Witana v Police
[2014] NZHC 1963
•20 August 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2014-404-000076 [2014] NZHC 1963
BETWEEN EZEKIEL WITANA
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 28 July 2014 Counsel:
J C Harder for the Appellant
R N Thompson for the RespondentJudgment:
20 August 2014
JUDGMENT OF DUFFY J [re Appeal Against Sentence]
This judgment was delivered by Justice Duffy on 20 August 2014 at 12.00 pm, pursuant to
r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
Solicitors: Public Defence Service, Auckland
Meredith Connell, Auckland
WITANA v POLICE [2014] NZHC 1963 [20 August 2014]
[1] This is an appeal against a refusal of Judge Harvey on 13 February 2014 to exercise his discretion under s 94 of the Land Transport Act 1998 to impose a community-based sentence, rather than disqualify the appellant from driving.
[2] The appellant, Mr Witana, was convicted of the charge of aggravated driving while disqualified. This was the appellant’s third incident of driving while disqualified. Judge Harvey sentenced the appellant to 80 hours of community work and disqualified him from driving for a year.
Facts
[3] The appellant was first disqualified from driving, following his conviction for driving with an excess breath/blood alcohol level on 11 March 2011. On that occasion he was disqualified from driving for a period of six months from 11 March
2011. He completed this period of disqualification without incident.
[4] On 9 October 2012, following his second conviction for driving with an excess breath/blood alcohol level, he was disqualified from driving for a period of seven months. This time things did not go so well. On 15 March 2013, which was within the period of disqualification, he was apprehended driving a motor vehicle. On the charge of driving while disqualified, he was fined $300, together with Court costs, and disqualified from driving for a period of six months, commencing on 8 May 2013. The disqualification commenced at this time because it had to follow on from the expiry of the earlier period of disqualification.
[5] On 15 August 2013, the appellant was convicted again of driving while disqualified. On this occasion, his driving was otherwise innocuous. He was sentenced to 40 hours’ community work and disqualified from driving for six months from 8 November 2013.
[6] Before the second disqualification for disqualified driving had even commenced, on 19 October 2013, the appellant was again apprehended driving a motor vehicle. This led to the offence that is the subject of this appeal. Once again, his driving was otherwise innocuous. The 12 month period of disqualification that
was imposed for this offending commenced on 15 May 2014. It will not expire until
May 2015.
[7] The appellant was born on 6 December 1989. He would have been 23 years old when the last offence of driving while disqualified was committed.
District Court sentencing
[8] At [3] of the sentencing notes, Judge Harvey recognised that the appellant had two relatively proximate convictions for driving while disqualified. Nonetheless, the Judge decided that the appellant was not someone who appeared to be a classic case for breaking the cycle of driving while disqualified: see [8]. Instead, the Judge described the appellant as someone who on “two occasions … has chosen to drive” while disqualified (also at [8]).
[9] The Judge rejected the appellant’s submissions for not imposing a further period of disqualification on the basis that orders for disqualification are made for a purpose and their contravention demonstrates (at [10]):
a blatant disregard for the law and for orders of the Court and merely emphasises that fact that they are not responsible enough to hold a driver’s licence …
[10] At [11], the Judge went on to consider whether a further period of disqualification would be an “effective sentence”. The Judge rejected the idea that an effective sentence is one that the offender will abide by. Then, at [12], he reiterated his view that the two incidents of driving while disqualified did not amount to the appellant being in a cycle. So he refused to exercise the discretion under s 94 and disqualified the appellant. A sentence of 80 hours of community work was also imposed.
[11] Earlier in the sentencing notes, at [5], Judge Harvey noted that the s 94 criteria are widely framed and enable the Judge to take into account anything that may be relevant in substituting disqualification for a community-based sentence. He further noted that two judges may reach different views on whether a community-
based sentence should be substituted and that will not necessarily give rise to an error.
Appellant’s submissions
[12] The first point on appeal is that this was the appellant’s third incident of driving while disqualified, but, at [12], it seems as if Judge Harvey was under the misapprehension that it was only the appellant’s second incident.
[13] The appellant submits the Judge was factually wrong to conclude that Mr Witana was not in a cycle of disqualification. Further, the appellant submits that Judge Harvey was legally wrong in his interpretation of s 94. In this regard, the appellant submits that s 94 is not so circumscribed as to limit its application only to offenders who are in a cycle of disqualification. Here, the appellant relies on Beetson v Police [2012] NZHC 1064 where the High Court confirmed that restricting the exercise of s 94 only to offenders trapped in a cycle of driving while disqualified is an error for appellate purposes. To like effect is Yu v Police HC Auckland CRI-2006-404-273, 10 November 2006 where Asher J exercised his discretion in respect of an offender facing only his second offence of driving while disqualified.
[14] At [12], Asher J referred to the statutory conditions on the exercise of the discretion in s 94 being cumulative. The appellant contends that he meets all the conditions in s 94. He submits that he is a suitable candidate for a favourable discretion under s 94 because there was no driving fault attached to his driving that would engage public safety.
