Beeston v Police [2012] NZHC 1064 (17 May 2012)

Last Updated: 24 May 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-81 [2012] NZHC 1064

KIRI DIANA BEESTON

Appellant

v

NEW ZEALAND POLICE

_Respondent

Hearing: 14 May 2012

Counsel: Y Lee for the Appellant

F Nizam for the Respondent

Judgment: 17 May 2012

_{JUDGMENT OF WOODHOUSE J}

This judgment was delivered by me on 17 May 2012 at 4:30 p.m. pursuant to r 11.5 of the High Court Rules 1985.

Registrar/Deputy Registrar

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

Solicitors:

Mr Yoon Lee, Solicitor, Takapuna

Ms F Nizam, Meredith Connell, Office of the Crown Solicitor, Auckland

BEESTON V NEW ZEALAND POLICE HC AK CRI-2012-404-81 [17 May 2012]

[1] Ms Beeston appeals against her sentence on 17 February 20121 for driving with excess breath alcohol having been convicted at least twice previously for a similar offence. The level of alcohol was 483 micrograms per litre of breath. Ms Beeston had been convicted on three previous occasions for driving with excess breath alcohol. The previous offences and sentences were:

(a) December 1997: 744 micrograms: 50 hours community service and six months disqualification from holding or obtaining a driver licence (which I will refer to as “disqualification”).

(b) March 1998: 457 micrograms: non-residential periodic detention for three months and six months disqualification.

(c) March 2000: 670 micrograms: two months non-residential periodic detention and disqualification for one year.

[2] Ms Beeston was also convicted in July 1998 for driving while disqualified. This arose out of the disqualification on the first occasion.

[3] The sentence imposed for the present offending was 120 hours of community work, nine months supervision with special conditions relating to alcohol counselling, and disqualification for one year and one day commencing on the date of sentence.

[4] Ms Beeston appeals on two principal grounds:

(a) The Judge was in error in declining to exercise the discretion under s 94 of the Land Transport Act 1998 (the Act) not to make an order of disqualification.

(b) The sentence of 120 hours community work was manifestly excessive.

1 Police v Beeston DC North Shore CRI-2011-090-008337, 17 February 2012.

[5] There was also a purported appeal against a bail condition, imposed on Ms Beeston’s first appearance on 27 October 2011, that she not drive pending (it appears) disposal of the prosecution. Mr Lee accepted that an appeal against the bail condition should have been made within the requisite time limit following the imposition of the condition. He did not pursue this point, but the condition has relevance.

The sentencing decision

[6] The Judge noted the previous convictions. He referred to the very short summary of facts relating to the present offending: the car was stopped by Police; Ms Beeston “exhibited signs of recent alcohol intake”; the breath alcohol reading was 483 micrograms. He also noted Ms Beeston’s advice to the constable that she thought it would be all right to drive.

[7] The Judge then said:

[5] The aggravating factor is this is now your fourth drink driving offence. I take into account you have entered a guilty plea at a relatively early stage and you have not offending in this way now for 12 years. You have also expressed remorse for your offending and disappointment with the decision you made on that night.

[6] The probation report notes that you have recently completed the

CADS course and that you intend to undertake their solution focus group on

14 February. You are assessed to be at a low risk of reoffending if you continue to address your alcohol issues.

[7] Ms Beeston, normally for a fourth drink driving offence the court is going to look at a custodial sentence of some type. I am not going to impose it on this occasion because it is 12 years since your last conviction and your level was relatively low. But you need to know that you cannot run the risk of coming back to Court again on any further drink driving offence.

[8] He imposed the sentence of 120 hours community work and nine months supervision before considering the application under s 94 of the Act. On the s 94 application he said:

[10] ... The basis of that application is that you have young children and they would be disadvantaged by a disqualification, particularly the young child who may need hospital treatment from time to time and it would be costly to you to find other means of transport to take that child to hospital. I am sympathetic to your circumstances, Ms Beeston, which is why I have

only imposed 120 hours of community work. Normally it would be considerably higher than that. I want you to be able to serve that sentence and get it behind you so you can get back to putting all your attention into looking after your children and complying with the sentence supervision so you do not offend again.

[11] However, I am not satisfied that grounds have been made out under s 94 that are applicable. Section 94 has an intent to prevent people who are on an endless cycle of disqualification being disqualified further so that they reach a hopeless situation. You have no current disqualification and the circumstances of your offending are such that it is appropriate and proper that the disqualification should be entered. You are, therefore, disqualified from holding or obtaining a driver’s licence for 12 months and one day, from today.

