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High Court of New Zealand Decisions |
Last Updated: 5 September 2018
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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
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CRI-2018-404-016 CRI-2018-404-017
[2018] NZHC 791
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BETWEEN
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JACOB TEREKIA POONA
Appellant
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AND
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NEW ZEALAND POLICE
Respondent
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Hearing:
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17 April 2018
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Appearances:
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N D F Bond & G H Vear for Appellant L R Beashel for Respondent
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Judgment:
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24 April 2018
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JUDGMENT OF PAUL DAVISON J
This judgment was delivered by me on 24 April 2018 at 3.30 pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Crown Solicitor, Auckland
POONA v POLICE [2018] NZHC 791 [24 April 2018]
Introduction
[1] Jacob Poona pleaded guilty to four charges of driving while disqualified.1 On 19 January 2018, he was sentenced to 100 hours of community work and disqualified from driving for a period of eight months.2
[2] Mr Poona now appeals his sentence on the grounds that the Judge erred in refusing to exercise the discretion under s 94 of the Land Transport Act 1998 to substitute a community-based sentence in lieu of disqualification from driving.
The offending
[3] Mr Poona was initially disqualified from driving for a period of three months from 3 July 2017, after being convicted of driving with excess breath alcohol for a person under the age of 20. He was subsequently caught driving while disqualified on 3 August 2017, 10 August 2017, 24 August 2017 and 27 August 2017. On two of those occasions he told police he was the sober driver for intoxicated friends, while on another occasion he admitted he was disqualified and said that he was driving “to get around”.
District Court decision
[4] Judge Glubb reviewed the facts of the offending and noted that an aggravating feature was “the speed with which [Mr Poona] amassed the four offences, all within the space of a month”.3 He noted that an application had been made under s 94 of the Land Transport Act and referred to the submission of Ms Vear for Mr Poona that s 94 was “tailormade” for this situation, as Mr Poona appeared to be on a “wheel of offending”. The police were neutral towards the s 94 application.
2 Police v Poona [2018] NZDC 4536.
3 At [5].
[5] The Judge then noted that s 94 required him to look at the circumstances of the case, Mr Poona’s circumstances and the effectiveness of the disqualification. He observed:4
[Disqualification] was not particularly effective for you but that is nothing to do with the disqualification period. It is all to do with your attitude, frankly. You seem to think that the disqualification did not apply to you when you chose to drive.
[6] The Judge then considered the likely effect of a further disqualification, noting Ms Vear’s submission that there was every chance Mr Poona would reoffend. He stated that Mr Poona had to understand that people who repeatedly breach orders of the Court end up facing terms of imprisonment. The Judge went on to say:5
I give careful consideration to this application, noting the neutrality. However, I am simply not satisfied this is an appropriate case for the grant of a s 94 application and it is the speed with which and the consistency with which you have thumbed your nose at what is an important and serious order of this Court, I decline to grant the s 94 ... application.
[7] The Judge imposed a total disqualification period of eight months, coupled with a sentence of community work. The Judge adopted a starting point of 160 hours and discounted it by 15 per cent to reflect Mr Poona’s youth, with a further 25 per cent discount for his guilty pleas. This brought him to an end sentence of 100 hours’ community work as well as the eight-month disqualification from driving.
Submissions on appeal
[8] Mr Poona now appeals on the grounds that:
(a) the Judge failed to adequately take into account the relevant mandatory considerations set out in s 94; and
(b) he erred in principle by treating the rapidity of Mr Poona’s re-offending as an aggravating factor counting against the application.
4 At [7].
5 At [9].
[9] Under the first ground, Mr Bond for Mr Poona refers to the four factors listed in s 94(1)(b) and submits that the Judge failed to consider the public interest. He also says that although the Judge referred to the facts of the offending, Mr Poona’s personal circumstances and the effectiveness of disqualification, he did not make any connection between these factors and the determination of the application.
[10] Secondly, Mr Bond submits that the fact the offending occurred in quick succession does not weigh against the granting of the application. Instead, he says that Mr Poona is trapped in a wheel of offending and it is precisely this situation that s 94 was designed to capture.
[11] Mr Beashel for the Crown acknowledges that there is no explicit reference to the public interest in the Judge’s decision. However, in oral submissions he maintained that the Judge was not required to expressly refer to each of the s 94(1)(b) factors, provided that their substance was considered. He also submits that the Judge did not err in principle by treating the speed and consistency of Mr Poona’s offending as a factor weighing against the granting of the s 94 application. In his submission, those matters could weigh for or against the discretion.
