Wilson v Police
[2014] NZHC 3028
•1 December 2014
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
CRI-2014-454-12 [2014] NZHC 3028
BETWEEN NICKY LEE WILSON
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 19 November 2014 Counsel:
J B McVay and G Gimblett for appellant
N J Wynne for respondentJudgment:
1 December 2014
RESERVED JUDGMENT OF DOBSON J
[1] On 27 August 2014, Mr Wilson was sentenced by Judge G M Ross in the District Court at Levin on his 17th conviction for driving whilst disqualified. He was sentenced to seven months’ imprisonment and disqualified from holding or obtaining a driver’s licence for a further period of 12 months from 1 December 2014 when the period of an earlier disqualification will expire.
[2] Mr Wilson has appealed that sentence, principally on the ground that the Judge was wrong to reject the opportunity available to him to use s 94 of the Land Transport Act 1998 (the Act). That section authorises the Court, in certain circumstances, to substitute a community-based sentence and not impose the otherwise mandatory disqualification from holding a driver’s licence.
[3] Mr Wilson was stopped whilst driving a vehicle in Levin at 9.30am on a Saturday morning after he had failed to give way to a young girl on a pedestrian crossing. He was a disqualified driver at the time and was charged accordingly. No
other charge was laid in relation to his driving conduct at the time. Mr Wilson’s
WILSON v POLICE [2014] NZHC 3028 [1 December 2014]
criminal record reflects only a small number of other driving offences, relative to the
17 convictions for driving whilst disqualified that he has accumulated at the age of
30. There is, in addition, something of a pattern of failing to comply with Court orders and breaches of a protection order, but little else.
[4] The pre-sentence report advised that Mr Wilson suffered a head injury when he was eight years old, which the Judge accepted had an effect on his cognitive ability. The report stated that Mr Wilson knew that he was doing wrong, but the Judge accepted that whilst he appreciated that, there was a lack of mental commitment to stop him going on and driving. The pre-sentence report included the following:
Mr Wilson is assessed as being at high risk of further offending and at medium risk of harm to the community. He is identified as a recidivist offender with a low level of motivation to address his offending behaviours. On previous sentences Mr Wilson has been offered treatment with the Departmental Psychologist. Community Probation records show that Mr Wilson has initially engaged in the intervention then later disengages with no progress made. Mr Wilson does not present as motivated to address his cognitive distortions.
[5] Mr Gimblett submitted that the Judge was overwhelmed by the number of prior convictions for driving whilst disqualified, and failed to look past that feature when other considerations justified dealing with Mr Wilson under s 94.
[6] Section 94 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] The Judge did state that the problem with applying s 94 was that this was Mr Wilson’s 17th conviction for driving whilst disqualified. That history was seen by the Judge as reflecting a continuing and on-going disobedience with Court orders,
with the driving on this occasion occurring only half way through the period of driver licence disqualification that was then in force. The Judge was concerned that there be an effective deterrent. Because Mr Wilson had been sentenced to
12 months’ imprisonment for this offending in 2010, with a subsequent sentence of community work and disqualification, the Judge was concerned that any sentence lighter than imprisonment would give the wrong impression.
[8] I am not satisfied that the Judge placed undue emphasis on the number of prior convictions for disqualified driving when that component of his reasons is put into context with the remaining reasons. The appeal is to be decided under s 250 of the Criminal Procedure Act 2011, which requires me to allow the appeal if I am satisfied that, for any reason, there is an error in the sentence imposed on conviction, and that a different sentence should be imposed. Even although I am not persuaded that there was a material error in the extent of the emphasis placed by the Judge on the number of prior convictions, given that my assessment of that aspect of his reasons takes into account the influence of the remaining considerations cited by the sentencing Judge, it is appropriate in the circumstances of this appeal to put that preliminary conclusion to one side, and assess the remaining considerations to determine whether a different sentence should be imposed.
[9] Sentencings of recidivist disqualified drivers who insist on driving give rise to a number of considerations which are likely to support different sentencing solutions, with considerations that need to be weighed reflecting all the circumstances of the particular offender.
[10] The sentencing consideration consistent with the application of s 94 is the compassionate appreciation that recidivist drivers who cannot restrain themselves from driving throughout periods of disqualification may deserve an opportunity to break the chain of circumstances causing their offending, namely on-going periods of disqualification. The rationale for the predecessor of s 941 was described by
Hardie Boys J in 1989 in the following terms:2
1 Transport Act 1962, s 30AC.
2 Mitchell v Police (1989) 5 CRNZ 190 (HC) at 193.
Section 30AC marks a clear shift in the emphasis of penal policy for offences of this kind. Whereas earlier the emphasis was on insisting on compliance with Court orders and punishing those who flouted them in part with longer and longer terms of disqualification, now there is a recognition that there […] are those for whom the need to drive is almost addictive and that these people will keep offending, no matter what punishment is imposed. The purpose of the amendment is to bring the pattern of offending to an end by removing one of its causes, namely, the continued extension of disqualification orders. But it enables this to be done only if there is a community based sentence.
[11] Although a sentence that is effectively determined by the number of prior convictions for driving whilst disqualified can be criticised as “mechanical” and thereby determined in error, it is nonetheless principled to respond to recidivist offending by recognising that the number of prior convictions is an aggravating feature because, despite whatever penalties have been imposed, this form of illegal conduct has continued. In addition, disobedience of Court orders warrants a sanction. In Te Haara v Police, Winkelmann J cited an earlier observation of
Fisher J as follows:3
The fact that an offender is driving while disqualified attracts punishment not because there is any fresh dangerous conduct but rather because the Court’s sanctions are meaningless unless they are obeyed. A penalty is needed to ensure that the earlier sentence is carried out and to maintain respect for law but not because of any fresh fears for the safety of the public.
[12] Section 94 should only justify a variation from the norm where the personal circumstances of the offender, and in particular the rehabilitative prospects, justify affording the offender an opportunity to break the cycle of circumstances contributing to the recidivist offending.
[13] There are two factors in favour of affording Mr Wilson the chance to break the cycle by not imposing a further period of disqualification. First, the cognitive difficulties that are recognised as making it more difficult for him to refrain from driving than is ordinarily the case, and secondly the relatively innocuous nature of the total history of his driving convictions when assessed in light of the 17 previous
convictions of this type.
3 Te Haara v Police HC Auckland CRI-2004-404-370, 5 October 2004 at [18], citing Lambert v
Police HC Rotorua AP62/90, 11 October 1990.
[14] On this occasion, Mr Wilson has not demonstrated any commitment to change his behaviour, whether on his own or with the assistance of others, so as to prevent the same type of offending in the future. In the absence of any such rehabilitative initiative, I would not be persuaded to alter the sentence by utilising s 94.
[15] Other considerations, although not decisive, also count against the substitution of a community-based sentence which would be necessary to invoke s 94. The pre-sentence report characterises Mr Wilson’s ability to comply with a community-based sentence as questionable. Although he recently completed sentences of intensive supervision and community work, his compliance with those sentences was less than satisfactory.
[16] Accordingly, whilst the dominant reliance placed by the Judge on the mechanical effect of the number of prior convictions for the same offence can be criticised, my review of the sentencing process leads me to the same conclusion.
[17] Accordingly, the appeal is dismissed.
Dobson J
Solicitors:
Paul Surridge, Porirua for appellant
Crown Solicitor, Palmerston North for respondent
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