Discussion

[9] Section 94 is 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).

[10] The appeal relating to s 94 is in respect of the Judge’s exercise of a discretion. Ms Beeston as the appellant must establish that there was an error of principle by the Judge, that he took into account irrelevant circumstances, failed to take into account relevant circumstances, or was plainly wrong.

Error of principle? The scope of s 94

[11] I am satisfied that there was an error of principle by the Judge. This arises out of his statement at [11] that the purpose of s 94 is “to prevent people who are on an endless cycle of disqualification being disqualified further so that they reach a hopeless situation”. It appears clear that the Judge proceeded on the basis that, unless the case was of that type, s 94 would not apply. In my judgment s 94 is not

limited in this way. I was not referred to any decision of the Supreme Court or Court of Appeal on the scope of s 94. I will therefore consider the question as a matter of statutory interpretation before referring to High Court authorities on the point. It is appropriate to approach the matter in this way because there are some High Court decisions which could be read as limiting the section to circumstances as described by the Judge at [11], whereas other decisions state clearly that the section has wider application.

[12] The three paragraphs in s 94(1) prescribe three pre-conditions to exercise of the discretion: (a) a previous disqualification; (b) a conclusion that it would be inappropriate to order disqualification having regard to the four matters listed in paragraph (b); and, (c) a conclusion that it would be appropriate to sentence the offender to a community-based sentence.

[13] The condition in paragraph (a) does not involve exercise of a discretion. It requires determination of an objectively ascertainable fact – whether the offender has previously been disqualified. This is the entry condition. It does not specify a number of previous disqualifications. As a matter of construction, one previous disqualification will suffice at this point (although more than one previous disqualification is not a bar – the singular includes the plural). This conclusion is reinforced by the words in paragraph (b)(ii) referring, in the singular, to the “effectiveness or otherwise of a previous order of disqualification”.

[14] Section 94(2) provides that s 94 may be applied notwithstanding any other provision in the Act requiring disqualification. The only qualification to this is contained in s 94 itself, in sub-section (4). Disqualification can be ordered, or must be ordered, under numbers of provisions prescribing a range of offences, not just the offences of driving while disqualified under s 32. What this means, on the present issue of interpretation, is that s 94 is not limited to people who are to be sentenced for driving while disqualified; it is not limited to people “on an endless cycle of disqualification”.

[15] It is also clear that s 94 can apply notwithstanding the fact that the defendant is not currently subject to disqualification. That is to say, again, a person does not

have to be on a “cycle of disqualification”. There is nothing in s 94 indicating that this is a requirement. This is reinforced by s 94(4) containing the exclusions. Section 94 does not apply if, amongst other things, s 65 applies. Section 65 prescribes mandatory indefinite disqualification, and driver assessment, for defined categories of repeat offences involving driving with alcohol or drugs, with a previous offence having been committed within five years of the date of commission of the current offence. In other words, with more serious types of drink driving offences, s 94 is expressly excluded in certain cases where the offender will be subject to an existing disqualification. But a person who may have been disqualified over five years before is not excluded. And such a person is not excluded even though the earlier offence may have been a more serious offence of its kind.

[16] Section 94 replaced s 30AC in the Transport Act 1962. The provisions of s 30AC, in material respects, were essentially the same as those in s 94 in its present form. However, when s 94 was enacted its application was narrower than that of s 30AC in the 1962 Act. This is because of the original wording of s 94(4): “This section does not apply if the offender is not entitled to apply for or hold a limited licence, or if s 63 or s 65 applies”. This meant s 94 did not apply, inter alia, to a person charged with disqualified driving who was already subject to disqualification. Therefore, it did not apply to common cases of repeat offending of this type – those on a cycle of disqualification. But there was nothing in s 94, as originally enacted, to exclude an application in circumstances such as those applying to Ms Beeston.

