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High Court of New Zealand Decisions |
Last Updated: 10 April 2019
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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-2018-404-078
[2018] NZHC 880 |
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BETWEEN
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DYLAN WILSON
Appellant
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AND
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NEW ZEALAND POLICE
Respondent
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Hearing:
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1 May 2018
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Appearances:
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J Harder for Appellant
M Mortimer for Respondent
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Judgment:
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1 May 2018
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ORAL JUDGMENT OF JAGOSE J
J Harder, Barrister, Auckland Crown Solicitor, Auckland
WILSON v NEW ZEALAND POLICE [2018] NZHC 880 [1 May 2018]
Introduction
[1] Dylan Wilson appeals the District Court’s refusal to substitute a community- based sentence in lieu of disqualification under s 94 of the Land Transport Act 1998 (the “LTA”).
[2] Mr Wilson was sentenced on 23 February 2018 by Judge Fraser in the Auckland District Court.1 He faced nine charges for offending ranging from drug possession, assault, non-compliance, and driving-related offending. That driving offending involved three charges:2
(a) driving whilst suspended (simpliciter), carrying a minimum period of compulsory disqualification of 6 months;3
(b) driving whilst suspended (aggravated), carrying a minimum period of compulsory disqualification of 12 months;4 and
(c) careless driving, allowing discretionary disqualification for such period as the court thinks fit.5
[3] He was sentenced to six months’ community detention and 15 months’ intensive supervision for all nine charges. In addition, for the driving charges Mr Wilson was: disqualified for the minimum period of 12 months for aggravated driving; disqualified for a concurrent term on the charge of driving whilst suspended (simpliciter); and convicted and discharged for the careless driving.
1 New Zealand Police v Wilson [2018] NZDC 4780 at [8].
3 Land Transport Act 1998, s 32(1)(c) and (3)(b).
4 Section 32(1)(c) and (4)(b).
5 Section 37(1) and (2)(b).
Factual background
[4] Mr Wilson has eleven previous convictions for driving offences, and has served previous disqualification orders between 2010 and 2014 for such offending. He has been granted substituted community-based sentences under s 94, both in 2011 and also for his most recent offending in 2014.
[5] The driving charges the subject of this appeal arise from offending on two separate occasions. The earlier offending was on 4 November 2016. Mr Wilson was stopped by a Police patrol vehicle and found to be driving while his licence was still suspended. The summary of facts does not record any attendant driving fault. Although laid in the simpliciter form, this was his eighth incident of driving whilst suspended, the seven previous incidents arising between April 2011 and February 2014.
[6] The later offending, on 5 March 2017, is considerably more serious. That evening Mr Wilson was driving a BMW car on State Highway 1 near Whakapara. He was seen overtaking dangerously on yellow lines, and around blind concerns, causing concerned drivers to flash their lights at him and call the Police. When Mr Wilson reached the Kamo bypass, he drove at speeds reaching 80 km/h in a 60 km/h zone, overtaking vehicles on a painted median strip. Driving through road works on Western Hills Drive, he deliberately knocked over road cones with his right arm. For this offending, he was charged with careless driving, and driving whilst suspended laid in the aggravated form (now his ninth such charge).
[7] Mr Wilson was sentenced in the Auckland District Court. The Land Transport Act charges were transferred there from the North Shore District Court.
Background to offending and Mr Wilson’s rehabilitative efforts
[8] Counsel for Mr Wilson, Justin Harder, accepts at the time of the offending, Mr Wilson’s life was “relatively out of control”, with his offending being closely intertwined with his use of methamphetamine and cannabis. It appears things started
to derail for Mr Wilson after the death of his father while Mr Wilson was young. Mr Wilson inherited a significant sum on his father’s death, and spent much of it on drugs, alcohol and vehicles.
[9] Aged 26 at the time of his offending, Mr Wilson was – for the first time in his life – remanded in custody for a period of about six weeks. It was during that time Mr Wilson engaged counsel and expressed a motivation to change. He sought and was granted bail on strict conditions to attend the Turning Point private residential programme for a period of four months, funding his own attendance.
[10] After the programme, Mr Wilson moved back in with his mother and eventually bought an apartment in the Central Auckland City where he is currently serving his sentence of community detention. He hopes to attend an AMS course to obtain a license to operate cranes or forklifts.
Legal framework
Substituting disqualification for community based sentences
[11] Section 94 of the LTA affords Judges the discretion to substitute disqualification for a community-based sentence if the court considers this appropriate having regard to all the criteria set out in s 94(1)(b). Section 94 relevantly 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
...
