Waugh v Police

[2017] NZHC 1139

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2017-404-000120 [2017] NZHC 1139

BETWEEN

JAMES ROBERT WAUGH

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	29 May 2017
Appearances:	MJ Utting for Appellant D Houghton for Respondent
Judgment:	29 May 2017

JUDGMENT OF WOOLFORD J

Solicitors/Counsel: MJ Utting, Auckland Meredith Connell, Auckland

WAUGH v POLICE [2017] NZHC 1139 [29 May 2017]

Introduction

[1]      This is a somewhat unusual appeal.   The appellant, James Robert Waugh, pleaded guilty to driving while disqualified and driving with excess breath alcohol at his first appearance in a busy list in the North Shore District Court on 13 March

2017 and sought an adjournment to allow him to voluntarily obtain an assessment from Community Alcohol and Drugs Services (CADS) and to attend a Right Track programme for youthful offenders, which is to commence on 29 August 2017.

[2]      The Judge refused the adjournment and instead sentenced Mr Waugh to nine months supervision with special conditions to attend CADS and the Right Track programme, a fine of $550 together with disqualification for seven months starting on 15 May 2017, when his previous period of disqualification ended.

[3]      Mr Waugh now appeals on the basis that the Judge was wrong not to have granted him an adjournment to allow him to undertake his own rehabilitative steps and avoid the need for the Court to impose a sentence of supervision.  Mr Waugh submits in any event that the imposition of a sentence of supervision was manifestly excessive.

Appellant’s submissions

[4]      A number of disadvantages of the Judge’s refusal to grant an adjournment are identified.  First, Mr Waugh had only one previous conviction for operating a motor vehicle causing a sustained loss of traction for which he had been fined $250 and disqualified  from  driving  for  six  months  from  15  November  2016.    If,  when Mr Waugh had appeared in court  on 13 March 2017, an adjournment had been granted until after Mr Waugh had completed the Right Track programme, then he would have regained his licence on 15 May 2017, which would then have been lost for less than 12 months through disqualification when he was eventually sentenced for driving while disqualified and driving with excess breath alcohol.  However, the seven months disqualification which was imposed when he appeared in court on

13 March 2017 has been treated as cumulative on the six months disqualification imposed on 15 November 2016.  Because the cumulative period of disqualification

now exceeds 12 months, he will need to re-sit his driver’s licence, which Mr Waugh

views as a disadvantage.

[5]      Secondly, through work pressures at the Probation Service, referrals have not yet been made either to CADS or the Right Track programme.  If an adjournment had been granted Mr Waugh says that he would, in all likelihood, have been able to complete the initial four week Getting Started programme offered by CADS and to have started the next programme if it had been deemed necessary.

[6]      Thirdly, Mr Waugh submits that through undertaking the courses without the supervision of the Probation Service he would have been in a better position at the time of sentencing on these charges and would have received a lesser sentence to reflect the efforts he had made.

[7]      Finally, Mr Waugh submits that whether or not an adjournment should have been  granted, the sentence of supervision  imposed is manifestly excessive.   He submits that a first breath alcohol charge would ordinarily have been dealt with by way of a fine and disqualification.  Mr Waugh submits that he is worse off as a result of the proposal put forward by counsel for an adjournment in order to attend CADS and  the  Right  Track  programme  voluntarily  as  without  such  advice,  Mr Waugh submits that the court would have been unlikely to impose a sentence of supervision for that purpose.

[8]      Mr Waugh requests that the current sentence be set aside and the matter referred back to the North Shore District Court to permit him to undertake the proposed courses of his own volition, and then to be sentenced following that.

Analysis

[9]      The sentencing Judge, in a busy list court, did not give any reasons for declining the adjournment application.   However, whether a sentence should be adjourned is a matter of discretion.  This is clearly reflected in s 114 of the Criminal Procedure Act 2011 which provides:

114     Procedure after defendant pleads or is found guilty

(1)       If a defendant pleads guilty or is found guilty, the court may convict or deal with the defendant in any other manner authorised by law and—

(a)      adjourn the proceeding; or

(b)      sentence or otherwise deal with the defendant immediately.

[10]     Section 25 of the Sentence Act 2002 similarly provides that a court may adjourn proceedings to allow an offender to complete a rehabilitation programme, while s 10 of the Sentencing Act provides:

10Court  must  take  into  account  offer,  agreement,  response,  or measure to make amends

(1)       In sentencing or otherwise dealing with an offender the court must take into account—

…

(e)      any remedial action taken or proposed to be taken by the offender in relation to the circumstances of the offending.

