Al-Hulow v Police [2015] NZHC 1703 (23 July 2015)

Last Updated: 31 August 2015

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2015-485-12 [2015] NZHC 1703

BETWEEN	ALI AL-HULOW Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	21 July 2015
Counsel:	Apellant in person with Mr Majid as MacKenzie friend A R Garrick for Respondent
Judgment:	23 July 2015

_{JUDGMENT OF ELLIS J}

_{I direct that the delivery time of this judgment is}

3 pm on the 23^rd day of July 2015

Solicitors: Crown Solicitor, Wellington, for Respondent

_{Copy to: Mr Al-Hulow}

AL-HULOW v NEW ZEALAND POLICE [2015] NZHC 1703 [23 July 2015]

[1] Mr Al-Hulow appeals against his sentence on a charge of driving whilst suspended (third or subsequent) and a charge of giving false details. On

10 March 2015 he was sentenced by Judge Kelly to six months’ community detention and disqualified from holding or obtaining a driver’s licence for 12 months and one day.¹ On the charge of giving false details Mr Al-Hulow was convicted and discharged.

[2] Her Honour declined an application to substitute a community based sentence for the disqualification under s 94 of the Land Transport Act 1998 made on Mr Al-Hulow’s behalf.

[3] Mr Al-Hulow had his driver’s licence suspended (in August 2014) for excess demerit points in relation to speeding. He has previously also been convicted for driving while either disqualified or suspended five times. The present is his third conviction for driving whilst suspended.

[4] As I understood it, Mr Al-Hulow (who was self-represented and had limited

English) had three principal grounds of appeal.² They were that:

(a) his disqualification from driving prevented him working (or impeded his ability to do so);

(b) his disqualification from driving meant that he could not drive his ill father to hospital and other appointments; and

(c) he now recognises how very foolish he has been in the past, is genuinely remorseful and will not reoffend in future.

[5] Documents filed by Mr Al-Hulow before the hearing also refer to the fact that when the present charges were pending they presented difficulties for him in obtaining a visa to travel to Australia to look after his father. But that issue appears

_{to be largely unrelated to his sentence appeal (although it is obvious that even if he}

¹ _{New Zealand Police v Alhulow [2015] NZDC 3865.}

² Mr Al-Hulow placed before the Court a letter from his previous lawyer who declined to continue to represent him. She said: “I won’t be your lawyer in the appeal because I don’t think you’ve got a chance of winning”. She helped him fill out a legal aid application form.

could obtain a visa he will not be able to travel to Australia until he has completed his sentence of community detention).³ I therefore propose to proceed on the basis that the focus of his appeal was on the disqualification aspect of his sentence and on the Judge’s refusal to impose a substitute sentence under s 94.⁴

[6] That issue can be shortly dealt with.

[7] Section 94 relevantly provides:

(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.

[8] In Mr Al-Hulow’s case, Judge Kelly’s analysis of the s 94 application begins

_{by noting the submission that he needed to drive to maintain employment and the}

³ Although it is now over four months since Mr Al-Hulow’s sentencing, the filing of his appeal had meant that the community detention aspect of his sentence has been suspended: Sentencing Act 2002, s 345. The surprise I expressed during the hearing at Mr Al-Hulow’s advice that his electronic bracelet had been removed some time ago was misplaced.

⁴ To the extent Mr Al-Hulow also wished to submit that the sentence was manifestly excessive, he did not do so. In light of his driving history there was, in any event, no proper basis upon which that submission could have been advanced.

impact of disqualification on his family circumstances.⁵ She records his submission that permitting him to drive would not be contrary to the public interest.

[9] Next, the Judge records the prosecution submission that there had been no apparent change in Mr Al-Hulow’s behaviour as a result of previous sentences and that his driving inherently put public safety at risk. Then she notes:⁶

The prosecution also point out that when you were sentenced for driving while disqualified on 2 October 2012, you then made an application under s 94 stating that you needed your driver’s licence for work purposes.

Judge Ellis granted you the s 94 application, but makes it clear in his sentencing notes that he warned you that if you appeared again for driving while disqualified, you would be liable for the full 12 months’ disqualification. Judge Ellis asked you, “Do you understand?” You replied “Yes”. Judge Ellis concluded his sentencing remarks by saying, “So the chance is firmly in your hands. If you want to show us that you can follow the rules, then do it. If you come back then we will know that you cannot”. Again Judge Ellis asked you, “Do you understand?” you said, “Yes.”

[10] Her Honour concluded:⁷

Having regard to those circumstances, namely that you have been granted a s 94 application in the past and notwithstanding that you were subsequently suspended from driving, you then drove in breach of that suspension and were apprehended in the early hours of the morning, not for any work related purposes and attempted to avoid detection by giving false details. I am not satisfied that it is in the interest of the public for a further s 94 application to be granted.

[11] I acknowledge that there appears to have been a change of circumstances since the time of Mr Al-Hulow’s sentencing, namely the arrival into New Zealand of his father who is (I accept) frail and unwell. However Mr Al-Hulow’s advice was that his father was due to return to Australia within the next two weeks or so. And given Mr Al-Hulow’s woeful driving record it is questionable whether it would be in his father’s interests to be driven around by him in any event.

[12] So the short point is that there is no basis upon which I could disagree with

_{Judge Kelly’s analysis, nor any discernible error in her approach. It seems to me that}

5. New Zealand Police v Alhulow, above n 1. Mr Al-Hulow lives with his brother who cannot drive.

⁶ _{At [14] and [15].}

⁷ At [16].

s 94 confers a discretion on the sentencing court and it is trite that an appeal from the exercise of a discretion must fail unless it can be shown that the first instance judge’s decision was contrary to principle, or that she failed to consider all relevant matters or took into account irrelevant matters, or that the decision was plainly wrong.

[13] Mr Al-Hulow is not able to demonstrate any of those things here and his appeal must be dismissed accordingly.

Rebecca Ellis J