Powell v Police [2012] NZHC 136 (15 February 2012)

High Court of New Zealand

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Powell v Police [2012] NZHC 136 (15 February 2012)

Last Updated: 1 April 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-075-000569 [2012] NZHC 136

BETWEEN DANIEL MARK POWELL Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 13 February 2012

Appearances: M P Hislop for Appellant

C Merrick for Respondent

Judgment: 15 February 2012

_{JUDGMENT OF COURTNEY J}

This judgment was delivered by Justice Courtney on 13 February 2012 at 15 February 3:00 pm pursuant to R 11.5 of the High Court Rules.

Registrar / Deputy Registrar

Date............................

Solicitors: Meredith Connell, P O Box 2213, Auckland 1140

Fax: [phone] – C Merrick

Counsel: M Hislop, P O Box 210 Shortland Street, Auckland

_{Fax: [phone]}

POWELL V NZ POLICE HC AK CRI-2011-075-000569 [15 February 2012]

[1] Daniel Mark Powell was stopped by police in Tairua on 23 June 2011. He was disqualified from driving at that time, having been indefinitely disqualified from driving in December 1997 following a conviction for driving with excess breath alcohol. Mr Powell pleaded guilty to one charge of driving while disqualified.[1]

Judge C Ryan imposed a sentence of nine months’ supervision and 200 hours community work, which Mr Powell has appealed on the ground that the sentence was manifestly excessive in that Mr Powell does not require supervision and is unable to do community work due to ill health.[2]

[2] The appeal is brought pursuant to s 115 of the Summary Proceedings Act

1957 which confers a general right of appeal against conviction and sentence. An appeal is conducted by way of rehearing[3] and this Court has the power to confirm the sentence or quash or vary the sentence. Because the sentence required the exercise of judicial discretion this Court can only interfere on appeal if there has been an error of law or principle or if the Judge took account of irrelevant considerations, failed to take account of a relevant consideration or the decision was plainly wrong.[4]

[3] In sentencing Judge Ryan recorded the facts relevant to Mr Powells’ status as an indefinitely disqualified driver and noted his admissions to the Probation Officer to the effect that he had knowingly taken the risk of driving while disqualified, did not consider it to be an especially serious matter and believed that the police had blown it out of all proportion. In light of that attitude and the fact that Mr Powell had seemed unable to take the necessary steps to get his licence back, the Judge considered supervision to be an appropriate therapeutic intervention. In terms of deterrence she said:

... In view of your history of offending, there also needs to be a deterrent part of the sentence I impose. I note you have had difficulty completing community work before but in my view Probation can take on board your health issues and re-arrange appropriate placements for community work.

[4] I am not able to impose community detention on you since you live on Waiheke Island but that would be too restrictive a sentence in any event for this offending and of course I am not going to jail you for this taking into account your guilty plea and the need for therapeutic intervention, but I consider that a term of community work is also appropriate as well and is the least restrictive outcome taking into account this is your second occasion and given your history of offending.

[4] Although Mr Hislop had instructions to appeal the sentence of supervision, he conceded that there was no basis for asserting error by the Judge in relation to that aspect. The term of supervision was specifically imposed to assist Mr Powell to regain his licence and avoid further drink driving offending. I do not need to deal further with that aspect of the appeal.

[5] The focus of Mr Hislop’s submissions was the difficulty Mr Powell may encounter in completing the sentence of community work because of his medical conditions. Mr Hislop queried whether Judge Ryan had sufficient information before her regarding Mr Powell’s medical conditions. The Judge did not refer to the conditions in any detail so it is difficult to know the extent of the information that was provided on the day, particularly since Mr Powell was unrepresented at the sentencing and had not thought to place information about his medical conditions before the Judge. The pre-sentence report did not go into detail about Mr Powell’s medical conditions, commenting only on Mr Powell’s assertion that his ill-health would preclude him from completing community work but pointing out that on Mr Powell’s own account he works sporadically on a farm for a friend and in 2008 had completed a community work sentence of 150 hours.

[6] For the purposes of the appeal Mr Hislop provided, without objection from the Police, an affidavit by Mr Powell and a letter from this doctor. Mr Powell has explained that he has both a serious heart complaint and an abdominal hernia. He also comments his completion of a sentence of community work in 2008 resulted in kidney stones. He is concerned that the current sentence will adversely affect his health. The letter from Mr Powell’s doctor, Dr Potts, advises that:

Daniel is a patient at our medical centre and is on the invalids benefit for a severe heart condition and also has a chronic abdominal hernia. He is not medically fit to do community service.

[7] Mr Hislop submitted that if the Judge had had this information, the sentence of community work might have been regarded as unsuitable. I am not convinced that the additional information would have resulted in any different sentence. Although I have been provided with a little more information that was available to Judge Ryan, it is still very limited. In particular, the bald statement by Dr Potts that Mr Powell is not suitable for community work without any indication as to what type of tasks he is capable of makes it difficult to form a clear view about Mr Powell’s capabilities.

[8] The Judge was aware that there were medical issues to take into account. Under s 56 (3) of the Sentencing Act 2002 the Court may assume that suitable work is available under a sentence of community work unless advised otherwise by a probation officer. The pre-sentence report had specifically recommended a sentence of supervision combined with community work. The Judge expressly directed that Mr Powell’s health issues be considered by the probation officers in determining the kind of work that Mr Powell would do.

[9] I do not consider that the imposition of community work in itself was an inappropriate response. Mr Powell made it plain in his interview for the pre- sentence report that he did not regard his offending as worthy of either remorse or sanction. This is not withstanding a previous sentence of community work imposed for the same offence. Mr Powell has had nearly 15 years to take steps to regain his licence. He appears to have not been working for most of that time and at least in recent years has had some family support, with his daughter and her partner living close by. Community work can be undertaken in a variety of ways and the Probation Service clearly considers that it is possible to find a form of community work that is within Mr Powell’s capability.

[10] The only issue that I can see is whether 200 hours was an appropriate length of time to impose for community work. In this regard Mr Hislop drew my attention to Keane J’s decision in Maeva v NZ Police.[5] In that case Keane J quashed an order

_{of 200 hours community work and substituted 140 hours for a third conviction for}

driving while disqualified. However, although the circumstances of the offending itself has similarities with Mr Powell’s case there were many other aspects in the Maeva case which do not appear in the present case. In particular, 60 hours of the community work was imposed in lieu of disqualification and there were public interest issues that the Judge took account of, such as enabling Mr Maeva to take up employment and his responsibilities as sole parent for two young children.

[11] In this case, given Mr Powell’s quite serious driving record and the level of

the previous community work sentence, I am not satisfied that the sentence imposed was excessive. The appeal is dismissed.

P Courtney J

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[1] _{S 32(1)(A) and 32(3) of the Land Transport Act 1998.}
[2] _{District Court Auckland CRI-2011-075-000569 19 October 2011.}
[3] _{S 119 SPA.}

[4] Blackstone v Blackstone [2008] NZCA 312, (2009) 19 PRNZ 40 at [8]; Austin Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141; Kacem v Bashir [2010] NZSC 112, [2010] NZFLR 884.

[5] Maeva v NZ Police HC Auckland CRI-2010-404-402, 11 March 2011.