Hood v Police [2022] NZHC 120 (8 February 2022)

Last Updated: 4 March 2022

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY I TE KŌTI MATUA O AOTEAROA TE WAIHARAKEKE ROHE

CRI-2021-406-000014 [2022] NZHC 120

BETWEEN	RICHARD EARNEST HOOD Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	4 February 2022
Counsel:	M Zintl for the Appellant M A Harris for the Respondent
Judgment:	8 February 2022

JUDGMENT OF GENDALL J

Solicitors:

M Zintl, Blenheim M Harris, Nelson

RICHARD EARNEST HOOD v NEW ZEALAND POLICE [2022] NZHC 120 [8 February 2022]

Introduction

• [1] The appellant Mr Richard Hood pleaded guilty in the District Court to numerous drug charges, namely offering to supply methamphetamine (x 29),¹ offering to sell cannabis² and offering to supply morphine.³ In addition he pleaded guilty to the charge of driving while suspended.⁴ He was sentenced on 18 October 2021 by Judge Ruth to 18 months’ imprisonment, with leave to apply for home detention.⁵ He was also disqualified from driving for six months to commence from the date of sentencing.

• [2] On 20 December 2021, Judge Zohrab converted the appellant’s remaining term of imprisonment to 46 days of home detention. This sentence is due to expire early February 2022.⁶ This means that once his sentence of home detention is finished, the appellant will still have two and a half months’ left of his disqualification period.

• [3] Mr Hood appeals this sentence solely in relation to the disqualification from driving penalty. He says that Judge Ruth erred in failing to backdate the period from which the disqualification began, pursuant to s 85(1) of the Land Transport Act 1998 (the Act).

Background to the offending

• [4] The drug charges are as follows:

(a) Between 1 October 2020 and 1 April 2021, the appellant offered to supply methamphetamine to approximately 29 persons by way of text message on 79 occasions.

(b) On 18 October 2020, the appellant offered to supply morphine to one person.

¹ Misuse of Drugs Act 1975, ss 6(1)(c) and (2); maximum penalty life imprisonment.

² Section 6(1)(e); maximum penalty 8 years’ imprisonment.

³ Sections 6(1)(c) and (2); maximum penalty 14 years’ imprisonment.

⁴ Land Transport Act 1998, ss 32(1)(c) and (3); maximum penalty 3 months’ imprisonment, or a fine of $4,500; and minimum disqualification period of six months.

⁵ Police v Hood [2021] NZDC 20539.

⁶ Department of Corrections v Hood [2021] NZDC 25483.

(c) Between 21 October 2020 and 2 January 2021, the appellant offered to sell cannabis to three persons.

• [5] The driving while suspended charge arose from an incident on 10 February 2021. On 8 December 2020, the appellant was suspended from driving for three months due to excess demerit points. At about 5.25 pm on 10 February 2021 he was seen driving a vehicle in Blenheim in breach of supervision. When spoken to Police, he admitted to doing this.

District court decision

• [6] The appellant pleaded guilty to the charges and was sentenced in the District Court by Judge Ruth as follows:

(a) In relation to the drug offending, 18 months’ imprisonment was imposed, with leave to apply for home detention.

(b) In relation to the driving offence, the appellant was sentenced only to six months’ disqualification.

(c) The appellant’s outstanding fines of $2,708 were remitted, and his community work requirement of 75 hours was cancelled.

• [7] The Judge in sentencing the appellant referred to a number of documents that had been submitted for the Court’s consideration, these included a pre-sentence report, an alcohol and drug addiction report and, what he described as “most prominent”, a s 27 report. The Judge observed that the pre-sentence report suggested a term of imprisonment as the appropriate sentence, but with leave to apply for home detention so the appellant could attend a rehabilitative facility.

• [8] He noted too the appellant’s substance use and addiction history as recorded in the alcohol and drug report. This included social drinking (as opposed to drinking to excess) from late teenage years and social use of cannabis for a couple of years from the age of 22. The Judge referred to the appellant’s use of other drugs, particularly IV

methamphetamine, and his addiction and health issues, including a “needle fixation”⁷ and tooth pain.

• [9] It was recorded that the appellant explained he would purchase and sell methamphetamine to cover the cost of his own drug use, and this was the same for morphine. The Judge noted that based on evidence supplied in the s 27 report, “although [the appellant’s drug dealing] was a commercial enterprise, it was an enterprise of diminishing returns ... heading for a net loss”.⁸ He said the appellant was “a sole trader dealing in amounts to enable your own addiction to be maintained” and was “motivated by that addiction rather than anything else.”⁹ The dealing was “very much to cater for your own addiction”.

• [10] It was accepted the appellant was “well regarded” in the building industry and that “it is to be hoped that, at the far end of this process, you might be able to return to all of that.” The Judge said this would “only happen if you can be free of the blight on your life that drugs have provided”.

