Timbrell v Police

[2018] NZHC 2397

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2018-463-000076

[2018] NZHC 2397

BETWEEN

WARWICK PAUL TIMBRELL

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	29 August 2018
Appearances:	C A Gentleman for Appellant S J P Davison for Respondent
Judgment:	12 September 2018

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 12 September 2018 at 11.00 am

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

TIMBRELL v NEW ZEALAND POLICE [2018] NZHC 2397 [12 September 2018]

Introduction

[1]    Warwick Paul Timbrell pleaded guilty to one charge of driving with excess breath alcohol (third or subsequent) on 3 May 2018.1 At sentencing on 1 August 2018, Judge Bidois refused Mr Timbrell’s application for a community-based sentence under s 94 of the Land Transport Act 1998. Instead, he disqualified Mr Timbrell from holding or obtaining a driver’s licence for 12 months and one day and fined him $700 plus costs.

[2]    Mr Timbrell appeals the disqualification on the ground that the Judge took too narrow an approach to the scope of s 94 in concluding that it did not apply to        Mr Timbrell’s case.

District Court decision

[3]    Mr Timbrell was the subject of a random stop and produced a moderate breath alcohol level when tested (477). He had two previous convictions for driving with excess breath or blood alcohol.

[4]    Conviction for a third of subsequent offence of driving with excess breath alcohol carries a mandatory disqualification of 12 months and 1 day. Mr Timbrell’s counsel sought a community-based sentence under s 94 on the basis that Mr Timbrell was liable to lose his employment if disqualified. Although he was not prohibited from obtaining a limited licence, the 28-day stand-down period would still result in him losing his employment. Loss of employment would cause financial hardship.

[5]The Judge refused the application, saying:

My approach to these matters, Mr Timbrell, is that I have recently had a number of applications filed under s 94 for drink drive. You are not a recidivist disqualified driver because you have not been disqualified for some time and previous disqualifications have been complied with. In my view, the s 94 is not specifically, but particularly, aimed at those who are on the treadmill of just continuously disqualified when further disqualifications have to be imposed at the end of an expiry date of a current qualification. This is not the case. These s 94 applications are made for drink driving, third or subsequent. Every time we have one we have to go through the s 94 exercise. I think that would be wrong in principle. I have denied or refused previous s 94

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

applications for drink driving and I do not see that this is the treadmill type case that s 94 was specifically aimed at which relates to the disqualified driver.

I accept that there is discretion or that you meet the criteria, but it is a mandatory disqualification. I see no reason for me not to impose the mandatory disqualification no matter what the consequences are.

Scope of s 94

[6]    Section 94 of the Land Transport Act 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 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).]

[7]    There are some cases, Maeva v Police,2 Wilson v Police3 and Parata v Police,4 which treat s 94 as being directed towards the recidivist offender, with departure from the usual sentence of disqualification only justified where it would afford an opportunity for the offender to break the cycle of circumstances that led to recidivist offending.

[8]    Those decisions are, however, at variance with a long line of cases indicating that the scope of s 94 is not so narrow. In Jukes v Police Tipping J said of the predecessor provision to s 94 (s 30AC Transport Act 1962) that:5

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 occasions 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 the section was that it was designed to get people away from a continual wheel of offending but the section on its

2      Maeva v Police High Court Auckland CRI 2010-404-402, 11 March 2011 at [30].

3      Wilson v Police [2014] NZHC 3028.

4      Parata v Police [2016] NZHC 3026.

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

terms is not so circumscribed and I am satisfied that there is jurisdiction to exercise the powers under s 30AC …

… s 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.

[9]Asher J cited Jukes v Police in the 2009 decision Emani v Police, noting:6

The [s 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.

[10]   In his 2012 decision Beeston v Police, cited by the parties to the present appeals, Woodhouse J also held that s 94 is not limited to those who are on an “endless cycle of disqualification”.7

[11]   In the 2013 decision Police v Body, Mallon J cited Beeston and Jukes and commented:8

It is well understood that it may be inappropriate to order disqualification where a person is caught in a cycle of offending of driving while disqualified for which continued extensions of disqualification orders are imposed. Imposing a community-based sentence can break that cycle. But the section is intended to apply not just to people who may be caught in a cycle of disqualified driving offending but to others who meet the criteria in the section. For example, the public interest in a person maintaining their employment may make a further period of disqualification inappropriate.

(footnotes omitted)

[12]   Police v Body was cited with approval in Wadsworth v Police, where Wylie J held that:9

… it is clear from the section, and the courts have held, that s 94 is not intended to apply only to people who may be caught in a cycle of driving while disqualified, but also to others who meet the criteria in the section. The section is capable of applying to any person who has at least one previous disqualification, unless s 94(4) applies.

(footnotes omitted)

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

7      Beeston v Police [2012] NZHC 1064 at [14].

8      Police v Body [2013] NZHC 1586 at [5].

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

[13]   I consider that the wider interpretation properly reflects both the intention and the wording of the s94.

Appeal

[14]   It is not entirely clear whether the Judge in this case considered that s 94 is limited to those trapped in a cycle of continuing disqualification or not; his decision could also be interpreted as meaning that s 94 is usually but not exclusively applied in cases of recidivist driving while disqualified. However, given that the Judge’s approach is not clear and the fact that Mr Timbrell has been able to produce a letter from his employer, which was not available in the District Court, I intend to consider the matter afresh.

[15]   The offence to which Mr Timbrell pleaded guilty was his third such conviction. The two previous convictions had been entered in 2003 and 1994. On each of those occasions Mr Timbrell had been disqualified for six months. The ground advanced as justifying an order under s 94 is that Mr Timbrell needs his licence for work and even the stand-down period of 28 days under the limited licence regime would result in the loss of his employment.

[16]   Mr Timbrell provided an affidavit in support of his appeal. He is 66 years old and lives in Kawerau. He is employed as a mower tractor driver for a company in Opotoki. He drives to Opotiki where he gets the tractor and transports it from his employer’s yard to a forestry block. His job is to open up roads for use by forestry workers and their vehicles. He works on his own. On work days he usually leaves  the tractor in the forest and drives between there and his home. At the end of the week he returns the  tractor  to  Opotiki.  A  letter  from  his  employer  confirms  that  if Mr Timbrell were to lose his licence there would be no employment opportunities with the company.

[17]   Mr Timbrell has mortgage outgoings of $600 per fortnight, together with other normal outgoings. He says that even the loss of income for a month will cause his family to struggle.

[18]   In considering the application of s 94 to this case, I note the long gap in     Mr Timbrell’s offending, the fact that the offending did not involve bad driving or danger to the public and the public interest that is served in keeping someone in employment. In these circumstances, I consider that an order for a community based sentence under s 94 is appropriate.

Result

[19]   The appeal against sentence is allowed, to the extent that the sentence of disqualification is quashed. I remit the matter to the District Court for re-sentencing, however, because I do not have the information needed to identify the appropriate conditions for a community based sentence.

P Courtney J