Whyman v Police
[2014] NZHC 2889
•20 November 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2014-404-316 [2014] NZHC 2889
BETWEEN MARK FREDERICK WHYMAN
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 17 November 2014 Appearances:
K Harding for Appellant
J Carlyon for RespondentJudgment:
20 November 2014
JUDGMENT OF LANG J [on appeal against sentence]
This judgment was delivered by me on 20 November 2014 at 3 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
WHYMAN v NEW ZEALAND POLICE [2014] NZHC 2889 [20 November 2014]
[1] Mr Whyman pleaded guilty in the District Court to a charge of driving a motor vehicle whilst his licence was suspended.1 On 28 August 2014, Judge Bergseng sentenced Mr Whyman to 80 hours community work and disqualified him from driving for a period of one year and one day.2
[2] Mr Whyman appeals to this Court against the order for disqualification. He contends that the Judge ought to have exercised his discretion under s 94 of the Land Transport Act 1998 (the Act) to sentence him to a community-based sentence rather than a period of disqualification.
The offending
[3] Mr Whyman was suspended from driving from 5 May 2014 until 4 August
2014. The suspension occurred because he had incurred excess demerit points as a result of infringement notices issued against him in respect of speeding offences.
[4] At 2.20 am on 14 May 2014, a police patrol vehicle stopped Mr Whyman whilst he was driving his motor vehicle in Henderson. He immediately acknowledged that his licence was suspended.
[5] Mr Whyman explained his offending on the basis that it was driven by necessity. His partner suffers from stomach cancer, and drinks alcohol to deal with this. At approximately 2 am on 14 May 2014, she awoke after having consumed alcohol earlier in the evening. An argument ensued, during which Mr Whyman’s partner attacked him. Mr Whyman then decided to leave the address and to spend the remainder of the night at a friend’s house. He decided to drive because he was concerned that if he left on foot his partner may drive after him when she was in no
fit state to do so. He was stopped by the police patrol en route to his friend’s house.
1 Land Transport Act 1998, s 32(1)(c) and 32(4).
2 New Zealand Police v Whyman DC Waitakere CRI-2014-090-2468, 28 August 2014.
Relevant principles: s 94 of the Land Transport Act 1998
[6] Section 94 of the 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).
[7] There is now a large body of case law regarding the manner in which the section is to be applied. Although s 94 was originally enacted to assist recidivist offenders to break a cycle of repeatedly driving whilst disqualified or suspended, it is now well recognised that the Court may exercise its discretion under s 94 in a wide variety of situations. The fact that an offender may lose his or her employment as a result of a further period of disqualification is often a significant factor in the
exercise of the discretion.3
[8] This Court has pointed out, however, that care needs to be taken in exercising the discretion. There is a significant public interest in ensuring that persons who drive whilst disqualified or whilst their licence is suspended receive a sentence that appropriately reflects their wrongdoing. If the discretion under s 94 is exercised too readily, it may give rise to a concern that the effective sanction of mandatory disqualification will be weakened.4
[9] This Court has described the approach to be taken under s 94 as follows:5
[5] Before a Judge can impose a community-based sentence, he or she must be satisfied both that a further period of disqualification is
3 See Prasad v Police [2014] NZHC 219; Apiti v New Zealand Police [2013] NZHC 2349; and Yu v New Zealand Police HC Auckland CRI-2006-404-273, 10 November 2006 at [24]; and Jukes v Police HC Christchurch AP228/94, 5 October 1994.
4 Yu v New Zealand Police, above n 3 at [28]-[29].
5 Keates v New Zealand Police HC Auckland CRI-2010-404-269, 21 September 2010.
inappropriate and that a community-based sentence is appropriate. Those determinations depend upon the weight that the Judge gives to the four factors listed in s 94(1)(b). The weight to be given to each of those factors will vary according to the circumstances of the case. If the Judge decides both ultimate issues in favour of the applicant, the discretion may be exercised in favour of the applicant. If the Judge decides either of those issues against the applicant, there will be no jurisdiction to grant the application.
[6] The power to make an order under s 94 is therefore, the exercise of a statutory discretion. It is for the Judge who decides the application to weigh up the competing interests and to determine the manner in which the discretion should be exercised.
