Apiti v Police [2013] NZHC 2349 (10 September 2013)

Last Updated: 27 September 2013

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2013-419-0027 [2013] NZHC 2349

BETWEEN DEAN APITI Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 9 September 2013

Appearances: L F Walkington for Appellant

S N Cameron for Respondent

Judgment: 10 September 2013

_{JUDGMENT OF PETERS J}

This judgment was delivered by Justice Peters on 10 September 2013 at 12 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date: ...................................

Solicitors: Almao Douch, Crown Solicitor, Hamilton

_{Counsel: L F Walkington, Hamilton}

APITI v POLICE [2013] NZHC 2349 [10 September 2013]

[1] I heard this appeal yesterday. At the conclusion of the hearing I allowed the appeal and said that my reasons would follow, as they now do.

Introduction

[2] The Appellant was charged with driving while disqualified from holding or obtaining a driver licence (3rd or subsequent offence).1 As a general rule, conviction on this offence leads to a further period of disqualification for at least one year.2

[3] The Appellant pleaded guilty to the offence in March 2013 and was to be sentenced on 29 May 2013. As I understand it from counsel, about a week before that date she had filed written submissions seeking an order pursuant to s 94 Land Transport Act 1998 (“Act”) and an affidavit in support sworn by the Appellant on

1 May 2013 (“Appellant’s affidavit”).

[4] Subject to matters going to jurisdiction, s 94 confers discretion on the Court to impose a community-based sentence in lieu of a period of disqualification.3

Counsel for the Appellant informed me that Judge P R Connell (who determined the matter) heard from the parties on jurisdiction and briefly on the merits. The Judge delivered a reserved decision on 14 June 2013 determining jurisdiction in the Appellant’s favour, but declining the application. The Judge disqualified the Appellant for 12 months from the date of sentence and sentenced the Appellant to

80 hours’ community work. The period of disqualification has been suspended pending determination of this appeal.

[5] The Appellant appeals against the Judge’s refusal on the ground that he failed to give sufficient weight to relevant factors and, accordingly, erred in the exercise of his discretion under s 94. Although the Crown opposes the appeal, the Police took a “neutral stance” at first instance4 and Crown counsel advised me that the Crown was

_{content to leave the appeal in the Court’s hands.}

1 _{Land Transport Act 1998, ss 1(a) and 32(4).}

2 _{Ibid, s 32(4)(b).}

3 _{Ibid, s 94.}

4 Police v Apiti DC Hamilton CRI-2012-091-3344, 14 June 2012, at [28].

[6] For reasons given below, I accept counsel for the Appellant’s submission that the appeal should be allowed. One matter that has concerned me, however, is whether the Judge had the Appellant’s affidavit before him. The Court’s copy of the affidavit was not on the file before me and it is not referred to expressly in the District Court judgment so it may be that the Judge was unaware of it.

Section 94 of the Act

[7] As I have said, s 94 allows the Court to impose a community-based sentence in lieu of disqualification. Assuming the jurisdictional prerequisites are met, the Court may make such an order if, having regard to four matters listed in s 94(1)(b), it considers it would be inappropriate to impose a period of disqualification and that it would be appropriate to sentence the offender to a community-based sentence. The relevant parts of the s 94 provide:

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) ... (4) ...

Background

[8] The period of disqualification that the Appellant had breached was for a

12 month period and was imposed on 28 October 2011, following the Appellant’s

conviction for driving with excess breath alcohol (3rd or subsequent offence).

[9] The breach of this period of disqualification occurred in Wellington on

4 October 2012, so a bit less than four weeks before the period of disqualification expired. The Appellant had recently commenced employment with a transport company, the truck he was driving became stuck on a difficult and hilly road, the Police were called to assist and the offending was discovered.

Judge’s decision

[10] I turn now to the Judge’s consideration of the matters listed in s 94(1)(b).

_{[11] As to s 94(1)(b)(i), the Judge said that:}5

5 Ibid, at [20] – [21].

[20] While [the Appellant] was near the end of his disqualification it is noted there was significant premeditation in his actions. [The Appellant] sought out a job in the transport industry before his disqualification period had finished. He was well aware that he could not drive, yet chose to take up employment where he would be required to. He had other options available to him such as seeking a later start date but chose not to. I consider, while the temptation to drive would have been strong, through these actions [the Appellant] helped created that temptation. It is also of concern that his employer was not aware of his disqualification. It is believed this premeditation, along with the length of the trip and that fact that he was driving “commercially”, are significantly aggravating factors.

[21] It is further noted police were called to the scene as [the Appellant] had manoeuvred his vehicle into a situation where it was creating a hazard for other motorists.

[12] Further on in the judgment the Judge said he had:6

... insufficient detail to draw an inference that [the Appellant] was dishonest, but either he told his prospective employer he had a licence, or he withheld the knowledge that he did not have one to get the position that he had at the time of being apprehended for driving whilst disqualified.

[13] I am unable to discern the evidential basis for several of the statements that the Judge made.

[14] In his affidavit the Appellant states:7

2.0 ... I spoke with WINZ who encouraged me to get some qualifications, directed me to seek funding through Study Link, with the goal being a career in trucking. I got my HT licence and also enrolled with Tai Polytechnic and received my “Wheels Tracks and Rollers licences and a number of other qualifications in 2011” ...

