Ruddell v Police [2016] NZHC 318 (29 February 2016)

Last Updated: 8 March 2016

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-003 [2016] NZHC 318

BETWEEN	MICHAEL DENNIS RUDDELL Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	29 February 2016
Appearances:	Appellant in person L B T Belk for Respondent
Judgment:	29 February 2016

_{JUDGMENT OF DAVISON J}

Solicitors:

Kayes Fletcher Walker, Manukau City, Auckland

RUDDELL v POLICE [2016] NZHC 318 [29 February 2016]

Introduction

[1] The appellant, Mr Ruddell, appeals against his conviction and sentence of 40 hours’ community work, after having pleaded guilty to one charge of driving a motor vehicle on a road while disqualified from holding or obtaining a driver’s licence.¹

Background

[1] The matter first came before Judge Winter at the District Court at Manukau on 23 March 2015. During the course of legal discussions, Ms Burton, for Mr Ruddell, said Mr Ruddell was indefinitely disqualified from driving in January 2012. She noted that he was in the process of completing an assessment at an approved drug and alcohol assessment centre (CareNZ) and that, when completed, he would apply to have his indefinite disqualification ended and for his licence to be reinstated. In the circumstances, the Judge indicated to Mr Ruddell that, if he was able to sit and pass the driver’s licence tests, then s 94 of the Land Transport Act

1998 (the Act) would apply.

[2] The matter was stood down so that the process could be explained in detail to Mr Ruddell by his counsel. Later that afternoon, the matter was recalled and Mr Ruddell pleaded guilty on the basis that a s 94 application was to be made.

[3] On 1 December 2015, Mr Ruddell appeared again before Judge Winter for sentencing. The sentencing notes are brief. The Judge said:²

[1] Mr Ruddell, you are here for sentence in respect of a charge of driving whilst disqualified. It has been before me since October of last year to enable you to get your licence. I understand you have completed the programme and got the licence.

[2] I am going to grant the 94 application because your history indicates you were on the treadmill of offending, and it is in society’s interests that that stop. You now have your licence... There is no disqualification.

_{[3] The sentence of the Court is 40 hours’ community work.}

¹ _{Land Transport Act 1998, s 32(1)(a).}

² Police v Ruddell [2015] NZDC 25881.

Submissions

[4] Mr Ruddell is self-represented before me today. He submits that the Judge gave him an ultimatum which is that, to avoid a disqualification from holding or obtaining a driver’s licence, Mr Ruddell was to complete his attendance at the drug and alcohol assessment centre and to pass the driver’s licence tests. He says that, having done what was asked of him, the Judge wrongly imposed a sentence of 40 hours’ community service.

[5] Ms Belk, for the respondent, submits the appeals against conviction and sentence should both be dismissed. First, Mr Ruddell entered a guilty plea after it was explained to him by the duty solicitor that s 94 was to be used as a mechanism to avoid disqualification. His decision to plead guilty was therefore informed. Secondly, there was no miscarriage of justice in the imposition of a sentence of 40 hours’ community work as that was the minimum sentence available to the Judge and there was no discretion to impose a lesser sentence in the circumstances.

Appeal against conviction

Relevant law

[6] Section 229 of the Criminal Procedure Act 2011 sets out a person’s right to appeal against conviction. Under s 230 of that Act, this is a first appeal from a Judge alone trial.

[7] Under s 232, the High Court can only allow an appeal from a Judge alone trial if it is satisfied that the District Court Judge “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or that “a miscarriage of justice has occurred for any reason”:

232 First appeal court to determine appeal

(1) A first appeal court must determine a first appeal under this subpart in accordance with this section.

(2) The first appeal court must allow a first appeal under this subpart if satisfied that,—

(a) in the case of a jury trial, having regard to the evidence, the jury's verdict was unreasonable; or

(b) in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred; or

(c) in any case, a miscarriage of justice has occurred for any reason.

(3) The first appeal court must dismiss a first appeal under this subpart in any other case.

(4) In subsection (2), miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that—

(a) has created a real risk that the outcome of the trial was affected; or

(b) has resulted in an unfair trial or a trial that was a nullity.

(5) In subsection (4), trial includes a proceeding in which the appellant pleaded guilty.

[8] As s 232 makes clear, not every “error or irregularity” causes a miscarriage of justice.³ The error or irregularity must lead to either of the consequences listed in s 232(4)(a) or (b).

[9] As the Court of Appeal stated in R v Le Page, it is only in exceptional circumstances that an appeal against conviction will be entertained following entry of a plea of guilty.⁴ The Court observed that a miscarriage of justice will be indicated in at least three broad situations: there must be either a material mistake or misapprehension on the part of the defendant affecting plea entry; the absence of a valid charge in law; or the entry of a plea through a wrong decision on a question of

law. These are not exhaustive criteria. A court may consider any ground which establishes a miscarriage of justice.⁵

Analysis

_{[10] Mr Ruddell appeals against his conviction on the basis that he had believed,}

³ See Matenga v R [2009] NZSC 18 at [30]: “A miscarriage is more than an inconsequential or

_{immaterial mistake or irregularity”.}

⁴ _{R v Le Page [2005] NZCA 67; [2005] 2 NZLR 845 (CA) at [16].}

⁵ R v Le Compte [1952] NZLR 564 at 573.

at the time of entering his plea, that he had bargained a situation whereby he would not be disqualified from holding or obtaining a driver licence and that no other penalty would be imposed. As I understand it, Mr Ruddell’s submission is therefore that his plea should be vitiated because he genuinely misunderstood or mistook the consequences of a conviction at the time of entering his plea.

