Davis v Police [2014] NZHC 2568 (20 October 2014)

Last Updated: 28 October 2014

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI 2014-425-000025 [2014] NZHC 2568

REWI JAMES DAVIS Appellant

v

POLICE Respondent

Hearing:	20 October 2014
Counsel:	JAT Ross and R Davis for Appellant M-J Thomas for Respondent
Judgment:	20 October 2014

_{JUDGMENT OF WHATA J}

[1] Rewi James Davis seeks to appeal, almost 44 years out of time, his sentence of 14 days imprisonment for driving while under the influence of drink, then an offence pursuant to s 58 of the Transport Act 1962. Mr Davis says that this sentence is manifestly excessive and unjust.

[2] I must determine therefore whether it is appropriate to grant leave to pursue the appeal and if so whether the sentence of 14 days imprisonment was manifestly excessive. The resolution of both issues turns on an assessment of the overall

_{interests of justice.}

DAVIS v POLICE [2014] NZHC 2568 [20 October 2014]

Facts

[3] One of the problems with an appeal lodged 44 years out of time is that there is no record of process by which the decision was reached or a record of the reasons for the sentence.

[4] Be that as it may, the circumstances of the offence are reasonably clear. As set out in the submissions helpfully provided by Mr Ross, on 1 August 1970, Mr Davis was in Bluff unloading crayfish and provisioning the crayfish boat. After work he went to the pub with his boss. They drank alcohol and Mr Davis’ boss offered him an old truck to drive home and he took up that offer.

[5] On the way home Mr Davis was stopped by traffic officers. He was required to undergo a breath test which returned a positive result. The results of the blood test returned a high reading, namely 230 micrograms of alcohol per 100 millilitres of blood.

[6] There are other facts referred to in an affidavit evidence of Mr Davis including that he cooperated with the police. But these facts cannot be verified by independent information. Mr Davis has also given evidence that he was surprised at the sentence given that he had no prior convictions. This is to be compared with a newspaper report of Mr Davis’ conviction and sentence which purports to quote the Magistrate as saying:

.... [Mr Davis’] past driving record is a bad one.

Grounds of appeal

[7] The grounds of appeal are listed as follows:

(a) The Learned Stipendiary Magistrate made an error in sentence by imposing a 14-day period of imprisonment.

(b) The sentence of 14 days imprisonment was manifestly excessive for the following reasons:

(i) The term of imprisonment was a substantially more severe sentence than ought to have been imposed in light of the seriousness of the offence, the Appellant’s culpability, and his personal circumstances;

(ii) The Criminal Justice Act 1954 (CJA 1954) provided a strong presumption against imprisonment; and

(iii) The Court at the time dealt with other similar offenders by imposing fines and the Appellant was able to pay a significant fine.

[8] Mr Ross for the appellant submits that I should adopt the following approach:

a. Consider the application and appeal de novo;

b. Consider whether to grant the Appellant’s application for leave to

this appeal out of time;

c. If moved to grant the application, consider the merits of the appeal by assessing whether the Appellant received a manifestly excessive sentence; and

d. If satisfied that the Appellant’s sentence was manifestly excessive,

quash the sentence of imprisonment.

[9] I reject the suggestion that I should approach this matter de novo. That would in effect circumvent the provision designed to have appeals heard within a specified timeframe. Mr Ross nevertheless suggests that the issue of the absence of a record is a reason for which I might proceed de novo. But that is in fact a good reason why there are strict limitations of time for appeals, that is, to avoid this type of problem. In any event, I could not hear the matter de novo without evidence from the police and it is not reasonable to expect the police to produce that evidence after such a significant delay.

[10] I therefore turn to consider whether or not I should grant leave for the appeal to be heard out of time.

Jurisdiction to extend time

[11] The principles guiding the jurisdiction to grant an extension of time are reasonably well settled. As submitted by Ms Thomas for the Crown and citing Police v Hill the following key issues must be considered:¹

(a) whether the failure to file the necessary appeal papers within time has arisen in circumstances which ought reasonably to be excused;

¹ Police v Hill [1990] 6 CRNZ 280 HC.

(b) whether the proposed respondent has suffered any prejudice by the delay, being prejudice of a kind other than what is inherent in the extension of time itself;

(c) whether the proposed appeal has sufficient prima facie merit and in the case of an appeal on a point of law, sufficient prima facie utility and justice exists to warrant the extension of time sought; and

(d) such other matters as may bear on the exercise of the discretion in the particular case.