[15] The appellant also submits that whilst his challenge to the exercise of the discretion under s 94 must be approached as an appeal against the exercise of a discretion, Judge Harvey’s assessment of the factual circumstances and whether they satisfied the conditions in s 94 should be approached in light of the general appeal principles in Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141. Here the appellant relies on Heke v R [2010] NZCA 476 at [17]–[19].
[16] The respondent submits that Judge Harvey was not plainly wrong to find that the appellant was not in a cycle of disqualification. In Tailor v Police HC Auckland CRI-2009-404-322, 7 December 2009, Lang J noted that the offender was not a recidivist offender trapped in a cycle as he only had two previous offences.
[17] The respondent submits that Judge Harvey did not decline to exercise his discretion under s 94 solely because he found the appellant was not in a cycle of disqualification. The respondent contends that it is well established that s 94 has a wider ambit than those caught in an endless cycle of disqualification: see Beetson v Police at [14]. The respondent argues that the reason it may appear that Judge Harvey relied on the finding that the appellant was not in a cycle of disqualification was because that was the main reason put forward supporting his application by his defence counsel. The respondent submits, therefore, that Judge Harvey did not apply incorrect sentencing purposes and asserts that in fact the Judge applied four of the relevant principles of the Sentencing Act 2002.
Approach on appeal
[18] The approach on appeal from a District Court Judge’s exercise of a discretion under s 94 of the Land Transport Act is set out by Lang J in Keates v Police HC Auckland CRI-2010-404-269, 21 September 2010, at [5]–[8]:
[5] 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. 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.
[7] An appellate court may only disturb the exercise of a judicial discretion in limited circumstances. It may interfere if the appellant can demonstrate either that the Judge in the Court below erred in principle in exercising his or her discretion, or that the ultimate decision was plainly wrong. The appellate court may also interfere where the Judge in the Court below has failed to have regard to a material consideration or has taken into account an irrelevant consideration: Harris v McIntosh [2001] 2 NZLR 721 at 724; May v May (1982) 1 NZFLR 165 at 170.
[8] I do not consider that the decision of the Supreme Court in Austin, Nicholls & Co Inc v Stichting Lodestar [2008] 1 NZLR 14 has affected the manner in which appellate courts must carry out their function when considering an appeal against the exercise of a statutory discretion. I take the view that the approach set out at [7] remains the approach that must be taken on appeal.
[19] However, a refusal under s 94 to substitute an alternative penalty for a driving disqualification will involve: (a) factual findings on the circumstances that the offender relies upon for the exercise of the discretion in s 94; and (b) a decision regarding the weight to be placed on the offender’s circumstances as found to exist and whether the weighting is for or against the exercise of the discretion. Regarding the latter, judicial opinion might reasonably differ. However, the former appears to me to require a factual assessment that will either be right or wrong. Thus, I accept the appellant’s argument that a sentencing judge’s factual assessment of the circumstances that might warrant the exercise of this discretion is a “determination of relevant facts” and, therefore, an appellate court is required “to consider the evidence … and reach [its] own opinion on the facts in dispute”: see Heke at [19]. Such assessment is a threshold issue that is preliminary to the exercise of the discretion in s 94.
[20] Whilst Heke dealt with proof of facts under s 24 of the Sentencing Act, I consider that the approach can be applied to proof of facts relevant to establishing the presence or otherwise of conditions upon which the discretion under s 94 is to be exercised. So the point at which the appeal must be approached as an appeal against the exercise of a discretion is only reached once the appellate court has concluded that it has the same view of the facts as the sentencing judge. From this point onwards, the appellate court can only interfere with the decision of the sentencing judge if it finds that he or she has committed the type of error recognised in May v May (1982) 1 NZFLR 165 (CA) and Kacem v Bashir [2010] NZSC 112, [2011] 2
NZLR 1.
[21] Section 94 provides:
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).
Analysis
[22] There is a contradiction on the face of the sentencing notes. At [1] Judge Harvey refers to the appellant having been charged with aggravated driving while disqualified, which is a charge requiring two previous such offences. However, at [8], in the context of finding that the appellant is not a “classic of [sic] case of breaking the cycle”, the Judge goes on to say “what has happened is that on two occasions the defendant has chosen to drive”. Then at [12], the Judge says “I am not satisfied on the basis of two incidents of driving whilst disqualified that this person is in a cycle …”. The references at [8] and [12] to the appellant having driven while disqualified on two occasions leaves me with the impression that having accurately stated the true position in [1] of the sentencing notes, the Judge has later become confused and erroneously treated the appellant as if he had only twice offended in this way.
[23] Thus, when it came to assessing if the appellant was locked in a cycle of driving while disqualified, the Judge made a material error of fact, which wrongly influenced the conclusion that he reached on this subject. This is the type of error that permits this Court to consider the matter afresh.