Approach on appeal
[10] As will already apparent from the passage set out above, a decision made under s 94 is the exercise of a statutory discretion. An appellate court may therefore only disturb the decision in limited circumstances. The appellant will need to demonstrate either that the Judge who made the decision erred in principle, or that the decision was plainly wrong. An appellate court will also be justified in disturbing the decision where the Judge who made it has failed to have regard to a
material consideration or has taken into account an irrelevant consideration.6
The Judge’s decision
[11] The Judge recorded that Mr Whyman sought a community based sentence because his partner was unwell, he wanted to get his life back on track and provide a better life for her and her daughter. He sought to do this by gaining employment so as to alleviate many of the stressors in their lives. By the time of sentencing, Mr Whyman had started his own business as a graphic designer.
[12] The Judge noted that s 94 required the Court to consider the circumstances of the case and the offender, as well as the effectiveness or otherwise or any previous order for disqualification and the likely effect on the offender of a further order of disqualification. The final factor to be considered is to the interests of the public.
[13] The Judge said he had “no great difficulty with the first three considerations”.7 He noted that Mr Whyman had a reason for driving at the time of the offending. By this, I take the Judge to have accepted that Mr Whyman had tendered a reasonable explanation for driving notwithstanding the fact that his licence was suspended. The Judge then summarised Mr Whyman’s personal circumstances, and noted that he has previously been the subject of several orders for
disqualification or suspension. He also accepted that the likely effect on Mr
Whyman of a future period of disqualification would be significant.
[14] The Judge considered, however, that the interests of the public militated against the imposition of a community-based sentence. The Judge was concerned that Mr Whyman has now been the subject of 22 infringement notices issued for speeding offences. These included four incidents of speeding in January 2014, two in 2013 and two in 2011. The Judge observed that Mr Whyman did not appear to have addressed his tendency to offend by speeding, and that this was an obvious road safety issue. This led the Judge to conclude that it would not be in the interests of the public for a community-based sentence to be imposed under s 94.
[15] Having reached that conclusion, the Judge observed that Mr Whyman appeared to be eligible to apply for a limited licence, and that a more limited driving regime may be appropriate. He also urged Mr Whyman to consider undertaking some form of driving training that might go some way towards addressing the road safety issue that he presents.
Grounds of appeal
[16] Ms Harding acknowledges that the Judge was entitled to take into account Mr Whyman’s history of being issued with infringement notices for speeding. She submits, however, that other elements of the public interest strongly suggested that a community-based sentence under s 94 was appropriate. In particular, she emphasises that Mr Whyman has now set up business as a graphic designer, and this requires him to travel to visit clients. She contends the Judge failed to take this factor into account when considering the public interest.
[17] Ms Harding also points out that the Judge was mistaken when he observed that Mr Whyman appeared to be eligible to apply for a limited licence. Mr Whyman is in fact precluded from applying for a limited licence, because he has pleaded guilty to a charge under s 32(1)(c) of the Act. Section 103(2)(c) of the Act prohibits offenders who have been convicted under s 32(1) from applying for a limited licence.
[18] Ms Harding also relies on the hardship that Mr Whyman will suffer if he is disqualified from driving for the next year. In her written submissions, she summarises the purposes for which Mr Whyman needs to be able to drive during that period as follows:
(a) To have access to his children;
(b) To pick his 5 year old child up from school to uplift for access and to return him to his mother after an access outing to the shops, park and for other pro-social activities;
(c) To uplift his 12 year old son from [R] to bring him to Auckland for access weekends and for Christmas Holidays so that he may also spend time with his half brothers and sisters so that they can build and maintain sibling relationships which is important for his son’s social development;
(d) To babysit his grandchildren whose parents work long hours in low paying jobs who cannot afford child care. Babysitting appointments can be on short notice due to the fact that one of his grandson’s mothers works a number of jobs including evening shifts;
(e) To attend on his parents at their address and to be able to drive them to medical appointments, help them with shopping, drive to mow their lawns, do their garden and their household maintenance;
(f) To take his children to see his parents so they could have a relationship with their grandparents;
(g) To get shopping and supplies for the household;
(h) To drive his partner who has stomach cancer to medical appointments when she is unwell and to assist his partner with her 7 year old disabled daughter as required;
(i) To drive himself to and from his own medical appointments with his
GP as he is suffering from depression; and
(j) To drive for work purposes for self-employment as a graphic designer.
Decision
[19] I accept Ms Carlyon’s submission for the respondent that, in broad terms, the Judge evaluated all of the factors set out in s 94(1)(b). The weight to be given to those factors would ordinarily be a matter for him, and his assessment would not be amenable to review on appeal. In considering whether the Judge committed any reviewable error, however, two aspects of his decision are relevant. First, although the Judge referred to the fact that Mr Whyman had now started his own business, he did so when considering Mr Whyman’s circumstances rather than the public interest. He did not reconsider that issue in the context of whether it was in the public interest that Mr Whyman should be permitted to continue to work given the fact that he had previously been unemployed and therefore a burden on the State.