[12] I also accept Ms Thomas’ general submission that the overall interests of justice in a particular case may call for balancing the wider interests of society and finality of decisions against the interests of the individual applicant in having the conviction reviewed.

[13] It is generally accepted that the onus is on the appellant to show special circumstances why a decision or sentence should not stand.² Having said that, in my view, the rule of law demands correction of a sentence wrongly imposed, and if proven, provides a strong basis for the grant of leave out of time.

[14] Turning then to each of the relevant issues.

Reasonable excuse

[15] Mr Davis states that he decided to see out the prison sentence as he had no idea in 1970 that it would have consequences for him 44 years down the line. That does not obviously present a compelling reason to allow an appeal in 2014. The further context to this, however, is that Mr Davis only recently began to feel the full impact of the term of imprisonment. Mr Davis must travel regularly to take up employment as an oil rig manager. He says this appears to have become more

_{difficult since the events of 9/11. He says that unlike his colleagues who do not have}

2. Cleggs Ltd v Department of Internal Affairs HC Aucvkland M1032/84, 5 September 1981; also cited in Douglas v New Zealand Police [2013] NZHC 186.

sentences of imprisonment to their names, there appear to be additional hurdles to him obtaining work visas. For example:

19. Shortly, I commence work at Las Palmas, Spain, an island off the west coast of Morocco. I am currently having an issue with my Visa. In January 2014, I applied for a 365-day Visa. There has been a long delay in having that Visa processed. The delay continues. I have spoken to colleagues who applied at the same time. They have had no issues in receiving their Visas. I have now been told that, although I am likely to receive a Visa, it is only likely to be for six months. This is a one-year job meaning that I will need to re-apply for another six-month Visa, half way through the job.

[16] One further aspect is that Mr Davis was only 18 at the time of the offending and that might explain why he did not take up the opportunity to appeal at the time. Even so, only a shallow basis has been afforded for the purposes of explaining the delay in bringing the appeal.

Prejudice

[17] Prejudice to the Crown caused by the delay remains a significant hurdle to overcome. As Ms Thomas submitted we cannot know the reasons for the sentence of imprisonment, because after 44 years we have no summary of facts or record of the reasons for the decision. Accordingly the Crown is effectively hamstrung in its ability to defend the decision of the Magistrate on appeal. I consider this to be a very strong factor against the granting of leave to appeal.

Prima facie case

[18] On the available facts, Mr Davis has a strong basis for appeal. The then statutory threshold for a term of imprisonment was very high. In short, s 43A and s 14 of the Criminal Justice Act 1954 individually and in combination imposed a statutory obligation to make a non-custodial sentence unless only imprisonment is

_appropriate.³ _{As Ms Thomas I think accepted it is very difficult to conceive of a case}

³ 43A Restrictions on imprisonment

(1) No Court shall sentence any person to imprisonment for a term of less than six months unless, having regard to all the circumstances of the case, including the nature of the person’s offence and his character and personal history, the Court has formed the opinion that no way of dealing with him other than imprisonment is appropriate.

where imprisonment of a youth for drink driving simplicter (ie without obvious aggravating features to the offending, eg damage or injury or a prior history of driving related convictions) is justified. Indeed counsel could not find a single case where this had occurred, and of the 11 reported cases on this type of offending only one offender received a sentence of periodic detention. Some of the offending also involved a vehicle crashing. Accordingly, had this matter come to me in the usual way, and the facts of the offending and the offender were limited as described in the appellant’s evidence, I would have allowed the appeal against sentence as manifestly excessive.

[19] But therein lies the problem for the appellant. To proceed on the appellant’s evidence alone would be unfair to the Crown. The Crown quite properly does not accept the facts as laid out by the appellant. It does not do so to be obstructive. Rather it cannot simply accept those facts as a given in the proper discharge of its obligations to the administration of justice. It may well be that there were peculiar aspects to the offending and to Mr Davis that were before the Magistrate that are not before me. Given the amount of time and the understandable loss of key records, we cannot know whether that is so. But it would do an injustice to both the prosecution and to the Magistrate to simply assume there was nothing more that might warrant

_{the term of imprisonment.}

(2) Subsection (1) of this section –

(a) Is in addition to section 14 of this Act in relation to a person appearing to be under the age of twenty-one years:

(b) Shall not apply in any case where, pursuant to the express provisions of any enactment, the

Court is required to sentence a person to imprisonment.