…

(4)       Without limiting any other powers of a court to adjourn, in any case contemplated by this section a court may adjourn the proceedings until—

…

(e)      any remedial action referred to in subsection (1)(e) has been completed.

[11]     I am of the view, however, that Mr Waugh has not been able to demonstrate that  the  sentencing  Judge  wrongly  exercised  her  discretion  in  refusing  the application.  Looking in turn at the disadvantages of the Court’s refusal to grant an adjournment as identified by Mr Waugh, firstly, I am of the view that it was not appropriate for the Judge to order an adjournment to forestall the intended operation of the Land Transport Act 1998.   The fact that Mr Waugh may have to re-sit his driver’s licence is the ordinary consequence of reoffending while still disqualified on the earlier loss of traction charge.   Any period of disqualification on the excess breath alcohol charge is intended to be cumulative on an existing period of disqualification.

[12]     Secondly, the work pressures of the Probation Service have not been shown to have impacted on Mr Waugh’s right or ability to attend the appropriate programmes.  CADS programmes are run frequently and there is no suggestion that

Mr  Waugh  will  not  be  able  to  access  the  programmes  within  the  period  of supervision.  The next Right Track programme commences on 29 August 2017 and counsel has ensured that Mr Waugh has a place on it through his own good endeavours.

[13]     Thirdly, it is clear that the sentencing Judge did have due regard for the rehabilitative efforts of Mr Waugh and that he was sentenced on the basis that he would complete the programmes identified. The sentencing Judge stated:

[5]       I  hear  that  you  are  a  suitable  candidate  for  the  Right  Track Programme.   You have just missed out on the March intake but there is availability for the September intake, so I am going to incorporate that into your sentence.  It is a very good programme and it will enlighten you on the perils of driving whilst intoxicated and the impact that can have on you and other innocent road users.

[14]     The final issue is whether or not the sentence imposed of supervision was manifestly excessive, leaving aside the question of whether an adjournment should have been  granted.   A sentence of supervision is one of four community-based sentences in s 44 of the Sentencing Act 2002.  By virtue of s 10A it is in the same position on the hierarchy of penalties as the sentence of community work.  It is more restrictive than a fine, but less restrictive than the other community-based sentences of community detention and intensive supervision.

[15]     Section 46 provides guidance on the use of supervision:

46       Guidance on use of sentence of supervision

A court may impose a sentence of supervision only if the court is satisfied that a sentence of supervision would reduce the likelihood of further offending by the offender through the rehabilitation and reintegration of the offender.

[16]     In the absence of any indication that particular programmes were available and/or indicated as desirable by the circumstances of the offending or any pre- sentence report available to the court, I am of the view that the sentencing Judge would not have sentenced Mr Waugh to a sentence of supervision in addition to a fine and disqualification.  A fine and disqualification is a normal sentence for a first breath/alcohol  charge.    No other sentence is normally imposed unless  there are

special  circumstances.    Here,  none  were  identified.    Mr  Waugh  only  had  one previous conviction for sustained loss of traction.

[17]     It seems to me that it was only because the duty lawyer advised the court of the  availability,  in  particular,  of  the  Right  Track  programme  and  Mr  Waugh’s intention to attend the programme voluntarily that a sentence of supervision was imposed.   It must be remembered that the standard conditions of a sentence of supervision impose a number of restrictions on an offender, which go beyond the court’s intent to facilitate the attendance by Mr Waugh at a CADS programme and the Right Track programme.  Supervision is a heavier penalty than a fine and is on par with a sentence of community work.

[18]     Further, because the Right Track programme did not commence for five and half months, the sentencing Judge imposed a nine month period of supervision to ensure that the sentence of supervision did not expire before the Right Track programme was completed.  This is only three months short of the maximum period of supervision of one year.

Conclusion

[19]     In the unique circumstances of this case I am therefore of the view that the nine month sentence of supervision is manifestly excessive for a first excess breath alcohol charge.   The sentence of supervision is accordingly quashed, but all other sentences remain the same.  On the charge of driving with excess breath alcohol, the sentence of a $550 fine with court costs of $130 together with a seven month period of disqualification remains.  On the charge of driving while disqualified, the sentence of six months disqualification also remains.   The appeal is allowed only to that extent.

[20]     I  would  encourage  Mr  Waugh  to  attend  CADS  and  the  Right  Track

programme voluntarily as was his original intention.

Woolford J