[17] Section 94(4) in its present form was introduced by s 48(2) of the Land Transport Amendment Act 2005. The Parliamentary Select Committee confirmed that this amendment of s 94 was to “extend its scope to include disqualified drivers who are caught in a cycle of disqualified driving but have no other recent

convictions for serious road safety offences”.2 This is the source of the expression

used by the Judge. Its immediate relevance, however, is that the Select Committee’s observation confirms what may be inferred from the process of amendment. The amendment of s 94(4) extended the scope of s 94. This was an extension to include those coming within the category referred to by the Select Committee and by the

_{Judge in this case. But it did not, at the same time, exclude other types of offender,}

2 As recorded in Maeva v Police HC Auckland CRI-2010-404-402, 11 March 2011, Keane J at [33].

such as Ms Beeston, who were covered by s 94 when that section was enacted in

1998.

[18] Cases applying s 30AC of the Transport Act 1962 are relevant because of the similarity of the two provisions. Some of the early decisions on s 30AC suggested that the purpose of s 30AC was to deal with repeated offences of driving while disqualified. For example, in Mitchell v Police3 Hardie Boys J said:

... 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.

[19] Other decisions recognised that one purpose of s 30AC was, or might be, as described by Hardie Boys J, but concluded that the provision had substantially wider application. In Rodgers v Ministry of Transport,4 a case decided 10 days before the judgment in Mitchell v Police, Gallen J said:

... The District Court Judge took the view that considering it in context the provisions of subs (1)(b)(ii) [of s 30AC, now s 94(1)(b)(ii)] meant that it was appropriate to exercise the discretion only where the further imposition of a disqualification would be ineffective and cited the two examples of the situation where an offender had numerous breaches so that a disqualification was practically ineffective and the situation where the terms of disqualification were so long that it became meaningless to add to them. This is certainly an interpretation which is open but there are difficulties in the way of accepting it. If it were right it would mean that the persistent offender who had failed totally to honour his or her obligations in relation to a disqualification order would be in a better position than a person with only one previous offence who had technically breached the disqualification order. Such a person would, if this interpretation was correct, be unable to call in aid the provisions of s 30AC and would not be able to obtain a limited licence because a disqualified driver who commits an offence against the disqualification is not entitled to this particular concession.

... If the Court having had regard to the factors set out arrives at the conclusion that it would be inappropriate to order disqualification and further, having come to that conclusion the Court considers it would be appropriate to deal with the matter by way of a community-based sentence, then there is a discretion to deal with the matter in that way. Put in general

3 _{Mitchell v Police [1989] NZHC 592; (1989) 5 CRNZ 190 (HC) at 193.}

4 Rodgers v Ministry of Transport [1989] 3 NZLR 321 (HC) at 323; (1989) 4 CRNZ 100 at 102.

terms the scheme of the Act relating to disqualification would be that there are certain offences for which a mandatory disqualification must be imposed. There is a discretion to not impose such a disqualification when the circumstances of the offence justify this. The power to grant a limited licence provides a means of mitigating any severity which this scheme imposes. In the case of a person who has a previous disqualification, the Court has power in the circumstances contemplated by s 30AC to substitute a community-based sentence and can take into account the circumstances of the offender where these are not appropriate for consideration in respect of a first offender. Any harshness to a first offender by that scheme is softened by the ability to grant a limited licence and in cases such as the offence of disqualified driving where the concession of the limited licence is not available, the Court has the extended discretion confirmed by s 30AC. As the District Court Judge said there may be cases where the number of disqualifications which have been imposed or the length of time involved may be such that for practical reasons some other form of sentence would be more appropriate but I do not think that the discretion should be limited only to such cases.

[20] Rodgers v Ministry of Transport was expressly followed in subsequent cases including: Grimwood v Ministry of Transport;5 Skelton v Ministry of Transport;6

_{Bayly v Police;}7 _{Jukes v Police;}8 _{Boesley v Police.}9 _{Some of these decisions noted}

that there was no clear statement of purpose and accepted that there was more than one purpose. For example, in Grimwood Tipping J said, at 3:

The rationale behind the section has to be derived by inference. There is no clear statement of the purpose or purposes of the section within its own terms. The learned author of Graham in his commentary to the section says that the introduction of the section was a major change in sentencing philosophy. He observes:-

"It will be interesting to see to what extent Judges avail themselves of this provision to avoid the stultifying effects of large buildups of disqualification periods (often well into the future) in particular cases."

That suggests, and I agree, that this will be the primary focus of the section, i.e. to get people off the wheel of offending, and avoid the accumulation of long periods of disqualification into the future. But I also agree with Gallen J in Ro[d]gers v. Ministry of Transport ... that the operation of the section is not necessarily to be regarded as confined to that sort of situation.