14 Restrictions on imprisonment detention of persons under twenty-one years of age

(1) Repealed.

(2) No District Court Judge knowing any person to be under the age of twenty-one years shall issue a warrant of commitment in respect of the default of sufficient distress to satisfy any sum adjudged or order to be paid by that person unless, having regard to the character and personal history and to all the circumstances of the case, the District Court Judge has formed the opinion that he should be imprisoned notwithstanding his age.

(3) References in this section to a sum adjudged or ordered to be paid include references to any sum of money adjudged or ordered to be paid by any conviction or order, whether as a fine or for costs or otherwise.

[20] The appeal therefore proceeds on a flawed premise, namely that I am able to properly proceed on the facts as claimed. That being the case, while the appeal has significant theoretical merit, ultimately the appeal cannot succeed.

Interests of justice

[21] Standing back from the minutiae, I am naturally concerned that a young man of 18 was imprisoned on a first conviction for driving under the influence when comparable convictions did not attract such a sentence. There is also evidence that a

45 year old man was sentenced on the same day by the same Magistrate to a fine of

$175 and disqualified from driving for three years.⁴ The man was “seen drinking

from a beer bottle while he drove” and “had a blood alcohol content of 210 mg per

100ml”. The difference in sentence on the face of the available facts is perverse, strongly suggesting that something has gone wrong with the sentence imposed on Mr Davis. Ordinarily it would be in the interests of justice to fully test the reason for the different treatment, and as noted, the imposition of a term of imprisonment in the face of ss 43A and 14 of the Criminal Justice Act.

[22] Balanced against this, the police and the Crown are also entitled to the application of the principles of fairness. By dint of the extraordinary delay in bringing this appeal they have been deprived of the ability to fully defend the sentence. Sitting here now it is difficult to conceive of circumstances where a young person of 18 with no prior convictions should be imprisoned for drink driving that caused no reported injury or damage. But there is at least some evidence that the Magistrate took into account a “bad driving record”. So I cannot say that the police had no prospect of successfully defending the appeal with the benefit of the full record.

[23] My position would have been different had the loss of records arisen out of the unreasonable conduct of the police or the Court. But that is not the case, and the apparent injustice to Mr Davis is largely offset by the injustice caused by the elapse

_{of time. In this regard I also think there is some conjecture on Mr Davis’ part that}

4. A copy of a newspaper report was produced without objection purporting to record the sentence for both Mr Davis and:

A 45-year-old fisherman who was seen drinking from a beer bottle while he drove along the

North road, was fined $175 and disqualified from driving for three years.

the term of imprisonment is the factor most influencing overseas agencies. It could well be because he has more than one conviction and that is causing consternation.

[24] For completeness, Mr Ross helpfully provided a survey of case law on s 14, after the hearing. This reinforced the significance attached to youth when sentencing. It, however, also served to highlight the importance of the facts in each case. As the Court of Appeal said in R v Halliday: ⁵

We desire to add that it is the opinion of the Court, and in this there is unanimity, that the section [s 14] is not to be interpreted as precluding a sentence of imprisonment upon a youthful offender for this or for other offences. It may or may not be warranted. Each case must be carefully considered on its own particular facts.

Result

[25] For the reasons given, I do not allow the extension of time to bring the appeal. In short, the appeal proceeds on a false premise that the facts of the offending and the reasons for the sentence of imprisonment can be fairly discerned from the available information. That is not the case. Further, the elapse of time and the loss of records mean that both the Crown and the police are unable to defend the appeal. In those circumstances it would be unjust to allow the extension of time.

[26] I wish to record nevertheless that the sentence of imprisonment imposed on Mr Davis for driving under the influence of alcohol appears on all the available information to be excessive and in breach of the then requirement to impose a non custodial sentence on a young person unless imprisonment was the only appropriate option. Regrettably the unreasonable delay in filing the appeal, and the loss of

_{records, has meant that I am unable to make any final determination in his favour.}

⁵ R v Halliday [1958] NZLR 1036 (CA).

[27] Accordingly, I decline to grant the appellant leave to appeal out of time, and the appeal is dismissed.

Solicitors:

AWS Legal, Invercargill

Preston Russell, Invercargill