[12] However, in case the Court finds an error in the Judge’s decision, Mr Beashel addresses the merits of the application. He essentially says that although Mr Poona is young and there may be a risk that he becomes caught in a cycle of offending, little has been offered in the way of evidence to suggest that his personal circumstances or his rehabilitative prospects favour the exercise of the discretion under s 94. He cites Downs J’s comments in Parata v Police to the effect that resorting to s 94 too readily could undermine the efficacy of disqualification as a penalty more generally.6
[13] Mr Beashel also cites the case of Keates v Police, where Lang J dismissed an appeal against a refusal to grant a s 94 application.7 Ms Keates pleaded guilty to one charge of driving while disqualified. She subsequently became pregnant and the
6 Parata v Police [2016] NZHC 3026 at [10].
7 Keates v Police HC Auckland CRI-2010-404-269, 21 September 2010.
recipient of a sickness benefit. Lang J nevertheless held that refusal of the application was open to the Judge. Mr Beashel says that no such extenuating personal circumstances are present here, and it is therefore an even clearer case for refusal of the s 94 application.
Approach to appeal
[14] The power to make an order under s 94 is the exercise of a statutory discretion.8 The Court therefore has limited jurisdiction on appeal: it may only interfere if the appellant can demonstrate that the Judge in the Court below erred in principle in exercising his or her decision; failed to take into account a material consideration; took into account an irrelevant consideration; or was plainly wrong.9
[15] The weight to be given to individual factors is a matter for the sentencing Judge. It is not for the appellate Court to say that the Judge placed undue weight on one factor, or should have placed greater weight on another.10
Relevant law
[16] Section 94 of the Land Transport Act 1998 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,—
8 Keates v Police HC Auckland CRI-2010-404-269, 21 September 2010 at [6].
10 Keates v Police HC Auckland CRI-2010-404-269, 21 September 2010 at [18].
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).
[17] Section 94 contains no clear statement of purpose, but the courts have repeatedly described it as a remedial provision.11 It gives recidivist offenders who may for a variety of reasons have failed to comply with the prohibition from driving
while disqualified an opportunity to break the cycle of offending by substituting a different form of sentence.12
[18] The predecessor to s 94 was s 30AC of the Transport Act 1962, which was introduced in the Transport Law Reform Bill 1988 (71-1). The explanatory note to that Bill recorded the purpose of s 30AC as follows:
... section 30AC implements recommendation 22 of the Road Safety Committee to the effect that where the Act presently requires a mandatory period of disqualification, and the convicted person has previously undergone a period of disqualification, it should be open to the Courts in any particular case where the usefulness of a further period of disqualification is doubtful to impose an alternative but more effective community-based sentence.
(emphasis added)
[19] Hardie Boys J described s 30AC as marking:13
... a clear shift in the emphasis of penal policy for offences of this kind. Whereas earlier the emphasis was on insisting on compliance with Court orders and punishing those who flouted them in part with longer and longer terms of disqualification, now there is a recognition that there are there are those for whom the need to drive is almost addictive and that these people will keep offending, no matter what punishment is imposed. The purpose of the amendment is to bring the pattern of offending to an end by removing one of its causes, namely, the continued extension of disqualification orders.
[20] As Mallon J recognised in Police v Body, the criteria in s 94 are broadly framed and it is therefore not unexpected that variations in approach as between Judges may arise.14 There is indeed some divergence in approach evident in the case law. Some Judges have taken a strict view of s 94, commenting that:15
Section 94 should only justify a variation from the norm where the personal circumstances of the offender, and in particular the rehabilitative prospects, justify affording the offender an opportunity to break the cycle of circumstances contributing to the recidivist offending.
[15] recognising that an offender need not be on a cycle of offending for s 94 to apply.
13 Mitchell v Police [1989] NZHC 592; (1989) 5 CRNZ 190 (HC) at 193.
14 Police v Body [2013] NZHC 1586 at [6].
[21] Those Judges have declined to employ s 94 without evidence of extraordinary consequences resulting from disqualification, or an express desire by the offender to rehabilitate.16 Other Judges have not taken such a stern approach, granting a s 94 application where they recognise that the offender is trapped in a cycle of offending and that the purposes of sentencing are best achieved by imposing a different sentence.17 I consider that the latter approach accords better with the remedial purpose of s 94 and the statement of intention recorded in the explanatory note above.