3.0 In July 2011 I was caught drink driving ... alcohol has been the bane of my life. I decided to stop drinking alcohol, and have not drunk since. Despite this set back, I decided to continue with my studies seeing I was already half way through. I still owe Study Link approximately $9,000. ...

6.0 It was only a week before the recent charge that I went to an interview for a trucking job and was successful. I was told that I could have the job, but needed to start immediately. I accept I should not have started work until the end of October. It was the first day of the job when the GPS incorrectly took me over the Paekakariki Hill Road route to Upper Hutt, the truck got stuck and the attending police officer learned that I was a disqualified driver.

6 _{Ibid, at [27].}

7 Affidavit of D Apiti sworn 1 May 2013.

7.0 I was immediately sacked. However at the end of October [2012] when I got my licence back I was most fortunate in being offered another job with ...

[15] There was no basis for the Judge to conclude that it was open to the Appellant to seek a later starting date, given the (unchallenged) evidence in [6] of the Appellant’s affidavit. There is no evidence as to what the Appellant told his employer before accepting the job, nor as to the enquiries that the employer made of the Appellant prior to offering the job. Also, for myself, I would not have considered the fact that the Appellant was driving “commercially” to be a significantly aggravating factor. That is because there are obvious benefits in people being in paid employment.

[16] Nor is there evidence that the Appellant “manoeuvred his vehicle into a situation where it was causing a hazard for other motorists”.8 The summary of facts before the Court confirms the evidence in the Appellant’s affidavit. It states that the Appellant “had followed the instructions of his GPS [system] without knowing the road was very narrow and winding”. The summary does not state that the vehicle was a “hazard”.

[17] As to s 94(1)(b)(ii) the Judge referred to breaches of previous periods of disqualification and recorded that the Appellant had a history of non-compliance.

[18] As to s 94(1)(b)(iii) the Judge noted that further disqualification would mean the Appellant could not pursue his employment. The Judge said he considered it “ironic” that the Appellant had “trained himself and gained employment in the transport industry”. Ironic or not, the fact is that this is the industry in which the Appellant has become qualified to work and he has done so with the encouragement of WINZ.

[19] As to s 94(1)(b)(iv), the Judge recorded counsel for the Appellant’s submission that the public interest lay in the Appellant maintaining employment. Counsel also submitted that the Appellant had not caused a threat to the safety of the

_community.

8 Police v Apiti, above n 4, at [21].

[20] The Judge also referred to the Appellant’s history of traffic offences, many of which are for driving with excess breath or blood alcohol, but recorded these matters do not preclude it being in the public interest to make an order under s 94.

Judge’s conclusion

[21] The Judge stated that this was not “a clear case where community work should be granted”, that being a reference to Asher J’s decision in Emani v Police.9

The Judge concluded that the Appellant had no regard for public safety in the commission of the offence and should not receive a sentence of community work. Again, and as I have said, I cannot discern the evidential basis for concluding that there had been a lack of regard for public safety.

Appeal

[22] Counsel for the Appellant drew my attention to many of the matters to which

I have referred above. In addition to those she made two other main submissions

[23] First, counsel submitted that the Judge did not appear to have appreciated that the Appellant’s main motivation was economic and that it was not combined with any other offending. I consider that the Judge was aware that the Appellant’s motivation was economic but he has taken the view that it was an aggravating feature of the offending, rather than one which mitigated it. Counsel also stated that the Judge had referred to Massold v Police10 as an authority against the Appellant. I accept counsel’s submission that in fact that case might be read as supporting the Appellant’s application. In that case, the offender had been out of New Zealand for a

substantial part of the period of disqualification imposed upon him. He returned to New Zealand but was unable to resist driving, even for short period. Duffy J drew a distinction between the offender in that case and “someone who has faithfully complied with a disqualification of almost a year, and then towards the very end of

the period failed for some reason”.11 I accept counsel’s submission that Massold is

_{not an authority against the Appellant.}

9 _{Emani v Police HC Auckland CRI-2009-404-235, 28 September 2010.}

10 _{Massold v Police HC Auckland CRI-2010-404-346, 8 December 2010.}

11 Ibid, at [7].

[24] Secondly, counsel referred to the Judge’s comment that the Appellant’s actions in obtaining a driving job while still disqualified showed “significant premeditation”. Again, her submission is that the Appellant’s evidence as to how he had come to be qualified in the industry and the economic imperatives he believed he faced were such that this was an unfair characterisation by the Judge. I accept that submission.

Decision

[25] I am satisfied that the Judge did err in his consideration of the Appellant’s application. I am not satisfied that the Judge took into account all of the evidence in the Appellant’s affidavit (if indeed he had it before him) or that he gave that evidence sufficient weight in his consideration of the matters listed in s 94(1)(b). I also consider that the Judge treated as aggravating factors matters that were irrelevant in the context of the Appellant’s application.

[26] Given that, I am satisfied that it is appropriate to consider the matter afresh.

[27] Having regard to the matters in s 94(1)(b) I am satisfied that it would be inappropriate to impose a period of disqualification. Aside from anything else, the public interest lies firmly in the Appellant being employed. I do not consider the circumstances in which the Appellant accepted employment or the circumstances in which the offending was discovered to be aggravating factors. I am also satisfied that it would be appropriate to sentence the Appellant to a community-based sentence.

[28] I allow this appeal and quash the Judge’s order for disqualification. In accordance with the submission of both counsel, I increase the hours of community work imposed by the Judge from 80 to 120.

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

M Peters J