[20] Secondly, the Judge was clearly under the misapprehension that Mr Whyman was eligible to apply for a limited licence. Although the Judge made this observation after reaching his ultimate conclusion, the fact that he considered it sufficiently important to mention means there is a risk that it may have influenced his decision not to impose a community-based sentence.
[21] These factors lead me to consider the matter afresh. Like the Judge, I proceed on the basis that the first three factors listed in s 94(1)(b) favour the imposition of a community-based sentence. The fact that the Judge appears to have accepted that Mr Whyman had a valid reason for driving on the night of the offence is of particular significance in this context.
[22] I consider the other two factors to be largely neutral. The personal hardship Mr Whyman and his family will undoubtedly suffer through a further period of disqualification does not appear to be greater than will often be the case when a lengthy period of disqualification is imposed. Such an order will inevitably inhibit the offender in meeting family responsibilities, and will thereby cause considerable disruption to family life. Depending on the nature of the offender’s employment, it is also likely to significantly limit the ability to work and to enjoy social and recreational activities.
[23] Parliament must be taken to have been aware of those consequences, however, when it elected to impose a mandatory period of disqualification for offenders who choose to drive whilst their licence is suspended. Parliament obviously viewed a lengthy period of disqualification as providing an appropriate form of sanction for such offending notwithstanding the consequences it would inevitably produce.
[24] The effectiveness of previous disqualifications is also a matter of little moment in the present case. Mr Whyman has two previous convictions for driving whilst disqualified, one in 1979 and one in 2008. He has two convictions for driving whilst suspended, one in 2005 and the other in 2007. He was also convicted in 2005 on a charge of failing to comply with a direction that he not drive whilst his licence was suspended. Viewed overall, however, Mr Whyman does not present as a recidivist offender seeking to use a community-based sentence under s 94 to break a cycle of offending.
[25] As a result, the circumstances of the offending tilt the scales slightly in favour of a community-based sentence up to the point where the issue of the public interest is considered. In the present case this involves weighing the public interest in Mr Whyman being permitted to continue to work against the public safety issue arising out of his previous history of speeding.
[26] Mr Whyman’s traffic history is obviously a matter of sufficient concern to amount to an issue of public interest. As the Judge observed, Mr Whyman has received no fewer than 22 infringement notices, all of which relate to speeding offences. Several of these have incurred 50 demerit points, thereby indicating that Mr Whyman must have been travelling at least 35 kilometres above the posted speed limit at the time of the offence. Persistent speeding gives rise to a road safety issue that must be a matter of public interest.
[27] I also accept Ms Carlyon’s submission that Mr Whyman remains at risk of speeding in the future. His past history indicates that that is so, notwithstanding the fact that he has now completed a defensive driving course. Mr Whyman will no doubt be aware, however, that if he continues to receive infringement notices for
speeding, he will again be suspended from driving. To that extent he is the master of his own destiny.
[28] Importantly, however, the present offending did not involve any element of speeding or wrongdoing beyond the fact that Mr Whyman elected to drive whilst his licence was suspended. Had the offending been discovered after Mr Whyman was stopped for speeding or committing some other type of traffic offence, there could be no dispute that the public interest would require the mandatory period of disqualification to be imposed. Given the absence of any additional element to the present offending, however, this aspect of the public interest assumes slightly less importance than might otherwise be the case.
[29] Three factors persuade me that the scales remain tipped in favour of a community-based sentence when the public interest is taken into account. The first is that it is clearly in the public interest for Mr Whyman to be able to continue working so that he is not a burden on the State. Allied to this is the fact that Mr Whyman is unable to apply for a limited licence. The ability to obtain a limited licence may have been a means of ameliorating the impact that the loss of his licence would have on Mr Whyman’s ability to continue working. The third factor arises out of the absence of aggravating factors in relation to the present offending. This lessens the importance in the present context of Mr Whyman’s previous traffic history.
[30] It follows that I consider it would be inappropriate to impose a further period of disqualification, and appropriate to impose a community-based sentence instead.
Result
[31] The appeal is allowed and the order for disqualification is quashed. The existing sentence of community work is also quashed, and a new sentence of 200
hours community work is imposed in its place.
Lang J
Solicitors:
Crown Solicitor, Auckland
Counsel:
K Harding
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