[24] In this case, I am satisfied that Judge Harvey made a further error. The focus of the Judge’s attention was on whether the appellant was trapped in a cycle of
driving while disqualified or not. However, it is well settled that being trapped in such a cycle is not a prerequisite to the exercise of the discretion in s 94: see Police v Body & Ors [2013] NZHC 1586 at [5] and the cases referred to in footnote 12 thereto where Mallon J affirmed decisions of this Court finding that Parliament did not intend s 94 to apply just to persons caught in a cycle of disqualified driving. Further, as the appellant submits, it is an error of law for a Judge to restrict the exercise of the discretion in s 94 to cases where the offender is seen to be locked in a cycle of driving while disqualified: see Beetson v Police at [11]. There are earlier occasions where this Court has taken the same view of s 94. In Yu v Police, Asher J said at [12]:
Section 94 was seen initially as a way of enabling persons who had offended on a multiple basis, to get out of the “wheel of offending”. However, the discretion is not limited in its application to offenders who fail repeatedly to honour their obligations in relation to disqualification orders, and are therefore hopeless cases. The section can be applied to less serious cases, where persons are facing only their second offence and are liable to disqualification: Jukes v Police (High Court Christchurch, AP 228/94,
5 October 1994, Tipping J).
[25] The approach in Yu was later affirmed by Lang J in Tailor v Police HC Auckland CRI-2009-404-322, 7 December 2009:
[9] Parliament recognises that this type of situation is peculiar to offenders who persistently drive whilst disqualified. Section 94 represents Parliament's endeavour to provide an alternative form of sentence so that the cycle of offending can be broken.
[10] Mr Tailor is not, however, a recidivist offender by any means. He has only been convicted of driving whilst two disqualified on two occasions and driving whilst his licence was suspended on one occasion. All of his offending, putting to one side the present charges, occurred between 15
December 2007 and 7 October 2008. For that reason Mr Tailor falls outside the ambit of offenders that Parliament was primarily considering when it
enacted s 94. That is not to say, however, that s 94 cannot be applied in his
situation. As Asher J recognised in Yu v Police HC AK CRI 2006-404-273
10 November 2006, the section may still be applied in situations where an offender has not been convicted of many offences of driving whilst
disqualified. The benefits of the section are therefore not restricted to repeat offenders. (emphasis added)
[26] Body and Beetson were referred to Judge Harvey, so he would have been aware of the findings in those decisions regarding the availability of s 94. Therefore, once he reached the view, albeit through an erroneous view of the facts, that the
appellant was not locked in a cycle of disqualified driving, I consider that the Judge should then have gone on to consider whether, in any event, he should exercise the discretion in s 94 or not. Even if the appellant’s submissions were focused on him being in a cycle of driving while disqualified, the appellant’s reliance in his submissions on Body and on Beetson should have been enough to remind Judge Harvey that a proper exercise of the discretion required him to have regard to all the circumstances of the appellant, and then to reach a view on whether a further period of disqualification from driving should be substituted with another penalty. However, the Judge did not take this step. I consider this omission to be a further error that allows me to consider the appropriateness of disqualification from driving afresh.
[27] I now turn to consider whether the appellant’s circumstances warrant an
exercise of the discretion in s 94.
[28] The last two incidents of the appellant driving while disqualified were otherwise innocuous. Public safety concerns were, therefore, not engaged. In Body, Mallon J accepted that for driving in breach of disqualification orders that is otherwise innocuous, the sentencing principles and purposes of the Sentencing Act can be met by sentences that do not involve a further period of disqualification.
[29] The close proximity of the last two offences, the appellant’s relatively young age, his otherwise innocuous driving, and his seeming readiness to drive while disqualified all suggest to me that he is the type of person at whom s 94 is directed. The circumstances of the offending do not call for the appellant to be removed from driving vehicles on the road (s 94(1)(b)(i)). The previous two orders of disqualification have not been effective (s 94(1)(b)(ii)). The likely effect of the present order of disqualification is further driving (s 94(1)(b)(iii)). Whether he is seen to be on a short cycle of reoffending in this way or not seems to me to be immaterial. Though if a decision were required, I would find that his third offence showed him to be on a cycle of driving while disqualified.
[30] The appellant has breached three Court orders; the third occasion of such conduct requires denunciation and deterrence. However, those purposes of
sentencing can readily be achieved by a sentence other than disqualification from driving. Moreover, these will be better achieved by the imposition of a sentence that is effective, and so less likely to be flouted.
[31] Judge Harvey also sentenced the appellant to community work. He has performed this sentence well in the past, which shows that it is an effective sentence for him and one that he is not likely to flout.
[32] I consider, therefore, that the order of disqualification from driving should be set aside and the hours of the sentence of community work increased to 150 hours. A sentence of 150 hours of community work is a stern sentence for disregarding a court order. It registers this Court’s concern for the appellant’s apparent blatant disregard for court imposed orders, thereby satisfying the requirement for denunciation and deterrence. At the same time, it gives the appellant an opportunity to rehabilitate himself, while reducing the risk of him committing further breaches of Court orders.
Result
[33] The appeal against the order of disqualification from driving is allowed. In its place, the appellant’s present sentence of 80 hours of community work is increased to 150 hours of community work.
Duffy J
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