5 _{Grimwood v Ministry of Transport HC Christchurch AP184/91, 16 August 1991, Tipping J at pp 3-4.}

6 _{Skelton v Ministry of Transport HC Auckland AP254/91, 22 November 1991, Barker J at pp 2-3.}

7 Bayly v Police HC Auckland AP217/93, 1 October 1993, Barker ACJ at p 10. There is a quoted passage at p 10 said to be from Rodgers v Ministry of Transport at 323. The quoted passage, however,

appears to have come from commentary on s 30AC in Becroft Hall and Mark, Transport Law (Butterworths). This commentary is in the current loose-leaf edition (Becroft and Hall’s Transport Law (NZ)) at para LTA94.3(A).

8 _{Jukes v Police HC Christchurch AP228/94, 5 October 1994, Tipping J at p 2.}

9 Boesley v Police HC Napier AP52/97, 10 October 1997, Neazor J at pp 4-5.

[21] Section 94, with s 94(4) in its amended form, was considered by Asher J in Yu v Police.10 The Judge discussed the amendment of s 94(4) and described the amendment as widening “the group of offenders who could benefit from the operation of s 94”. He said:

[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).

[22] I respectfully agree with the Judge’s observations with one qualification. I do not consider that those covered by the section are confined to those who repeatedly drive while disqualified and “less serious cases, where persons are facing only their second offence and are liable to disqualification”. The second category will include less serious cases, with only one previous disqualification. But s 94, in its terms, may also be applied to serious cases with more than one previous disqualification. The critical control comes in the exercise of the discretion in accordance with the statutory provisions in s 94(1). Section 94(1) is a carefully crafted provision bearing on exercise of the discretion. The Court should not add a gloss. Regard must be had to the relevant general purposes of the Act, but that again bears on exercise of the discretion, not on the threshold question as to whether s 94 applies at all.

[23] The purpose of s 94 was discussed by Keane J in Maeva v Police.11 Keane J discussed the 2005 amendment of s 94(4) and referred to the observations of the select committee quoted above. I do not read this decision as expressing an opinion that the only purpose of s 94 is to make provision for those caught in the cycle of disqualified driving. The Judge referred to the decision of Asher J in Yu v Police and did not express any reservation as to the wider application of s 94.

[24] For these reasons I am satisfied that s 94 does have wide application. It is

capable of applying to any person who has at least one previous disqualification unless s 94(4) applies. The only exclusions are those stated in s 94(4). It may be

10 _{Yu v Police HC Auckland CRI-2006-404-273, 10 November 2006.}

11 Maeva v Police HC Auckland CRI-2010-404-402, 11 March 2011 at [28]-[34].

that the discretion in s 94 will be more often exercised in respect of persons who are caught in a cycle of repeated offences of driving while disqualified. The broad purposes of the Act, and those specifically applying to driving while affected by alcohol or drugs, may mean that the application of s 94 to such offenders will be less frequent. The discretion is nevertheless available in respect of such offenders, including Ms Beeston. Because of this conclusion it is necessary on this appeal to exercise the discretion de novo.

[25] Although I have differed from the learned Judge, it is understandable that he approached the matter in the way he did. The written submissions he received in support of the application did not contain an express submission that s 94 has the wide application discussed in this judgment. The submission suggested that the purpose of the section was limited to repeat disqualified driving offenders. This arose from the fact that the Judge was given a passage of a commentary on s 94 from Law of Transportation (Brookers) at para LT94.01 under the heading “Sentencing philosophy”. The commentary commences:

In certain circumstances, the court may substitute a community-based sentence instead of imposing a period of disqualification from driving. Judges can use this provision to avoid the stultifying effects of large build- ups of disqualification periods in particular cases.

Passages from the judgment of Keane J in Maeva v Police12 were then cited but, in the context, in a way which may leave an impression that the purpose of s 94 is limited to repeat disqualified driving offending. The Judge was not apparently referred to commentary a few paragraphs on, at LT94.05, which refers to the decision of Tipping J in Jukes v Police,13 and other decisions, referring to the wide application of s 94. The commentary in Becroft and Hall’s Transport Law (NZ) also

_{makes clear that the section has wide application.}14

12 _{Maeva v Police, above n 11, at [30]-[34].}

13 _{Jukes v Police, above n 8.}

14 See para LTA94.3(a) , with references to Rodgers v Ministry of Transport, Grimwood v Ministry of

Transport and Nicholle v Police HC Christchurch AP 376/93, 13 December 1993.

