Bardwell v Police [2019] NZHC 1292 (7 June 2019)

Last Updated: 19 July 2019

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2019-412-000009 [2019] NZHC 1292

BETWEEN	SEAN CHRISTOPHER BARDWELL Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	7 June 2019
Appearances:	A Dawson for Appellant C Ure for Respondent
Judgment:	7 June 2019

ORAL JUDGMENT OF GENDALL J

BARDWELL v NEW ZEALAND POLICE [2019] NZHC 1292 [7 June 2019]

Introduction

[1] On 30 January 2019 in the District Court at Dunedin Judge Crosbie sentenced the appellant Sean Bardwell to 11 months’ home detention and ordered him to be disqualified from holding or obtaining a driver’s licence for three years. Mr Bardwell was sentenced on the basis he had pleaded guilty to a range of charges. These included dangerous driving causing injury; possession of methamphetamine; robbery; driving while impaired by methamphetamine; unlawfully taking a motor vehicle; aggravated injury; and criminal conversion of a motor vehicle. It was for the offences under the Land Transport Act 1998 that Mr Bardwell was disqualified from holding or obtaining a driver’s licence.

[2] Mr Bardwell appeals against this sentence on the single ground that the three- year licence disqualification period was manifestly excessive.

Facts

[3] Turning now to the factual background in this matter, at 1.40 a.m. on 30 May 2018 Mr Bardwell approached the Splash N Dash carwash at Blenheim Road in Christchurch. A man was washing his vehicle and had left it running as he washed it. Mr Bardwell got into the driver’s seat of this vehicle and attempted to drive away. The victim tried to stop Mr Bardwell by getting into the front passenger’s side of the vehicle to remove the keys. Mr Bardwell hit him over the head and managed to get the vehicle into gear. He then accelerated away, crashing through a fence and then into a skip at the back of the carwash. During these events, the victim’s leg was crushed between the vehicle and the skip, causing a hematoma to his knee, nerve damage and swelling.

[4] Upon his arrest, Mr Bardwell admitted he had recently consumed a large amount of methamphetamine. He failed to complete a compulsory impairment test to the satisfaction of the police officer and a blood sample taken later confirmed Mr Bardwell had been using methamphetamine.

District Court decision

[5] Turning now to the District Court decision, on the charges of dangerous driving causing injury and driving while impaired by methamphetamine, Judge Crosbie ordered Mr Bardwell to be disqualified from holding or obtaining a driver’s licence for three years. His Honour did not appear to provide any explicit reasons to indicate how that period was determined.

Principles on appeal

[6] Turning now to the principles to be applied on this appeal, appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.¹ As the Court of Appeal mentioned in Tutakangahau v R quoting the lower court’s decision, a “...court will not intervene where the sentence is within the range that can be properly be justified by accepted sentencing principles”.² It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.³

Submissions

Appellant’s submissions

[7] Turning now to the appellant’s submissions, Mr Dawson, counsel for Mr Bardwell, contends that licence disqualification here for a period of three years was in this case manifestly excessive and that a disqualification for no more than two years was the appropriate period in this case. He cites Leaupepe v Police, in support of this contention. In that case, this Court said that in the case of disqualification, the sentencing judge had a greater discretion than in respect of a conventional sentencing.⁴

¹ Criminal Procedure Act 2011, ss 250(2) and 250(3).

² Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

³ Ripia v R [2011] NZCA 101 at [15].

⁴ Leaupepe v Police [2015] NZHC 1766 at [9].

[8] Mr Dawson highlights that in Leaupepe, MacKenzie J cited the Court of Appeal decision in Hitchens v R where the Court noted the two competing considerations when determining an appropriate period of disqualification.⁵ These were first, that long periods of disqualification typically leave little hope for offenders; and secondly, that it is incumbent on the courts to keep dangerous drivers off the road for as long as possible.

[9] Mr Dawson then cited a number of cases that he says demonstrate that two years was the appropriate disqualification period in the present case. In the first of these, R v Griffiths, this Court ordered an offender to be disqualified from driving for six years on one charge of dangerous driving causing death and one charge of dangerous driving causing injury.⁶ The offender in that case had driven at excessive speed on a motorway, pulling on the handbrake twice, the second time leading to the death of one of his three teenage passengers. Another passenger received concussion and a laceration to his head, the final passenger and the driver of another vehicle involved both received minor cuts and bruising. The offender was 18 years old, on a restricted licence, and intoxicated with a breath alcohol content of 587 mcg/L. He had no previous convictions.