[11] This is not a case where the appellant did not appreciate the nature of, and did not intend to plead guilty to, a particular charge. Mr Ruddell understood the nature of the charge against him. Rather, it seems that Mr Ruddell simply did not anticipate or expect that a community-based sentence would be imposed. There is no requirement that defendants ought to be informed about the likely sentence they might receive if they plead guilty at that point in time. It is worth noting that Mr Ruddell requested a sentence indication at the hearing but this was declined by the Judge. The Judge said:

The best I can do is say that I am currently holding about six matters with people who are trying to get restricted licences before they come before me for sentence. So, that is about as good as it gets, because I have to exercise my discretion, ultimately, against a statutory test and I cannot guess at what I might do in the future.

[12] Having declined to provide a sentence indication (I note that it is not mandatory for the court to provide a sentence indication if one has been requested),⁶ the Judge was not required to indicate to Mr Ruddell that a community-based sentence would be imposed. Indeed, the Judge stated that he is confined to a statutory test, the wording of which made it clear that a community-based sentence must be imposed.

[13] Returning to the question of whether or not it has been shown that a miscarriage of justice will result if a conviction is not overturned, I am satisfied that Mr Ruddell fully appreciated the merits of his position and made an informed decision to plead guilty to the charge against him. The hearing of 25 March 2015 was stood down for the very purpose of allowing the duty solicitor to explain the situation faced by Mr Ruddell. In particular, it was explained to him that, in order to avoid disqualification once his indefinite disqualification ended (as he wished to do),

s 94 would need to be invoked. The s 94 application necessitates a conviction hence why, presumably, Mr Ruddell chose to plead guilty at that time.

[14] Accordingly, this is not an occasion where an appeal against conviction is available following the entry of a guilty plea.

Appeal against sentence

Relevant law

[15] Section 250(2) of the Criminal Procedure Act states that the court must allow the appeal if satisfied that:

(a) for any reason, there is an error in the sentence imposed on conviction; and

(b) a different sentence should be imposed.

[16] In any other case, the court must dismiss the appeal.⁷

[17] The Court of Appeal in Tutakangahau v R confirmed that s 250(2) was not intended to change the previous approach taken by the Courts under the Summary Proceedings Act 1957.⁸ Further, despite s 250 making no express reference to “manifestly excessive”, this principle is “well-engrained” in the Court’s approach to sentence appeals.⁹

[18] The approach taken under the former Summary Proceedings Act was set out in R v Shipton in these terms:¹⁰

(a) There must be an error vitiating the lower court’s original sentencing discretion: the appeal must proceed on an “error principle”.

⁷ _{Section 250(3).}

⁸ _{Tutakangahau v R [2014] NZCA279[2014] NZCA 279; , [2014] 3 NZLR 482 at [26]- [27].}

⁹ _{At [33], [35].}

¹⁰ R v Shipton [2007] 2 NZLR218 (CA) at [138]-[140].

(b) To establish an error in sentencing, it must be shown that the Judge in the lower court made an error whether intrinsically or as a result of additional material submitted to the appeal court.

(c) It is only if an error of that character is involved that the appeal court should re-exercise the sentencing discretion.

[19] The Court will not intervene where the sentence is within the range which can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.¹¹

Analysis

[20] Mr Ruddell takes no issue with the Judge’s decision not to order that he be disqualified from holding or obtaining a driver’s licence. In his submission, Mr Ruddell says, however, that the Judge was wrong to impose a sentence of community service. He says that the steps he undertook to end his indefinite disqualification, including attending an alcohol and drug program, and completing a defensive driving course, as well as sitting and passing the driver’s licence tests, were exhaustive measures which took a toll on him and his family. The imposition of a community-based sentence, Mr Ruddell says, is an added hassle and obligation, and there was nothing to indicate to him at the hearing of 24 March 2015 that any such sentence would be imposed.

[21] I do not agree. Having read the transcript of the hearing, it is apparent that the focus of the legal discussion was on whether or not the Judge was willing to invoke s 94. There was no mention of the imposition of a community-based sentence simply because the discussion had not progressed that far. There is therefore nothing to support Mr Ruddell’s impression at the time that a community- based sentence would not be imposed.

[22] The wording of s 94 is clear in that, once the Judge exercises his or her discretion not to disqualify the offender from holding or obtaining a driver ’s licence, there is no discretion not to impose a community based sentence. Section 94(3) employs mandatory language. It provides that if the Court sentencing an offender determines under s 94 not to make an order of disqualification, then it “must” impose a community-based sentence on the offender, though the imposition of such a sentence does not limit or affect the power of the Court to impose any other sentence in addition to the community-based sentence. The very purpose of s 94, then, is to substitute the imposition of a community-based sentence instead of disqualification where the criteria in subsection 4 do not apply.

[23] Judge Winter then imposed a sentence of 40 hours’ community work, which is the minimum number of hours that he could impose.¹² I agree with Ms Belk’s submission that there was no discretion to impose a lesser sentence and it is therefore not possible to argue that the sentence imposed upon Mr Ruddell is manifestly excessive.

Conclusion

[24] For these reasons, the appeals against the conviction and sentence are both dismissed.

P.J. Davison J