Velas v Police

[2017] NZHC 785

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CRI-2017-404-000013

[2017] NZHC 785

IN THE MATTER OF

an appeal against sentence

BETWEEN

IRYNA VELAS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	26 April 2017
Counsel:	P T Eastwood for the Appellant T C Clark for the Respondent
Judgment:	26 April 2017

(ORAL) JUDGMENT OF EDWARDS J

VELAS v POLICE [2017] NZHC 785 [26 April 2017]

Counsel:     P T Eastwood, Auckland

Solicitors:    Meredith Connell, Auckland

Introduction

[1]    Ms Velas pleaded guilty to one charge of refusing to give a blood specimen.1 She was sentenced to a six month disqualification and a $600 fine (together with court costs of $130) on 17 January 2017.2

[2]    Ms Velas appeals the disqualification element of her sentence on the grounds that Judge Glubb erred by not substituting the disqualification with a community- based sentence pursuant to s 94 of the Land Transport Act 1998.

The offending

[3]    In the early afternoon of 28 October 2015, Ms Velas parked her vehicle in a private residence. She was not known to the occupants who called the police to the scene.

[4]    Ms Velas exhibited signs of recent alcohol consumption and was transported back to the police station. She refused to provide an evidential breath sample when requested to do so by police, but 10 minutes later consented to providing a blood sample and a nurse was called. However, Ms Velas subsequently refused to provide the blood sample and, despite being warned of the consequences of such a refusal, maintained that position.

[5]    The summary of facts records Ms Velas as saying that she had been drinking that evening. Ms Velas pleaded guilty to that summary of facts. However, her counsel submits this morning that Ms Velas denies that she was intoxicated and says her odd behaviour that evening was due to a diabetic condition, although, as he candidly admits, there is no evidence to support that position.

1      Land Transport Act 1998, s 60(1)(b), maximum penalty three months’ imprisonment or a fine not exceeding $4,500, together with a six month disqualification.

2      New Zealand Police v Velas [2017] NZDC 1479.

[6]    Ms Velas has two prior convictions arising out of a single event on 12 March 2002. She was convicted of one charge of driving with excess blood alcohol content and disqualified from driving for nine months and fined $800. She was also convicted and discharged for operating a vehicle carelessly at this time.

District Court decision

[7]    Ms Velas sought the imposition of a community-based sentence in lieu of a period of disqualification pursuant to s 94 of the Land Transport Act.

[8]    The District Court Judge noted that the police took a neutral stance on the imposition of disqualification. However, he considered there was a difficulty in imposing a community-based sentence as he was not satisfied that Ms Velas was in a position to perform any community work as necessary.

[9]    Accordingly, the Judge declined the application pursuant to s 94 and convicted and fined Ms Velas the sum of $600 with court costs in the sum of $130. The period of disqualification was six months which is the minimum disqualification period allowed for under the Act.

Grounds of appeal

[10]   Ms Velas appeals the disqualification element of her sentence on the grounds that the District Court Judge erred by not substituting the disqualification with a community-based sentence pursuant to s 94.

[11]   Ms Velas has provided a draft affidavit in support of the appeal in which she states she is a sickness beneficiary and caregiver to her 78 year old mother. She is also a caregiver to her 26 year old son who has mental health problems. In that capacity she states that she has to drive herself and her mother to the doctor several times a week and to North Shore and Auckland Hospital and specialists both for herself and her son on occasion. Ms Velas also states in the draft affidavit that she has arthritis which affects both her hips and she also has restricted mobility. She indicates she is booked in for surgery later in the year.

[12]   Ms Velas indicates that she is willing to undertake community work and is confident she could find work at a library or local community organisation where she could be of help despite her disabilities.

[13]   Counsel for Ms Velas indicates this morning that an application for a limited licence has been prepared but has not yet been filed. The police have indicated that they will not oppose such an application. Despite the fact that this appeal was adjourned in February to allow that application to be made, it has still not been finalised nor filed. Counsel indicates he has had difficulty obtaining instructions from Ms Velas and she is reluctant to pursue the application for a limited licence.

Analysis

[14]Section 94 of the Land Transport Act 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.

(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

(b)the offender is prohibited from applying for a limited licence under section 103(2)(a), (b), or (d).

[15]   In Keates v New Zealand Police, Lang J stated that before a Judge can impose a community-based sentence he or she must be satisfied both that a further period of disqualification is inappropriate and that a community-based sentence is appropriate. His Honour further stated that those determinations depended on the weight that the Judge gives to the four factors listed in s 94(1)(b) which will vary according to the circumstances of the case.3

[16]   In that case Lang J considered an appeal from the refusal to impose a community-based sentence where the offender was pregnant with her baby due during

3      Keates v New Zealand Police HC AK CRI-2010-404-269, 21 September 2010 at [5].

the period of disqualification. Although the Judge noted that the refusal of the application undoubtedly produced harsh consequences for Ms Keates, other factors noted by the District Court Judge weighed against substitution of a community-based sentence. Overall, whilst expressing considerable sympathy for the predicament in which Ms Keates found herself, Lang J was unable to say that the Judge had exercised his discretion against Ms Keates in an erroneous manner.

[17]   This morning, counsel for the appellant filed 24 pages of submissions and supporting authorities concerning applications under s 94. What is evident from the cases reviewed by the appellant is that the enquiry is a case specific one and whether an application under s 94 will be granted depends on the particular circumstances of the case.

[18]   In this case there is no doubt that a period of disqualification will cause real difficulties for Ms Velas in caring for herself, her son and her elderly mother. Being unable to drive to various hospital appointments will cause serious inconvenience to all members of Ms Velas’ family. Those are circumstances which militate against a period of disqualification.

[19]   However, Ms Velas’ commitment to her mother and son, and her own health needs, make a community-based sentence inappropriate in the circumstances. As detailed in her draft affidavit, those commitments are time intensive. Ms Velas’ own health issues also mean a community based sentence may also be difficult to complete, as her counsel accepts. It is no doubt for this reason that the Judge found himself in a quandary when dealing with the application.

[20]   Furthermore, Ms Velas’ admission that she had been drinking on the evening in question, as recorded in the summary of facts, also raises concerns about the risk to public safety if Ms Velas is not disqualified from driving. The fact that Parliament has chosen a period of disqualification as a sanction for refusing to give a blood specimen reflects the inherent risk to public safety which flows from offending of that kind. Those concerns weigh in favour of a period of disqualification.

[21]   The District Court Judge was clearly of the view that Ms Velas’ personal circumstances made the imposition of a community-based sentence inappropriate. That is one of the factors which a Judge must be satisfied about before granting the   s 94 application. Counsel for the appellant has been unable to identify any error in that determination. Whilst I have sympathy for Ms Velas’ position, I do not consider there to be a basis upon which to interfere with the Judge’s decision.

Result

[22]The appeal is dismissed.

Edwards J