[10] Mr Dawson then went on to cite Howard v Police where Dunningham J in this Court said that the Court:⁷

...should be cautious in drawing comparisons with other cases relating to disqualification periods, it is worth noting that the disqualification of the length imposed on the appellant is usually reserved for cases where defendants are driving under the influence of alcohol, causing the death of another.

In that case, Howard, the original licence disqualification period of four years imposed in the District Court was reduced on appeal to this Court to one of two years. There the offender had confronted the victim at his home. When the offender started to drive away he saw that the victim was filming him. The offender drove back towards the victim and drove into him with his car and then drove off, leaving the victim lying on the ground. The victim suffered a laceration to his toe, glass fragments lodged in his

⁵ Hitchens v R CA380/03, 25 March 2004 at [10].

⁶ R v Griffiths [2018] NZHC 1104.

⁷ Howard v R [2017] NZHC 2986 at [32].

foot requiring medical removal, bruising to his arm, and pain and tenderness to his side. In reducing the disqualification period to one of two years, Dunningham J was also guided in part by her assessment that the offender did not pose a particular risk to public safety more generally.⁸

[11] The next decision referred to, Henderson v Police, involved imposition of a licence disqualification for 21 months. This was imposed on four charges of dangerous driving causing injury, one charge of driving with excess blood alcohol and one charge of failing to stop.⁹ In that case the offender had driven at excessive speed, leading police to give chase. The chase ended in him crashing into a car driven by a 17 year old carrying four passengers. One victim received whiplash, lacerations to her head, head injuries which still required her to receive treatment six months later, and ongoing tinnitus and vision difficulties. Another victim suffered moderate concussion and he lost a part of his eyelid, requiring 16 stitches above an eye. Other passengers suffered whiplash and back strain.

[12] Turning now to the present appeal before me, Mr Dawson submits that the driving offending and the threat to public safety was less serious than that which had occurred in both Griffiths and Henderson. As to this, he highlighted the short duration of the driving involved; the fewer victims; the injuries in total which he said were more minor; and the fact it did not take place in an open public place with high traffic density.

[13] He also maintains that when the present offending is compared to the decision in Howard, it lacks the deliberate nature of the conduct seen in that case. Mr Dawson says that in the present case, it was accepted that Mr Bardwell had done something which was not only out of character for him, but it was offending motivated by drug- fuelled paranoia.

⁸ At [33].

⁹ Henderson v Police [2017] NZHC 2219.

Respondent’s submissions

[14] Turning now to the respondent’s submissions here. In her submissions for the Crown Ms Ure also referred to the decisions of Leaupepe,¹⁰ Hitchins,¹¹ Griffiths¹² and Howard.¹³ In addition, Ms Ure mentioned two further cases, Tohu v R¹⁴ and Tai v R.¹⁵

[15] In Tohu, an 11-year period of disqualification was set aside by the High Court on appeal and in its place a five year period of disqualification imposed in relation to a single charge of reckless driving. One year’s disqualification was imposed cumulatively on a charge of failing to stop, bringing the total disqualification imposed to a period of six years. Notably, the disqualifications were ordered to take place upon the appellant’s release from prison. He was subject to a sentence of 12 months’ imprisonment for driving offending and seven months for other offending. In that case, Tohu, the appellant had an unenviable history in relation to driving offending but no one was injured, fortunately, in the course of his offending here. The Crown suggest therefore that extensive periods of disqualification can follow offending where no injury occurs, given the assessment of risk that arises out of relevant facts in a particular case.

[16] In the decision in Tai, a 10 year period of disqualification was quashed by the Court of Appeal and replaced with a period of five years’ disqualification. The appellant was subject to a sentence of two years and nine months’ imprisonment which was not challenged on appeal. In that case the appellant, Ms Tai, struck the victim with her vehicle as she was crossing the road. The victim died as a result. The appellant had an excess breath alcohol level of 598 micrograms and two previous convictions for offending of the same nature, five and 10 years prior.

[17] The Crown says Tai demonstrates that the consequences of the offending, that is the death of the victim, can occur in a range of circumstances. The occurrence of death of a victim is not something that a defendant can actively avoid, it seems, but is

¹⁰ Leaupepe, above n 4.

