McColl v New Zealand Police [2014] NZHC 702 (8 April 2014)

Last Updated: 16 April 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-365 [2014] NZHC 702

BETWEEN	TERRY KEVIN McCOLL Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	7 April 2014
Counsel:	M Winterstein for Appellant B Hamlin and K Muirhead for Respondent
Judgment:	8 April 2014

_{JUDGMENT OF FOGARTY J}

This judgment was delivered by me on 8 April 2014 at 4.30 p.m., pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

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

Solicitors: Liberty Law Barristers, Manukau

Meredith Connell, Auckland

McCOLL v POLICE [2014] NZHC 702 [8 April 2014]

[1] The appellant pleaded guilty to one charge of driving while disqualified from holding or obtaining a driving licence, contrary to ss 5(1)(c) and 32(1) of the Land Transport Act 1998 (the Act). Being the appellant’s third or subsequent offence against s 31(1) and s 32(4) of the Act, required the Court to order the appellant to be disqualified from holding or obtaining a licence for one year or more.

[2] On 5 November 2013, in the District Court at Manukau, Judge Andreé Wiltens sentenced the appellant to 100 hours of community work, disqualified him from driving for 15 months and confiscated his motor vehicle. The appellant now appeals the sentence. In effect, the appeal is against the refusal of the sentencing Judge to invoke s 94 of the Act so as not to impose the otherwise mandatory further period of disqualification. The Judge did not refer to s 94 in his notes of sentencing. His full sentencing notes are as follows:

[1] You are disqualified from holding or obtaining a driving licence for

15 months from today, and 100 hours community work.

[2] It is 15 months because this is the fifth time that you have been apprehended driving while disqualified, and it is time you started obeying the law.

[3] If it happens again you are facing a term of imprisonment. [4] Do not make that mistake.

[5] So on the 129 the motor vehicle FUJ916 is confiscated.

[6] You will need to sign some forms before you can go today.

The circumstances of the offending

[3] On 16 August 2012, the appellant had been disqualified from driving for one day one year, in other words, until 17 August 2013. On 14 August 2013, he was driving a Toyota Land Cruiser, registration FU916 in Coromandel. He was stopped for a routine licence check. Police enquiries revealed he was a disqualified driver. There is nothing in the summary of facts upon which he was convicted to suggest that there was any traffic safety circumstance about the stopping. He told the police at the time that he had only four days left of his current disqualification. He was

then 37 years old and a local man, seasonal worker and what the police described as a hobby bee-keeper.

[4] The police statement noted he had previously appeared before the Court. Indeed, he has. Going back ten years, he has 11 traffic offences – three breath alcohol, three involving safety issues and three simple driving while disqualifieds.

[5] On appeal, his counsel argues that the sentencing Judge did not exercise properly his discretion to examine the merits of the application under s 94. That the sentencing Judge should have demonstrated in his reasoning having regard to all the criteria set out in s 94(1)(b). Section 94 provides:

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).

[6] Counsel for the New Zealand Police considered that it was appropriate that the Court reheard the application under s 94. I agree.

[7] Before I do, I note there can be no doubt that the Judge did consider s 94 and make a decision as it was argued before him. Clearly the Judge considered that it would not be inappropriate to order that the appellant be disqualified from driving. What we do not know is whether he had regard to all the criteria set out in s 94(b). In Yu v Police¹ Asher J points out that this Court has the power to consider the matter de novo when the issue of s 94 is not addressed in the District Court. In that case the Judge was not asked to consider the s 94 discretion. I have considered referring the matter back to be reconsidered by the Judge but am influenced by the suggestion of

Crown counsel that I rehear the application in this Court, no doubt in the interest of

_{efficient use of judicial resources. I have decided to do so.}

¹ Yu v Police HC Auckland CRI-2006-404-000273. 10 November 2006.

[8] I now turn to have regard to the four criteria in s 94(1)(b).

The circumstances of the case and of the offender

[9] I have set out the circumstances of the apprehension. The Crown agrees that there were no traffic safety issues. Turning then to the circumstances of the offender, he is 38. He lives with his parents. He is not married. He has no dependants. He financially supports himself through work that he does as a bee-keeper. It provides him with enough to live on with some assistance being provided by his parents. He attends to a number of hives of which there are 14 colonies with five honey producers and seven to eight mature colonies. He has been doing this since 2005. He also helps other bee-keepers, providing assistance to them, including the Dawson Primary School. At the primary school he charges them for the cost of producing the honey, that is, for the equipment and they keep the honey and sell them as a fundraising activity. He provided a number of letters from the people and organisations verifying this aspect of his affidavit. He seeks mercy from the Court due to his circumstances. He reports he has managed to obtain his learner’s licence and has to wait out the three-month period before he can obtain his restricted licence. He notes that the car he was driving was released to him that was impounded when he was stopped in relation to this charge. He requests the Court to consider imposing community work saying he cannot attend to his hives and for those he helps without a licence. I will return to this aspect of his case when I come to the third criterion under (b).

