beneficiary of a disqualification waiver, but failed to take that opportunity to advance his licensing status, and has now gone on to re-offend in the same manner twice.

[18]   These are factors relevant to assessing Mr Teddy’s rehabilitative prospects. The concept of rehabilitation and the likelihood of it are matters very much at the centre of an application under s 94. Unfortunately for Mr Teddy, his track record does not give the Court much confidence that, if he were, for the second time, to be granted an indulgence under s 94, it is likely that his offending would cease.

[19]   Counsel for the Crown has this morning advised the Court that Mr Teddy has since the decision under appeal, been apprehended on two further occasions in relation to driving matters. Ms Graham submits that the Court should disregard these matters and focus on the facts as were before Judge Rae. Given that there is the presumption of innocence and Mr Teddy has not yet, apparently, pleaded to either of these matters. I put them to one side in relation to my consideration of this appeal.

[20]   The next aspect that I turn to consider is the likely effect of a further order of disqualification on Mr Teddy. Ms Graham submits that a further period of disqualification means that Mr Teddy would not be able to move on from his learner’s licence, nor sit his motorcycle licence, until that further period of disqualification ends. That submission is undoubtedly correct although that is the consequence of offending against the law in the way Mr Teddy has done.

[21]   The Crown submits that, as Mr Teddy is a resident of Napier, further disqualification would be unlikely to cause him any insurmountable difficulty in continuing his employment and there is no evidence of any special hardship likely to occur as a result of disqualification. While I accept that submission, I note that the issue of special hardship is not the factor that is determinative when the Court is considering an application under s 94. The focus on that section is very much on rehabilitation and whether or not a waiver from the otherwise mandatory disqualification would assist with that rehabilitation.

[22]   With regard to the final consideration, being the interests of the public, while Ms Graham argues that this factor is neutral, the Crown submits that there is a public interest in both specific and general deterrence. I accept that submission. However,  it also must be balanced against the obvious purpose and focus of this section which is directed towards the rehabilitation of recidivist offenders, particularly those whose offending relates simply to ignoring disqualifications from driving.

[23]   It is my view, having considered these relevant competing factors and the circumstance that Mr Teddy finds himself in, that the circumstances of this case do not justify a variation from the norm of disqualification under s 32 of the Act.  While  Mr Teddy has been previously disqualified, he has also already benefited from a disqualification waiver and, as the Crown noted, nevertheless failed to take those steps necessary to obtain a driver’s licence, either for a car or for a motorcycle. Although Ms Graham argues that disqualification has been ineffective in the past, as Mr Teddy has merely come back before the Court for breaching those sentences, he has also been convicted for breaching a sentence of community work, so increasing the community work aspect of his sentence would similarly be problematic. It does not appear that disqualification will cause him any particular undue hardship so as to justify substitution with a community-based sentence.

[24]   Finally, deterrence, both general and specific, is a relevant public interest. Accordingly, I find no error in the Judge’s decision to decline the application under  s 94. This was not a case where it would have been appropriate to order that the otherwise mandatory requirement for disqualification should be waived.

Result

[25]For the reasons given, this appeal is dismissed.

[26]I thank counsel for their comprehensive and helpful submissions.

Churchman J

Solicitors:

Crown Solicitor’s Office, Napier for Crown N M Graham, Napier for Appellant