[12] The policy interest driving s 94 are clear: community-based sentenced, or other alternative penalties, may be substituted to avoid the stultifying effects of large build- ups of disqualification periods, especially but not exclusively for those caught in a “wheel of offending”.6
[13] The starting point remains disqualification is to be ordered, subject to a broad the discretion to substitute community-based sentences where “circumstances make disqualification inappropriate and a community-based sentence appropriate”.7 Mr Wilson relies on High Court dicta from 1990 opining “it will usually be better that the penalty take some form other than an additional disqualification”.8
[14] More recent authority, though, has warned overuse of s 94 may “undermine the efficacy of disqualification as a penalty more generally”.9 Therefore, s 94 should only justify a variation from the norm of disqualification where, having regard to the four mandatory considerations in s 94,
... 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.
6 Maeva v Police HC Auckland CRI-2010-404-402, 11 March 2011 at [30] and [32]–[34]
7 Body v Police [2013] NZHC 1586 at [7].
8 Lambert v Police HC Rotorua AP62/90, 11 October 1990 at 6.
9 Parata v Police [2016] NZHC 3026 at [10].
Sentence appeals
[15] Section 250(2) of the Criminal Procedure Act 2011 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, I must dismiss the appeal.10
[17] An appeal against a refusal to grant an application pursuant to s 94 is an appeal against the exercise of a discretion. Accordingly, it must be shown the sentencing Judge wrongfully exercised his discretion by taking into account irrelevant considerations, failing to have regard to material considerations, making an error in principle or that the ultimate decision was plainly wrong.11
District Court Decision
[18] In Yu v Police, Asher J points out this Court has the power to consider the matter de novo when the issue of s 94 is not addressed in the District Court.12 However, that is not the case here.
[19] Judge Fraser’s sentencing notes explicitly acknowledge he is bound by s 94.13 Although, not all of the four considerations in s 94 are expressly articulated, they are in my view, at least implicit in his Honour’s reasoning.
[20] In rejecting the s 94 application, the Judge insisted on the seriousness of the 5 March 2017 offending:14
10 Criminal Procedure Act 2011, s 250(3).
12 Yu v Police HC Auckland CRI-2006-404-000273. 10 November 2006.
13 New Zealand Police v Wilson [2018] NZDC 4780 at [8].
14 At [8].
In terms of the disqualification, obviously, issues in that regard are bound by s 94. In this case, the driving, which fortuitously you are charged with careless, when in fact, in my view, it should have been a much more serious charge, was of immense concern. There are two charges, both driving while suspended and you have the good fortune not to be charged in the aggravated form in relation to one of those. I do not intend to amend that charge at this point. The police have not sought to do so and I am progressing on that basis which provides you with significant benefit.
[21] He gave considerable attention to the issue of Mr Wilson’s rehabilitation, beginning by acknowledging:15
... the huge amount of rehabilitative work that you have undertaken and, unknown to [the Judge], at your significant expense. And I agree with Mr Harder that that demonstrates a much greater commitment to rehabilitation than someone who is having it funded.
I said to you in October, and I do not demur in any way from that, you should be immensely proud of what you had done.
Obviously, time is what is going to tell whether in fact the comments that I have made and the work that you have done will be long term effective but you have certainly given it a pretty significant shot in the arm.
[22] In terms of Mr Wilson’s rehabilitative prospects, the Judge took the view that there was “no employment being impacted here by the disqualification” and:16
... the likely effect on you is to create a level of frustration, no doubt and there is some level of difficulty but that goes with the territory in terms of this offending.
He also took into account a significant period of community work would locate Mr Wilson with “a muster of people that might not [be] particularly rehabilitative”, and therefore found:17
In that sense, I think as a by-product, it keeps you away from people that potentially could encourage you back to where you came from which would be concerning.
[23] The Judge’s conclusions were wrapped up in the language of public interest. He observed:18
15 At [2]-[4].
16 At [10].
17 At [11]-[12].
18 At [9].
Recognising the seriousness of the driving offending, and acknowledging the impact on the interests of the public, that driving and the other suspending driving is a matter of serious concern. In my view, the public interest is met by a period of disqualification being imposed but, in order to give you the best opportunity to move forward, the disqualification period will be for the minimum period in relation to the aggravated suspended driving and a concurrent period of disqualification in relation to the driving while disqualified simpliciter which should have been in the aggravated form.
