Thompson v Police

[2017] NZHC 2347

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TAURANGA MOANA ROHE

CRI-2017-470-29 [2017] NZHC 2347

BETWEEN

PETER SHANE THOMPSON

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:

26 September 2017

(Heard at Rotorua)

Appearances:

R Treloar for the Appellant
A Shore for the Respondent

Judgment:

26 September 2017

ORAL JUDGMENT OF WOODHOUSE J

Solicitors:

Ms R Treloar, Mason Treloar Harvey, Solicitors, Pukekohe

Ms A Shore, Hollister-Jones Lellman, Office of the Crown Solicitor, Tauranga

THOMPSON v POLICE [2017] NZHC 2347 [26 September 2017]

[1]      Mr  Thompson  appeals  against  disqualification  from  driving  following conviction  on  a  charge  of  driving  while  disqualified  on  a  third  or  subsequent occasion.

[2]      He was sentenced in the District Court at Tauranga by Judge R G Marshall on

5 April 2017.1   This was for driving while disqualified in October 2016.  It appears that there were successive adjournments of the sentencing with a view to finding a suitable address for a community based sentence.

[3]      Mr Thompson had, on my count, seven previous convictions for driving while disqualified.  There are other driving offences.  In short sentencing remarks, after reviewing the driving history and the circumstances of the current offence, the Judge sentenced Mr Thompson to community detention for five months and community work of 200 hours, and disqualified him from holding or obtaining a driver licence for one year from 14 March 2018.

[4]      The reason for the disqualification commencement date was that there had been three recent convictions for driving while disqualified with successive disqualification periods of either one year or one year and one day.   These were sentences of disqualification imposed in February and June 2015 and January 2016. The earlier convictions for driving while disqualified were between 1990 and 1998.

[5]      The heart of Mr Thompson’s substantive appeal is that the Judge was not asked to consider whether a community based sentence should be imposed, rather than the disqualification, pursuant to s 94 of the Land Transport Act 1998.  There is an issue on this appeal whether Mr Thompson’s counsel in the District Court (not Ms Treloar who appears for him on this appeal) had given advice to Mr Thompson in respect of s 94.  I will come back to that.

[6]      In relation to the substantive point on the appeal, Mr Thompson also seeks leave to appeal out of time.  As noted, he was sentenced on 5 April 2017, but the

notice of appeal was not filed until 9 August 2017.

1      Police v Thompson [2017] NZDC 18758.

[7]      In addition to the application for leave, Mr Thompson seeks to rely on an affidavit filed in this Court, partly seeking to explain the  delay in bringing the appeal, but also in support of his substantive point in respect of s 94.   There is a question whether it should be admitted.

[8]      There is one further complication.  Mr Thompson in his affidavit says that he does not recall receiving advice from his former counsel of his right to make an application under s 94. The respondent, in the usual and appropriate way, asked for a waiver of privilege so that, if appropriate, an affidavit from Mr Thompson’s former lawyer could be obtained.   This appeal was brought on at short notice because another matter had been adjourned.   For that reason the respondent did not give notice to Ms Treloar until last Friday that the waiver of privilege was sought.  Ms Treloar explained that in the time available she had not been able to get instructions. And I anticipate that, even if instructions had been obtained, it is unlikely that the respondent would have been able to get an affidavit from former counsel in time for the hearing this morning.

[9]      I am satisfied that this is a case where leave to appeal should be granted, even allowing for the lack of evidence from Mr Thompson’s former counsel.  The reasons for delay, although not highly persuasive when compared with some other applications, are adequately explained.  And this is not a case where there would be any prejudice to the respondent.  In assessing an application for leave to appeal out of time it is also conventional to assess the relative merit of the proposed substantive appeal.  For reasons I come to, I am satisfied that there is sufficient merit to grant leave.

[10]     That brings the matter back to the central issue.  In a practical sense, this is whether Mr Thompson should have an opportunity to make an application under s 94 of the Land Transport Act.  The main reservation in that regard raises a question that cannot be fully answered on the information presently available.   The question is whether Mr Thompson received advice from his former counsel that Mr Thompson could make an application under s 94.  It is plain from Judge Marshall’s sentencing remarks  that  no  application  was  made  to  the  Court.    It  is  possible  that  Mr Thompson’s former counsel may have given him advice about s 94, but whether that

is so or not simply is unknown.  What I do consider can reasonably be surmised, in light of the information that is available, is that if Mr Thompson had received advice that he could make an application to avoid further disqualification from driving, he would have instructed his counsel to make such an application.   Prior to the sentencing date he had gone through an employment process with the company by whom  he  has  been  employed  for  the  past  15  years.     This  related  to  his disqualification and the risk of a further disqualification.   This led to his existing employment  being  terminated  in  February  2017.   Ability to  drive  had  been  an essential part of that employment review, both in terms of the nature of his employment (forklift driving which from time to time required him to drive on an adjacent road) and getting to and from his home.

[11]     The situation on this appeal, in light of the background that I have set out in some detail to this point, is that the options would be either to adjourn this appeal to enable the respondent to obtain advice from Mr Thompson’s former counsel and, if appropriate,  file  an  affidavit,  or  to  allow  the  appeal  on  the  grounds  that  an application  had  not  been  made  on  Mr  Thompson’s  behalf,  through  his  former counsel, under s 94.   I discussed these options with Ms Shore, for the respondent. The alternatives were considered in reasonable detail.   Ms Shore then advised me that the respondent, in all of the circumstances, did not wish to pursue its entitlement to seek a waiver of privilege and, if granted, discuss matters with the former counsel. That was a responsible course for Ms Shore to take and I am satisfied that it is an entirely appropriate concession.  In particular, the circumstances here in relation to a waiver of privilege are significantly different from those which usually arise where there are allegations of counsel error.

[12]     In all of these circumstances I am satisfied that the appeal should be allowed. Although it should be apparent, I make clear that the appeal is not being allowed because of error by the Judge.  On the basis of the material before him, there was no error by the Judge.  The appeal is being allowed for the reason that I have referred to several times – this is a case where the appellant should have an opportunity to make an application under s 94.

[13]     In my judgment it would not be appropriate for a s 94 application to be heard in this Court.  It is most appropriate that it be considered in the District Court.

[14]     When  the  matter  is  back  in  the  District  Court  the  Judge  hearing  the application must have a full sentencing discretion.  For that reason (and again not on the basis that there was any error in the original sentence) it is appropriate to quash the other parts of the sentence.  In that regard I do note that Ms Treloar advised me that the community detention sentence was cancelled last Friday and a sentence to come up for sentence if called upon within six months was substituted.  That arose for reasons I do not need to go into.  There is still the sentence of community work and if Mr Thompson has done some of that it can be taken into account in an appropriate way.

[15]     In  consequence,  the  appeal  is  allowed.     The  sentences  of  community detention,  as  subsequently varied,  and  community work,  are  quashed,  as  is  the disqualification from holding or obtaining a driver licence for one year commencing on 14 March 2018.

[16]     The matter is remitted back to the District Court for resentencing, including consideration of the intended application pursuant to s 94 of the Land Transport Act.

Woodhouse J