¹¹ Hitchins, above n 5.

¹² Griffiths, above n 6.

¹³ Howard, above n 7.

¹⁴ Tohu v R [2015] NZHC 2009.

¹⁵ Tai v R [2019] NZCA 552.

a consequence of decisions which are made by a defendant. The death of a victim affects the nature of charges that follow. A maximum penalty may well be greater, however, across offending where there is injury or death, despite the fact that the minimum disqualification period remains the same.

[18] Turning now to the present case, the minimum disqualification periods of one year and three months respectively apply.

[19] Overall, in Ms Ure’s submissions for the Crown, she contended before me that the imposition of the three-year period of disqualification, although it might be considered stern, but nevertheless, her contention was that it was not a manifestly excessive sentence.

Analysis

[20] Turning now to my analysis in this matter, as McKenzie J confirmed in Leaupepe, the “principle objective of disqualification is public safety”.¹⁶ One of the implications of this is that the Court is less reliably assisted by comparing the offending in the present case with that which occurred in other cases.¹⁷ The focus here should be on the particular risk that Mr Bardwell poses to public safety, namely to members of the public using the roads. Once that risk is assessed and quantified, it is proper for the Court to keep the period of disqualification “as short as possible in relation to achievement of the underlying end of road safety”.¹⁸

[21] While comparison with other cases is not always a reliable way to arrive at the appropriate period of disqualification, the cases cited, in particular, by Mr Dawson do tend to show that the period imposed in this case was in excess of that necessary in the circumstances. As Mr Dawson highlighted, the driving here was of short duration, it involved only one victim and did not occur in an area of high traffic density. These factors set this apart as a less serious case, in my view, than the offending seen in the decisions of Griffiths and Henderson.

¹⁶ At [8].

¹⁷ Leaupepe, above n 4, at [9].

¹⁸ Duncan v Police HC Christchurch CRI34/03, 17 July 2003.

[22] In the decision I mentioned a moment ago, Duncan v Police, Pankhurst J considered that an offender with a history of driving offending receiving a sentence of imprisonment for the first time represented “something of a watershed”. In this case, Mr Bardwell has received a sentence of home detention that he does not challenge on appeal. This is the most significant sentence he has ever received, having only previously received a fine for what I understand was one previous conviction for careless use of a motor vehicle. It is clear home detention involves a high level of incursion upon personal liberty, second only to imprisonment.¹⁹ Drawing on the broader reasoning engaged by Pankhurst J in Duncan, it is appropriate in this case, in my view, for the Court to be hesitant to impose disqualification for a lengthy period. This is because Mr Bardwell’s first sentence of home detention represents a significant punishment in itself, having the potential (given his criminal history) to have a significant deterrent effect on him, this going some way to addressing public safety concerns.

[23] Moreover, it is difficult to see in this case how Mr Bardwell poses a particularly high risk to public and road safety. Judge Crosbie in the District Court was satisfied that Mr Bardwell had shown real remorse and a willingness to engage in restorative justice. His Honour considered the offending to be “[c]learly a one-off situation” and “out of character”, and that it occurred in the context of a “young man...in the middle of a psychotic episode”. In that context, I am satisfied that a three- year disqualification period here is excessive in relation to the achievement of public safety.

[24] Judge Crosbie did correctly recognise, however, that this was a case of reasonably serious offending. A period of disqualification nearer to the 15 months minimum might be seen, therefore, as inappropriate. Weighing this against what I see as the somewhat low risk to public and road safety discernible in the circumstances prevailing in this case, however, an appropriate period of disqualification in this case, in my view, would be two years. This would have appropriately met the need to protect the public and to reflect the seriousness of the appellant’s driving offences in this case.

¹⁹ See Malupo v Police [2018] NZHC 801 at [25].

Conclusion

[25] In conclusion, I am satisfied, therefore, that Judge Crosbie’s order that Mr Bardwell be disqualified from holding or obtaining a driver’s licence for a period of three years was manifestly excessive in all the circumstances here. I allow the appeal. I quash the order for a three-year disqualification from driving and substitute disqualification for a period of two years..


...................................................

Gendall J

Solicitors:

Public Defence Service, Dunedin RPB Law, Dunedin