The effectiveness or otherwise of the previous orders of disqualification

[10] There have been numerous judgments now of the High Court analysing and explaining the function of s 94. The most recent authority provided to me is the

_{judgment of Mallon J in the case of Police v Body & ors.}²

_{It is sufficient to cite}

several paragraphs from her judgment explaining the history and, to some extent, the division of opinion between the judiciary as to the function of s 94:

[5] It is well understood that it may be inappropriate to order disqualification where a person is caught in a cycle of offending of driving while disqualified for which continued extensions of disqualification orders

² Police v Body & ors [2013] NZHC 1586.

are imposed. Imposing a community-based sentence can break that cycle.³

But the section is intended to apply not just to people who may be caught in a cycle of disqualified driving offending⁴ but to others who meet the criteria in the section.⁵ For example, the public interest in a person maintaining their employment may make a further period of disqualification inappropriate.⁶

[6] The relevant criteria in s 94 are broadly framed. In comparison with s 81 which requires “special” reasons relating only to the offence, the s 94 discretion essentially enables the Judge to take into account anything that might be relevant to whether it is appropriate to order disqualification and appropriate to instead impose a community-based sentence. It is not unexpected therefore that variations in approach as between Judges may arise. Provided the statutory criteria are properly considered the fact that two Judges might reach different views on whether a community-based sentence should be substituted does not give rise to error.⁷

[7] The starting point is that disqualification is to be ordered. But that starting point is subject to the discretion to substitute that with a community- based sentence. That discretion is a broad one. It requires only that the circumstances make disqualification inappropriate and a community-based sentence appropriate. In Lambert v Police the Judge [Fisher J] went as far as to say “it will usually be better that the penalty take some form other than an additional disqualification”.⁸ That was the view of the Judge in the present cases under appeal where there were no aggravating features in respect of the driving.⁹

...

[9] In considering that submission the decision in Lambert v Police is helpful. In that case the offender, although only 19 years of age, had seven convictions for driving offences which included three charges of driving in a dangerous manner. The District Court Judge described the offender as “inordinately prone to putting people’s safety on the road at risk”. On a charge of driving while disqualified the Judge sentenced him to six months’ imprisonment and imposed a one year disqualification order for reasons of

³ Mitchell v Police [1989] NZHC 592; (1989) 5 CRNZ 190 (HC) at 193 cited in Lambert v Police HC Rotorua

_{AP62/90, 11 October 1990 at 6 (discussing the predecessor of s 94).}

⁴ _{Maeva v New Zealand Police HC Auckland CRI-2010-404-402, 11 March 2011 at [30]-[34].}

⁵ Jukes v Police HC Christchurch AP 228/94, 5 October 1994; Rodgers v Ministry of Transport

_{[1989] 3 NZLR 321 (HC); Beeston v New Zealand Police [2012] NZHC 1064 at [11]- [25].}

⁶ _{Jukes v Police, above n 12.}

⁷ As is said in Maeva v New Zealand Police, above n 11, at [28] “In these ways s 94 is highly specific. It is also very abstract. It is not animated by any statement of purpose. It does not say why a further sentence of disqualification might be inappropriate or a community based sentence appropriate. The result is that the four factors to which I have referred, most pointedly those

going to past or future compliance with orders for disqualification, are capable of being

_{understood in diametrically opposed ways.”}

⁸ Lambert v Police, above n 10, at 6. Compare with Yu v New Zealand Police HC Auckland CRI-

2006-404-273, 10 November 2006 at [24] and [28], where it was said that there was an advantage in the public in it being understood that the usual punishment will be a further period of disqualification and this effective sanction would be undermined if the discretion is exercised too readily.

⁹ Note that, although s 94 is not available to driving offences that fall within ss 63 or 65 or where an offender is prohibited from applying for a limited licence under s 103(2)(a), (b) and (d), there are many driving offences that will fall within it that involve more than simple driving while disqualified.

public safety. Both the sentence and the disqualification order were overturned on appeal.