[22] I acknowledge the concern that “too ready resort to s 94 could undermine the efficacy of disqualification as a penalty more generally”.18 I also acknowledge that the substitution of a community-based sentence under s 94 may be viewed as acceding to the recidivist offender’s preference as to the type of sentence that should be imposed, namely something other than disqualification. As Venning J has observed:19
It would be unfair to compliant offenders if non-compliant offenders were to be seen to receive some kind of advantage as a result of their conduct.
[23] Certainly it is necessary to use caution in applying s 94 so that it does not become a means by which those with a wilful disregard for the law are able to avoid a penalty of disqualification. Nevertheless the section needs to be employed realistically in order to break a cycle of offending which appears likely to continue and which means that disqualification is ineffective as a penalty. The starting point is that disqualification is to be ordered.20 However, where an offender is repeatedly driving in breach of an order of disqualification, the penalty of disqualification is demonstrably ineffective in deterring the offender.21 Hence, as Mallon J concluded in Police v Body:22
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
16 See also Keates v Police HC Auckland CRI-2010-404-269, 21 September 2010; Hemana v Police
18 Parata v Police [2016] NZHC 3026 at [10].
20 Police v Body [2013] NZHC 1586 at [7].
21 Police v Body [2013] NZHC 1586 at [12].
22 Police v Body [2013] NZHC 1586 at [12].
work or other community-based sentence and there are no other impediments to imposing such a sentence.
[24] The imposition of a community-based sentence under s 94 should not be regarded as a lenient sentencing option.23 Rather, it is simply the court’s choice of a penalty that more effectively meets the purposes of sentencing.
Did the Judge err?
[25] I am not satisfied that the Judge erred in failing to have regard to the public interest. It is not necessary for the Judge to explicitly refer to each of the factors in s 94(1)(b), provided that he or she has regard to them.24 Although Judge Glubb did not expressly refer to the public interest in the list of factors which he considered, he mentioned the need for respect for court orders,25 which is certainly one element of the public interest.26
[26] However, I have nevertheless concluded that the Judge did err in principle in his approach to s 94. He rightly emphasised the short period of time in which Mr Poona had amassed four convictions for driving while disqualified, and also the likelihood of Mr Poona continuing to offend in the same way in future. However, the Judge wrongly considered that these factors weighed in only one direction, namely in favour of continued disqualification. He suggested that the breaches were the result of Mr Poona’s attitude, and warned him that further breaches could ultimately result in imprisonment.
[27] In taking this view the Judge overlooked the remedial purpose and shift in penal policy brought about by s 94, as outlined above. A strict insistence on compliance with court orders, punishing those who flout them with longer and longer terms of disqualification, is no longer appropriate. I consider that the Judge’s approach is not simply a matter of giving excessive weight to one factor, which would not usually warrant interference on appeal. Rather, I consider that it amounts to an error of principle.
23 Reddy v Police HC Auckland CRI-2010-404-217, 17 September 2010 at [36].
24 Police v Body [2013] NZHC 1586 at [19].
25 At [9].
26 Tailor v Police HC Auckland CRI-2009-404-322, 7 December 2009 at [25].
[28] For this reason it is necessary to exercise the s 94 discretion afresh.
Exercising the discretion afresh
Circumstances of the case and the offender
[29] As noted above, Mr Poona’s offences occurred in rapid succession: he was caught driving while disqualified four times in the space of a month. He did not endeavour to deny that he was driving while disqualified on any of these occasions; indeed, when stopped on 10 August he informed police he was a disqualified driver. I regard this openness as a mitigating factor of the offending. It is also relevant that he was not driving with excess breath alcohol on any of these occasions; nor was the manner in which he was driving remarkable in any way.
[30] Mr Poona did not attend the interview for his pre-sentence report. It is therefore difficult to assess the reasons for his offending or his attitude towards it. When he was apprehended, Mr Poona’s explanations were that he was driving to “get around” and that he was the sober driver for his friends. These explanations do not provide any satisfactory excuse, although they do suggest that Mr Poona’s driving is the consequence of youthful immaturity or a lack of forethought, rather than contumacious disregard for the courts’ authority. He is only 18 years old. Like Mr Capstick in Police v Body, it appears that he is someone who “just drives” without thinking.27
Effectiveness of previous disqualification
[31] At the hearing it was brought to my attention that since the District Court sentencing, Mr Poona has been charged with driving while disqualified again. It is said that he was caught driving on Scenic Drive in Swanson on 21 February 2018. Mr Poona is presently awaiting disposition of that charge.
