Wadsworth v Police [2014] NZHC 3302 (18 December 2014)

Last Updated: 23 December 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2014-404-000345 [2014] NZHC 3302

BETWEEN	NICOLE LOUISE WADSWORTH Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	16 December 2014
Appearances:	L Johnson for the Appellant RMA McCoubrey for the Respondent
Judgment:	18 December 2014

_{[RESERVED] JUDGMENT OF WYLIE J}

This judgment was delivered by Justice Wylie on 18 December 2014 at 11.00 am

Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

_Date:

WADSWORTH v POLICE [2014] NZHC 3302 [18 December 2014]

Introduction

[1] The appellant, Ms Wadsworth, appeals a decision made by Judge S J Coyle in the District Court at Auckland on 7 October 2014, declining an application under s 94 of the Land Transport Act 1998, and instead imposing a further period of disqualification from driving.

Factual background

[2] Ms Wadsworth had been disqualified from driving for a period of six months on 8 May 2014, after pleading guilty to one charge of driving with excess breath alcohol in August 2012.

[3] On 8 July 2014, Ms Wadsworth was stopped while she was driving at State Highway 20 at Onehunga. She was not stopped because of the way in which she was driving. When spoken to by the police, she stated that she was returning from Middlemore Hospital, after visiting a sick relative.

[4] Ms Wadsworth was charged with driving while disqualified pursuant to s 32(1) of the Land Transport Act. The maximum penalty for this offence is three months’ imprisonment or a fine not exceeding $4,500. The court must, in addition, order that the offender is disqualified from driving for a minimum period of six months.

[5] Ms Wadsworth pleaded guilty at her first appearance on 7 August 2014. She appeared for sentence on 7 October 2014. An application was made on her behalf for the Court to impose a community-based sentence instead of a further period of disqualification under s 94. As noted above, that application was unsuccessful.

District Court Decision

[6] Judge Coyle considered the relevant facts. He summarised s 94 and set out the various matters which the Court is required to consider pursuant to s 94(1). He then proceeded to consider each of the considerations identified in s 94(1)(b).

[7] In regard to s 94(1)(b)(ii) – the effectiveness or otherwise of the previous order of disqualification made against Ms Wadsworth – Judge Coyle noted as follows:

[9] The effectiveness of the current order of disqualification has really been minimal. It has not acted as a deterrent to you for further offending and, as I have said to your counsel, this really is just blatant offending during a period in which you knew you were disqualified. It is submitted on your behalf that disqualification has not been effective and the evidence of that, it is submitted, is the very fact that you are before the Court on the charge of driving while disqualified committed only two months after disqualification was imposed.

[10] That submission, in my view, is not one that I agree with. For if the Court is going to measure the efficacy of periods of disqualification as to whether someone can be bothered complying with it or not, then that is a very poor test. The simple reality is, as I have said, this is a case of you blatantly driving when you should not have been driving.

[8] In considering s 94(1)(b)(iii) – the likely effect on Ms Wadsworth – Judge Coyle confined his consideration to the difficulty a further period of disqualification would pose for Ms Wadsworth as a mother of three children, who has to transport her children effectively and safely.

[9] In considering the interests of the public – s 94(1)(b)(iv) – Judge Coyle acknowledged that there were no safety concerns arising out of Ms Wadsworth driving. Rather he observed that the public has an interest in ensuring that court orders are complied with.

[10] Judge Coyle considered that Ms Wadsworth was before the Court because of the choice she had made. He accepted that disqualification was causing her hardship, but noted that public transport was available which she could have used to get to Middlemore Hospital, and that she had simply chosen not to utilise it. He considered that she was in no different position from other persons who regularly appeared before the courts who are disqualified from driving, and then choose to drive. He took the view that because the offending was blatant, it would be improper for him to exercise his discretion under s 94.