Grounds of Appeal
[24] Through counsel, Mr Wilson appeals the Judge’s refusal to grant a community- based sentence in lieu of disqualification on grounds:
(a) the Judge was wrong to find the interests of the public favoured a further period of disqualification;
(b) the Judge failed to take into account the sentence of community detention would keep Mr Wilson off the road during the high risk evening hours in any event;
(c) the Judge erred in considering there was no employment impacted by the disqualification and the likely effect of further disqualification was not more than “frustration”;
(d) the Judge erred in failing to take into account the disqualification would mean Mr Wilson could not participate in a defensive driving course for a further 12 months;
(e) the Judge erred in finding community work was not a suitable substitute for disqualification; and
(f) the decision was plainly wrong.
Analysis
[25] Mr Harder relies on the decision of Duffy J in Witana v Police,19 a decision in which the two driving incidents of driving whilst disqualified were assessed as “otherwise innocuous”. Citing Body v Police, Duffy J found:20
Public safety concerns were not, therefore, engaged. In Body, Mallon J accepted that for driving in breach of disqualification orders that is otherwise innocuous, the sentencing principles can be met by sentences that do not involved a further period of disqualification.
[26] Mr Harder submits the offending on November 2016 was patently “otherwise innocuous”; and while the March 2017 offending was more serious, it was aggravated by a charge of careless driving that does not carry a mandatory disqualification period, and so there no presumption in favour of disqualification. From this starting point, Mr Harder reasons Mr Wilson’s rehabilitative interests make this a clear case where a community-based sentence is appropriate and disqualification is not.
[27] I agree, and the Crown does not demur, the November 2016 offending was innocuous. But Judge Fraser was correct to assess the March 2017 offending as “serious” and of “immense concern”, notwithstanding his discretionary decision not to amend the charge so late in the piece. This, coupled with a pattern of driving offending over many years, elevates Mr Wilson’s culpability.
[28] I accept by the time of sentencing the public interest in keeping Mr Wilson off the road was somewhat reduced. He had then regained his license and was driving legally; he was booked into a defensive driving course two weeks after the sentencing and he had been on a night time curfew as part of his sentence of community detention, which keeps Mr Wilson off the roads during that high-risk period. Moreover, the risk of further driving offending – which appeared to be intertwined with drug and alcohol use – has been mitigated to a degree by his extensive rehabilitative efforts.
[29] Nonetheless, the Judge did not err in finding the public interest still weighed in favour of disqualification. Mr Wilson’s primary argument – on which this appeal
19 Witana v Police [2014] NZHC 1963.
20 At [28] citing Body v Police [2013] NZHC 1586.
essentially turns – is the submission Judge Fraser failed to give due weight to Mr Wilson’s rehabilitative interests.
[30] In particular, Mr Harder suggests the Judge erred in assessing the effect of disqualification as a mere “frustration” without contemplating its wider effects on Mr Wilson’s rehabilitative and re-integrative interests. There is inevitably and sensibly a punitive element to the disqualification sentence; the Judge was not unaware it would result in some difficulties for Mr Wilson. But Mr Wilson has not pinpointed exactly why or how his license is necessary for him to move forward with the good rehabilitative progress he has made already. There are strong expectations Mr Wilson will be able to find work which falls within the restrictions he is currently under, and will engage himself in that in the same way as he has self-improved by reference to the Turning Point course.
[31] It is certainly in the public interest, as well as his own personal interest, Mr Wilson find work and contribute productively to society.21 But I have no compelling evidence before Mr Wilson will not be able to secure employment generally – or specifically as a crane or forklift operator – without it. The report of his AOD counsellor and the PAC report only mention Mr Wilson’s desire for a full license, not its necessity for his employment or rehabilitation more generally. There is some merit in the Police submission Mr Wilson lives in the city centre, within easy access to public transport.
[32] In the round, Mr Wilson’s rehabilitative interests, however significant,22 are but one factor to be weighed in the mix of the four statutory criteria listed in s 94. Also relevant is his repeat offending over many years, and the fact he has already received two community-based sentences in the past, and yet still offended subsequently. On balance, I do not consider the Judge erred in any of the specific ways mentioned above.
21 Maeva v Police HC Auckland CRI-2010-404-402, 11 March 2011.
22 Beeston v Police [2012] NZHC 1064 at [33].
Result
[33] The appeal is declined.
—Jagose J
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