[32] Mr Poona has now driven while disqualified four times since his initial disqualification on 3 July 2017, and presently faces a further charge relating to a fifth occasion. The previous period of disqualification has plainly been ineffective.
27 See Police v Body [2013] NZHC 1586 at [58].
Likely effect on the offender of further disqualification
[33] Because Mr Poona did not attend the interview for the pre-sentence report, I have no information as to the impact of disqualification on Mr Poona. Nor did Mr Bond appear to have any instructions on this subject.
[34] However, in light of Mr Poona’s history of offending and in particular his very recent conviction for driving while disqualified even after being sentenced on these four charges, I consider that he is very likely to offend again in the same manner in the future and has thus become caught in a cycle of offending with ever-increasing penalties. It is in the interests of justice that such a situation be avoided if possible, and an alternative penalty imposed which is more likely to be effective.
[35] In Tailor v Police, Lang J noted that the interests of the public can encompass a wide variety of matters.28 These include the public interest in ensuring that court orders are complied with and an effective penalty is imposed; and the public interest in keeping offenders off the road where their driving presents a danger to the public. The latter concern does not arise in the present case, other than the driving with excess breath alcohol charge which resulted in the initial disqualification. Mr Poona’s subsequent driving, while in breach of the disqualification, was not of a kind that endangered other road users. His driving while disqualified was discovered as a result of being stopped by random police checks and not for any reason relating to the manner of his driving. In my view this is a significant consideration in the exercise of the s 94 discretion, and may be contrasted to those cases where the disqualified driver has driven in a manner or in circumstances where the public were endangered by the driving.29
28 Tailor v Police HC Auckland CRI-2009-404-322, 7 December 2009 at [25].
29 Compare Parata v Police [2016] NZHC 3026, where s 94 arose for consideration in relation to a charge of driving with excess breath alcohol, in circumstances where the appellant had nine previous convictions for driving with excess breath alcohol.
[36] Drawing these factors together, I consider that this is a case where the s 94 discretion should be exercised. Mr Poona is a young man whose repeat offending appears to be the result of immaturity and a lack of consequential thinking. He is likely to drive while disqualified again in the future. Disqualification is demonstrably not an effective penalty for him, and this leads me to conclude that it would be inappropriate to order a further period of disqualification. There are no public safety concerns that would warrant further disqualification.
[37] I am satisfied that a community-based sentence would be appropriate in Mr Poona’s case and that such a sentence would better meet the purposes of accountability, denunciation and deterrence. Compliance with a community-based sentence, such as community work, can be more easily monitored than compliance with disqualification from driving. It is therefore likely to be a more effective sentence for Mr Poona, which is in the public interest. Mallon J’s observations in the case of Mr Capstick are relevant to the present case:30
Mr Capstick’s lack of thought and disobedience is more appropriately denounced and deterred by community work than by a sentence of imprisonment and the imposition of further disqualification periods that will only likely bring Mr Capstick back to the courts.
What community-based sentence should be imposed?
[38] Mr Poona was sentenced to 100 hours’ community work on the present charges. I consider than an additional sentence of community work should be imposed in lieu of disqualification.
[39] In Maeva v Police, Mr Maeva was convicted and sentenced on one charge of driving while disqualified, which was his third conviction for that offence. The Judge imposed 80 hours’ community work for the offence and a further 60 hours in place of disqualification under s 94, coming to a total of 140 hours of community work.
[40] In Witana v Police, the offender was sentenced to 150 hours’ community work on a third conviction for driving while disqualified.
[41] The present case is more serious than both Maeva and Witana, given that Mr Poona was sentenced for four charges of driving while disqualified. I consider that a further 100 hours of community work in lieu of disqualification meets the purposes of denunciation and deterrence. Adding this to the 100 hours imposed by Judge Glubb, the total period of community work to be imposed is 200 hours.
Result
[42] Accordingly, I quash the order for disqualification, and increase the number of hours of the sentence of community work imposed on Mr Poona from 100 hours to 200 hours.
Paul Davison J
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