[10] In considering the appeal the High Court Judge described the purpose of an order for disqualification as follows:¹⁰

It does seem to me, however, that upon those earlier convictions arising from the conduct which endangered the safety of the public, the appellant had already been penalised. He had already been fined. He had already received disqualifications. Those earlier penalties were no doubt influenced in very great measure by the need to protect the public and properly so but the offence of driving while disqualified is of a different nature. The fact that an offender is driving while disqualified attracts punishment not because there is any fresh dangerous conduct but rather because a Court's sanctions are meaningless unless they are obeyed. A penalty is needed to ensure that the earlier sentence is carried out and to maintain respect for the law but not because of any fresh fears for the safety of the public.

[11] The Judge considered that it was better to give the offender the opportunity to experience a community-based sentence before sending him to prison and that imposing a further term of disqualification would simply compound the problem. He said: “The object of sentencing for disqualified driving is purely to punish. It is not to remove an offender from the roads for the safety of the public.”¹¹

[12] I agree that this must be correct in situations where the offender is habitually driving in breach of an order of disqualification. In those cases imposing further terms of disqualification is not deterring the offender. Punishment for the disobedience in the form of a community-based sentence is likely to be better, particularly where the offender is suitable for community work or other community-based sentence and there are no other impediments to imposing such a sentence. But even where the offender is not habitually driving while disqualified the purposes of denunciation, deterrence and protection of the public may be better served by a community-based sentence rather than a further period of disqualification. In the words of s 94 that may make disqualification “inappropriate” and a community-based sentence “appropriate” in the circumstances.

[11] One of the purposes of s 94 is, to a degree, counter intuitive. Those offenders who have demonstrated almost an addictive need to drive, one would have thought should be further punished by further periods of disqualification. However, there is another route which is to impose a community-based sentence in lieu of a driving

_{disqualification.}

¹⁰ _{Lambert v Police, above n 10, at 5.}

¹¹ At 7.

[12] It should be kept in mind that there are other penalties that can be imposed, including imprisonment, as Judge Wiltens has warned the appellant. This is the appellant’s fifth conviction of driving while disqualified with two others apparently not involving any road safety issues but simply driving while disqualified for prior breath alcohol convictions or traffic safety issues of failing to stop when followed by red and blue flashing lights and driving in a dangerous manner in 2003.

[13] I note that the offender lives and works in a country area and, as a bee-keeper, needs to travel some distances. I will be returning to that consideration later. I conclude that previous orders of disqualification have had little to no effect.

The likely effect on the offender of a further order of disqualification

[14] Given the finding of fact I have made under the second consideration, I think it is more likely that the threat of imprisonment for further offending is going to be the incentive to avoid further offending. The appellant has had numerous community work sentences imposed. Dating from March 2003, he has had six sentences of community work for hours varying from 200 hours (including a drive while disqualified offence), down to 140 hours.

[15] I am not convinced that his bee-keeping would be stopped by an order of disqualification. This is because the appellant does not explain how he got by since August 2012, in other words, the last year before he was reapprehended.

The interests of the public

[16] In the jurisprudence considering s 94, this consideration is principally examined in terms of public safety issues. The appellant was apprehended driving with excess blood alcohol in October 2011. He has had three such convictions, the other two being in 2008 and 2002. There are sentencing alternatives. The hours of community work could be increased. A warning that he is inviting a sentence of imprisonment for further traffic offending which in any way involves public safety would I think be a significant deterrent.

Conclusion

[17] Had I a full analysis from the District Court Judge, I would have hesitated to differ from his judgment. In the absence of that analysis, I think that the reasons that he has given reveal a lack of appreciation of what has been discerned as the purpose behind s 94. It is the very antithesis of the proposition that further disqualification orders are the only way to teach a person not to break the law and to express his reasoning as simply as that is, with respect in this context, taking into account a wrongful consideration. What the Act requires is to consider whether a sentence other than a further disqualification might be more therapeutic in the long run. I consider myself free to make a judgment on that independently of the judgment of the District Court Judge.

[18] I think it is in this case appropriate to recognise that his offending did not arise out of attracting the attention of the police because of unsafe driving, that it was only four days before his period of disqualification expiry ended, that he can be warned again that he is on the threshold of a prison sentence. That is, in my judgment, the most significant deterrent. There is a view for saying it is more therapeutic to let him drive conscious that this may be his last opportunity to drive as any further alcohol-fuelled driving or other road safety issues are likely to invite not only a prison sentence but also an indefinite suspension of his driving licence.

Result

[19] For these reasons, the appeal is allowed and the substitute sentence as follows. The appellant is sentenced to 250 hours community work. The motor vehicle FUJ916 is confiscated. The appellant is warned that he is facing a term of imprisonment for further traffic offences which involve either drinking while driving or otherwise road safety.