[11] Judge Coyle did not confiscate Ms Wadsworth’s vehicle pursuant to s 129 of the Land Transport Act, because he accepted that confiscation would cause undue hardship to her and her family.

Submissions

[12] Ms Johnson, appearing for Ms Wadsworth, submitted that Judge Coyle erred in considering the effectiveness of her previous order of disqualification, and further that he failed to consider the effect of further disqualification on Ms Wadsworth’s prospects of obtaining employment. She also asserted that Judge Coyle erred in considering the public interest, and that he failed to take into account the fact that the police were neutral in regard to the s 94 application.

[13] Mr McCoubrey, for the police, submitted that the decision made by Judge Coyle was made in the exercise of a discretion, and that the grounds on which the Court should intervene were accordingly limited. He argued that the conclusions reached by Judge Coyle were conclusions that he was entitled to reach, and that there was no proper basis on which the Court could or should intervene.

Analysis

[14] Relevantly, s 94 provides 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]

...

[15] It is clear from s 32 that the starting point is an order of disqualification in cases such as this. That starting point is, however, subject to the discretion to substitute a sentence of disqualification with a community-based sentence under s 94. The discretion conferred by s 94 is broad. It requires essentially that the circumstances make disqualification inappropriate, and a community-based sentence

appropriate.¹

[16] Ms Johnson accepted that an appeal against the refusal to grant an application pursuant to s 94 is an appeal against the exercise of a discretion, and that accordingly it must be shown that the sentencing Judge erred in exercising the discretion by taking into account irrelevant considerations, failing to have regard to relevant considerations, making an error in principle, or reaching a decision which is plainly

wrong.²

[17] Section 94 sets out four criteria that the Court is required to consider. Those criteria are broadly framed. I propose to look at each in turn.

Section 94(1)(b)(i)

[18] This criterion is ambiguous and it can pose some difficulty.³ The subsection was presumably intended to accommodate the situation where it is inappropriate to order further disqualification, because the offender is caught in a cycle of offending

_{of driving while disqualified. Imposing a community-based sentence may break that}

¹ _{Police v Body [2013] NZHC 1586 at 7.}

² Maeva v Police HC Auckland CRI-2010-404-402, 11 March 2013 at 13 and Tusami v Police

_{[2013] NZHC 1961 at [12].}

³ Thomas v Police HC Tauranga CRI-2010-470-14, 13 May 2010 at [21].

cycle. However, it is clear from the section, and the courts have held, that s 94 is not intended to apply only to people who may be caught in a cycle of driving while disqualified, but also to others who meet the criteria in the section.⁴ The section is capable of applying to any person who has at least one previous disqualification, unless s 94(4) applies.⁵

[19] While I can readily appreciate the sentiments expressed by Judge Coyle and noted in [7] above, in my judgment, he did not properly analyse the section, because s 94 can only be invoked where a previous order of disqualification has proved ineffective. To my mind, the s 94(1)(b)(ii) is aimed more at the attitude the offender has evinced to the previous order of disqualification. If the offender has treated the previous order in a cavalier fashion, there may well be little point in imposing an additional period of disqualification. This runs into the consideration required by s 94(1)(b)(iii).

[20] In the present case, the previous order for disqualification imposed on Ms Wadsworth was ineffective, because she drove while disqualified on 8 July 2014. However, there is nothing to suggest that such driving was repeated. Indeed, in an affidavit filed in support of her application before the District Court, Ms Wadsworth was at pains to explain that she had only driven to Middlemore Hospital because her great aunt was very sick, and because nobody else from her family could get to the hospital. She said that she knew that she should not have driven, but she was desperate to see her aunt in case she did not get another chance to do so. She acknowledged that she was a disqualified driver, and that she should not have driven on the day. She also confirmed that she understood that her actions were wrong, and that she had learnt a valuable lesson and that she would never drive while disqualified again.