Exercise of the s 94 discretion

[26] The focus of the discussion under this heading is paragraphs (a), (b) and (c) of s 94(1). Ms Beeston meets the pre-condition in paragraph (a). I am also satisfied that paragraph (c) applies; I do consider it appropriate that Ms Beeston be sentenced to a community-based sentence. This is consistent with the conclusion of the Judge and amply borne out by the relevant circumstances of the offence and the offender. The heart of the enquiry, bearing on exercise of the discretion, are the four matters referred to in sub-paragraphs (i) to (iv) of paragraph (b).

[27] Under sub-paragraph (i), the “circumstances of the case” must mean the circumstances of the offence because the remaining part of the sub-paragraph refers to the circumstances of the offender. The circumstances of the offence tend not to support a conclusion that it would be inappropriate to order disqualification. This is because the offence contains within it the previous offending. Under s 56(4) a person commits an offence if the person “commits a third or subsequent offence” against the provisions specified, which provisions include s 56. The fact that there were three previous offences makes the present offending worse, because two previous offences would have brought Ms Beeston within this more serious category of offending. On the other hand: the most recent of the previous offences was 11 ½ years before the current offence; this repeated offending falls short of the most serious types of repeat offending dealt with in s 65; as the Judge said, the breath alcohol level on the current offence “was relatively low”; and there was no evidence of poor driving, let alone dangerous driving, other than what is inherent in driving after drinking alcohol.

[28] The circumstances of Ms Beeston, in terms of sub-paragraph (i), are appropriately considered in conjunction with the criterion in sub-paragraph (iii) – the likely effect on Ms Beeston of a further order of disqualification. These considerations weigh substantially in favour of exercising the discretion by not imposing disqualification. These matters were at the forefront of submissions ably presented by Mr Lee on behalf of Ms Beeston. They were referred to in part by the Judge at [10] and, as the Judge noted at [10], he was sympathetic to Ms Beeston’s circumstances.

[29] This offence occurred not long after Ms Beeston’s partner left her and, according to the submissions from Mr Lee, left her for another woman. Ms Beeston said to the probation officer that on the night of the offending she was socialising with female friends as she had been depressed by the recent relationship breakdown. She said that she “was not drinking that much” and that she started drinking water about an hour before driving. She also said to the probation officer: “I’m hating that I have been DIC’d”. There does appear to be genuine remorse. This is reinforced by the fact that Ms Beeston, following this offending, completed a community alcohol and drugs service “getting started” program.

[30] Ms Beeston is 33. Her earlier driving offences occurred when she was aged between 19 and 21. It is notable that there has been the gap of over 11 years between a period when there was plainly a serious drink driving problem when Ms Beeston was young and the most recent offence. The probation officer assessed Ms Beeston as being at low risk of re-offending if she continues to deal with problems arising from consumption of alcohol. Ms Beeston said she was willing to undertake a sentence of supervision of the sort directed by the Judge. The probation officer said: “Ms Beeston appears to be a resourceful woman given she has voluntarily availed herself of support in the community and she has completed the CADS Getting Started program and will be undertaking the follow-up Solutions Focus Group”.

[31] Ms Beeston is now the sole parent of four children. Their ages (in February

2012 when Ms Beeston completed an affidavit for the District Court sentencing) were 11, 9, 2 and 8 months. Ability to drive a car is likely to be important for a solo parent with four young children. That conclusion of a general nature is reinforced by the submissions from Mr Lee relating to particular requirements for Ms Beeston’s family. It is unnecessary to go into the detail, but I will refer to some matters. Ms Beeston is in receipt of a solo mother’s benefit. Before the bail condition and then the disqualification were imposed, Ms Beeston was part of a car-pooling arrangement for shared care for Ms Beeston’s children and the children of friends. For the children to be involved in care arrangements, each parent must have a car. This car-pooling provides day-care and after-school-care for young children. It is of benefit for the children as well as for the parents. Ms Beeston’s youngest child has health problems. There is a medical certificate which states that this child requires

frequent visits to the general practitioner for check-ups and frequent visits to hospital. There are obvious transport needs in this regard. If Ms Beeston is unable to drive these visits will at the least require public transport which may not be best for the child. If an ambulance is needed, as has occurred, the cost is $75 but the state subsidy is $40. This is a case where the availability of a licence is important for the children, and including the youngest child with health problems. These are not matters which could readily be met by grant of a limited licence. Based on the submissions for Ms Beeston, I also accept that a licence may enhance Ms Beeston’s ability to obtain paid employment, at least on a part time basis, which she says she wishes to do.

