Laracy v Police [2016] NZHC 2615 (1 November 2016)

Last Updated: 10 November 2016

IN THE HIG H COURT O F NEW ZEALAND WELLINGTON REG ISTRY

CRI-2016-485-71 [2016] NZHC 2615

BETWEEN	JOSIAH LEE LARACY Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	1 November 2016
Counsel:	C W Ross for Appellant C M Gisler for Respondent
Judgment:	1 November 2016

_{JUDGMENT O F WILLIAMS J}

Introduction

[1] Mr Laracy is 23 years old. He pleaded guilty to a single charge of driving while disqualified. This is his second such conviction.

[2] His counsel made an application under s 94 of the Land Transport Act 1998 to substitute a further period of disqualification with a sentence of communi ty work. The application was granted. He was sentenced by Judge Johnston in Wellington to

350 hours’ communi ty work. ¹

[3] He now appeals that sentence as manifestl y excessive.

_{[4] The parties are agreed the sentence imposed was manifestl y excessive.}

¹ _{Police v Laracy [2016] NZDC 17206.}

LARACY v NEW ZEALAND POLICE [2016] NZHC 2615 [1 November 2016]

[5] On 20 November 2015, Mr Laracy was convicted of driving with excess breath alcohol. He was disqualified from driving for six months (the original disqualification). He also had to pay a fine of $550. The offence was committed two days earlier.

[6] On 25 Februar y 2016, Mr Laracy drove while disqualified. He was convicted on that charge o n 11 March 2016. He was sentenced to a further disqualification period of six months, starti ng from 21 May 2016 (the second disqualification) to allow for the original disqualification period to run its course. He was also fined

$300 and directed to pay court costs of $130.

[7] On 11 May 2016 (that is still within the first six months disqualific ation period), Mr Laracy was stopped by police while driving down Buckle St i n Wellington. He was charged with a second count of driving w hile disqualified.

[8] On 10 August 2016, Judge Johnson sentenced hi m on the 11 May charge (set out below). This is the decision he appeals.

[9] Mr Laracy has no other convictions.

District Court sentencing

[10] In his sentencing remarks, the Judge noted the police were neutral in their stance to Mr Laracy’s s 94 application to i mpose a communi ty-based sentence instead of a further period of disqualification. The Judge concl uded Mr Laracy would benefit from a community-based sentence.

[11] On the charge of driving while disqualified, the Judge sentenced Mr Laracy to 150 hours’ community work. In lieu of the otherwise mandator y period of disqualification, Mr Laracy was “convicted and sentenced to an additional 200 hours of communi ty work”. This gave a total of 350 hours’ community work.

[12] Section 94 of the Land Transport Act 1998 materially states:

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.

Submissions

[13] Mr Ross, for Mr Laracy, submi ts that while a communi ty sentence is appropriate, the number of hours was manifestl y excessive. The Judge di d not take into account the overall gravity of the offending, which was low. The two previous sentences of disqualification were within close proxi mity to each other. Generally, it is rare for sentences of more than 200 hours’ community work to be imposed for such cases.

[14] Mr Laracy is a full-time student and needs to work during holiday breaks. A sentence of 350 hours amounts to ni ne weeks full -ti me, which will have an i mpact on hi m bei ng able to fund his studies. Mr Ross asks for a sentence of 100 to 15 0 hours to be i mposed.

[15] The Crown notes there are not many cases concer ning the quantum of community wor k to be i mposed under s 94. The Crown accepts that a conclusion that the quantum of community work was excessive here is available to me on these facts. The Crown does not propose a number, but notes that the sentence should reflect that all convictions occurred within a six month period and the last occurred when deliberately tr ying to avoid a police checkpoint.

Analysis

[16] The Judge i mposed two sentences of community work, one for the charge i n front of hi m, driving w hile disqualified, and one instead of the disqualification.

[17] It is not strictly erroneous to impose both a sentence on the actual charge and then in a second stage communi ty work i n lieu of disqualification. The wording of s 94(3)(b) permits it without requiring such an approach:

the imposition of [community work] 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[.]

[18] It does seem nonetheless to be the usual practice to impose a singl e sentence of community work for both the offence and i n lieu of disqualification. See for example Whyman v Police² where the District Court had i mposed a sentence of 80 hours’ communi ty work for the offence and disqualification of a year. On appeal, Lang J quashed both the disqualification order and the origi nal communi ty work and imposed a single sentence of communi ty work of 200 hours.³

[19] In any event, however it is constructed the number of hours imposed in this case was manifestly excessive. The appellant gives examples of appeals to the High Cour t to demonstrate this:

(a) Whyman, w here 200 hours were imposed, in the context w here the appellant had signi ficant speeding traffic infringement histor y;

(b) Skelton v Police,⁴ where 80 hours were imposed for a third and subsequent driving while suspended.

(c) Maeva v Police⁵, where 140 hours were imposed for a third conviction of driving while disqualified; and

[20] There are other examples from High Court appeals:

(a) Tuhi v Police,⁶ where 80 hours were imposed for driving while suspended, third or subsequent. Ms Tuhi had eight previous si milar convictions, but there were compelling personal circumstances and

_{she had taken steps to gai n her license.}

² _{Whyman v Police [2014] NZHC 2889.}

³ Maeva v Police HC Auckland CRI-2010-404-402, 11 March 2011, the Judge did at [39] express the final sentence as being broken down by 80 hours for the offence and 60 hours for the disqualification, but imposed only one sentence of community work.

⁴ _{Skelton v Police [2015] NZHC 1735.}

⁵ _{Maeva, above n 3.}

⁶ Tuhi v Police [2015] NZHC 516.

(b) Witana v Police,⁷ where 150 hours were imposed. The appellant had repeatedly breached the disqualification within a short period. This case is probably most analogous to the present facts.

[21] The usual range on the cases seems to be around 80-150 hours. In my view, in light of Witana, a sentence of 150 hours total would be appropriate.

[22] Both sentences are quashed and a single sentence of 150 hours communi ty work is substituted.

Williams J

Solicitors:

Public Defence Service, Wellington

Crown Solicitor ’s Office, Wellington

⁷ Witana v Police [2014] NZHC 1963.