[21] The affidavit filed suggests that the previous order of disqualification had been, at least to an extent, effective, albeit that on one occasion, Ms Wadsworth had

_{driven while disqualified.}

⁴ _{Police v Body above n 1, at [5].}

⁵ Beatson v Police [2012] NZHC 1064 at 24, and Police v Body above n 1, at [12].

[22] In my view, while Judge Coyle erred in his approach to the criterion identified in s 94(1)(b)(ii), the end result is not particularly helpful to Ms Wadsworth. Her contrition suggests that the initial period of disqualification was not entirely ineffective and that a further disqualification is likely to be effective.

[23] Turning to s 94(1)(b)(iii), Ms Johnson submitted that Judge Coyle erred in failing to consider the effect of a further period of disqualification on Ms Wadsworth’s employment prospects.

[24] Ms Johnson is correct that Judge Coyle did not refer to Ms Wadsworth’s employment prospects. However, in my view, he cannot be criticised in that regard. The only relevant evidence in this regard was contained in Ms Wadsworth’s affidavit. She stated that she was not currently working, and that she was looking after her children. She deposed that she planned to return to work in the near future, once the youngest child is old enough to be put into day care. She said that she had begun looking for work, and that she hoped to find something that would “allow her to be there for her children”.

[25] These statements are vague. There is nothing to suggest that a further period of disqualification will preclude Ms Wadsworth from obtaining employment. This situation is very different from that discussed in other cases, where the court has been prepared to accept that the situation for those ready to enter the workforce who cannot gain employment because they are disqualified from driving, is not much different to those applicants who are likely to lose their employment if they are

disqualified.⁶

[26] I am not satisfied that Judge Coyle made any error of principle in considering this criterion, or that his decision was plainly wrong.

[27] Turning to the interests of the public – s 94(1)(b)(iv) – Ms Johnson submitted that there was nothing to suggest that there were any safety concerns arising out of

_{Ms Wadsworth’s driving, and that Judge Coyle was concerned only with the public}

⁶ Yu v Police HC Auckland CRI-2006-404-723, 10 November 2006; Maeva v Police, above n 2;

Thomas v Police, above n 3.

interest in ensuring compliance with court orders. She submitted that if that was the sole criterion, every application under s 94 would fail, because the section is only engaged if an applicant has failed to comply with a court order.

[28] I acknowledge the submission made by Ms Johnson. It has some force, but I am not persuaded Judge Coyle erred in the way in which he approached the matter in this case. He acknowledged that there was no evidence of any safety concerns arising out of Ms Wadsworth’s driving. His observation that the public does have an interest in ensuring that court orders are complied with is appropriate, and cannot be criticised. Other judges may have expressed the matter in different ways, and the public interest can extend to other matters, for example, that a young person is employed, that he or she can pursue his or her chosen career, or that he or she can remain in gainful employment. While there is an interest in the public to ensure that persons who flout disqualification orders are punished, there is nothing which indicates that the only appropriate method of punishment is disqualification. It must also be recognised that there is an advantage to the public, in it being clearly understood that there will be a usual and severe punishment to the offence of driving

while disqualified – namely a further period of disqualification.⁷

[29] While Judge Coyle could have given this criterion more detailed consideration, I cannot say that Judge Coyle erred in principle, or that the final conclusion he reached was manifestly wrong.

[30] Finally, Ms Johnson submitted that Judge Coyle failed to take into account the fact that the police were neutral to the application.

[31] I do not consider that there is anything in this point. The Judge was required to make his own decision as to whether or not to exercise the discretion conferred by s 94. While the views of the police may have assisted him in that regard, he had to form his own view of the application, on the merits of the case, and on the materials

_{before the court.}

⁷ Yu v Police, above n 6, at [24].

[32] In the circumstances of this case, I am not persuaded that Judge Coyle’s decision was plainly wrong and notwithstanding that, in some respects, his analysis could have been more fulsome or better expressed.

_{[33] The appeal is declined.}

Wylie J