[32] Sub-paragraph (ii) requires consideration of “the effectiveness or otherwise of a previous order of disqualification”. As Lang J observed in Thomas v Police15 this “can be an ambiguous criterion to apply”. It can be argued, in the circumstances of this case, that the last disqualification, in 2000, was effective because there was no further offending for over 11 years. This would then suggest that a further order for disqualification would be likely to be effective. This was the thrust of Ms Nizam’s

submission for the respondent on this criterion. There are arguments the other way, but viewing this consideration in isolation it tends against the application. However, there is an unusual feature in this case, unlikely to arise in many other cases. This is the fact that there has been an effective disqualification of Ms Beeston for over six months. There was the bail condition prohibiting her from driving from 27 October

2011 and the disqualification imposed in the District Court effective from 17

February 2012 to the date of this judgment. The sentencing benefits sought to be achieved by disqualification have in reasonable measure already been achieved. And they will have been achieved with the adverse consequences not only for Ms Beeston but, and more importantly, for her children, which I have already outlined.

[33] Sub-paragraph (iv) is directed to “the interests of the public”. I am satisfied that the various interests of the public to be assessed on sentencing can adequately be met without imposition of disqualification in addition to the sentences of community

_{work and supervision. I am also satisfied that it is positively in the public interest to}

15 Thomas v Police HC Tauranga CRI-2010-470-15, 13 May 2010 at [21]. See also Yu v Police, supra n 10, at [12] (omitted from the citation at [21] above).

give Ms Beeston the ability to use the shared care arrangements for her children, to be able to get her youngest child to the doctor or hospital whenever required, and generally to encourage Ms Beeston to seek to provide from her own resources, as best as she reasonably can, for her children as well as for herself. It is not to be overlooked that rehabilitation of the offender may be as important a consideration in sentences for offences under the Land Transport Act as it is for sentencing in many other cases.

The length of the community work sentence

[34] Mr Lee submitted that a sentence of around 120 hours community work and nine months supervision, would be an appropriate sentence if there is no disqualification. He submitted that, if the disqualification were to remain, the community work sentence of 120 hours was manifestly excessive.

[35] Mr Lee referred to a number of earlier decisions.16 He relied in particular on the recent sentencing observations of Keane J in Maeva v Police.17 Mr Lee submitted that this decision suggested that the “base” sentence, before considering what might be described as an “add on” in lieu of disqualification, would be between

55-75 hours community work, with a further 60 hours community work in lieu of disqualification. However, in Maeva the appellant was sentenced for his third offence of driving while disqualified, not a fourth offence of driving with excess breath or blood alcohol. Against this, however, I consider that weight needs to be attached to the fact that Ms Beeston was effectively disqualified for over four months pursuant to the bail condition, and has had the further period of formal disqualification following the sentence imposed on 17 February 2012. I am also bound to have regard to all of the matters already discussed relating to the circumstances of the offence and the circumstances of Ms Beeston. There is the further consideration that there is no appeal against the sentence of nine months supervision. It is not to be overlooked that this is a sentence in itself. Weighing all

_{these matters, which include some considerations which may not have been put fully}

16 These are most of the decisions earlier referred to, on the question of interpretation, together with: Mallon v Police HC Invercargill AP76/95, 24 April 1996, Tipping J; Walters v Police HC Dunedin AP58/93, 13 September 1993, Williamson J.

17 Maeva v Police HC Auckland CRI-2010-404-402, 11 March 2011 at [38]-[39].

to the Judge, and matters which have effectively arisen since sentencing, I consider that the appropriate length of the community work sentence is 80 hours.

Result

[36] The formal orders on appeal are:

(a) The order for disqualification is quashed.

(b) The sentence of 120 hours community work is quashed and replaced with a sentence of 80 hours community work. Pursuant to s 66B of the Sentencing Act the probation officer has authority to direct that up to 16 hours be spent in training in basic work and living skills.

(c) The sentence of nine months supervision with the special conditions is confirmed, those special conditions being:

(i) To attend alcohol counselling as directed by the probation officer.

(ii) To attend any other counselling or programs as directed by the probation officer.

Woodhouse J