• [11] The Judge found the s 27 report prepared for the appellant instructive. He noted the appellant’s upbringing, work success and pain problems as well as his difficulties with depression, addiction and family members. The report writer had said he found the appellant to be “a polite and respectful person”.¹⁰ The Judge accepted “without question” that factors such as the appellant’s addiction and any social, cultural and economic deprivation were things he must take into account here.¹¹

• [12] Ultimately, in relation to the drug charges, the Judge opted for a starting point of 36 months’ imprisonment. The Judge applied a full discount of 25 per cent for the appellant’s guilty pleas. He factored in a 20 per cent discount for the appellant’s addiction and social factors, including those outlined in the s 27 report, noting the appellant’s attempts at rehabilitation and his desire to continue doing so. The Judge

⁷ Where the use of the needle is often as pleasurable as the drugs being injected. The report writer recorded that this is “not an unknown phenomenon among persons who use intravenously”: Police v Hood [2021] NZDC 20539 at [11].

⁸ Police v Hood [2021] NZDC 20539 at [20]–[21].

⁹ At [23].

¹⁰ At [19].

¹¹ At [24].

also granted a five per cent discount for the appellant’s remorse as recorded in an apology letter. In total the discounts came to 18 months, leaving an end sentence of 18 months’ imprisonment. Standard and special conditions of release were imposed, the special conditions being:¹²

(a) attendance at an assessment for a drug and alcohol problem;

(b) attendance and completion of any counselling, treatment or programme recommended by that assessment;

(c) neither possessing, consuming nor using any alcohol or non-prescribed controlled drugs; and

(d) residing at an approved address.

• [13] The Judge also remitted the appellant’s fines of $2,708. In relation to the morphine dealing, the Judge sentenced the appellant to six months’ imprisonment and in relation to the cannabis offending, the Judge sentenced him to three months’ imprisonment. All to be served concurrently.

• [14] In relation to the driving charge the appellant understood the law requires a minimum six-month disqualification, but asked that it be backdated, taking into account his circumstances. For this charge, the Judge said:

[38] On the charge relating to the driving matter, Mr Hood, the only penalty will be that you will be disqualified for six months from now. You are reasonably close to release and I am satisfied that disqualification from now is appropriate. The 75 hours of community work that are outstanding are now cancelled.

• [15] In so ordering, the Judge recorded his reasoning in this way:

[39] My intention is that, when you are released, you will not have outstanding fines, outstanding community work and effectively you will have a clean slate hopefully with the view in mind that you will undertake the rehabilitation aspects of the sentence that I have imposed and get back on the right track again and use the skills that you undoubtedly have.

¹² At [34].

• [16] On 20 December 2021, Judge Zohrab converted the remaining term of imprisonment to 46 days of home detention.

Submissions

Appellant's submissions

• [17] The appellant submits that Judge Ruth erred in failing to backdate the disqualification period for two main reasons.

• [18] First, the appellant submits that the Judge failed to provide reasons for choosing not to backdate the disqualification period, and that this amounted to a miscarriage of justice.

• [19] Second, the appellant submits that the Judge’s decision not to backdate the disqualification was contrary to his stated intention, namely that the appellant finish his sentence with a clean slate and put his building skills to use. The appellant submits that the additional two and a half months’ of disqualification following the completion of his home detention sentence will inhibit his ability to recommence his building business and work again.

• [20] Accordingly, the appellant submits that backdating the period of disqualification to 16 August 2021, being the date at which the appellant pleaded guilty to the driving charge, is appropriate in the circumstances.

Respondent's submissions

• [21] The Crown contends that there is no identifiable error in the District Court’s decision to refuse to backdate the start date of the disqualification period. The Judge was alive to the appellant’s request to backdate the starting point, acknowledging this in the sentencing notes,¹³ before going on to conclude that he was satisfied disqualification from the sentencing date was suitable.¹⁴

¹³ At [29].

¹⁴ At [38].

• [22] The respondent submits the language used by the Judge is informative of his reasoning process. First, in identifying the appellant was “reasonably close to release” from his sentence, he must have intended at least part of the disqualification period to remain operative upon the defendant’s release from the sentence. Second, the words “the only penalty” indicate that the Judge intended the disqualification to apply in part beyond the appellant’s release date, in order to achieve the denunciation and deterrence objectives of sentencing in respect of the driving offending.

Relevant law

• [23] Section 85 of the Land Transport Act provides discretion as to when the date of disqualification is to run from:¹⁵

85 When disqualification starts

(1) If an order is made by a court under any Act disqualifying a person from holding or obtaining a driver licence, the period of disqualification starts on the day the order is made unless the court otherwise directs or that Act otherwise provides.

Approach to appeal

• [24] This appeal is brought under s 250 of the Criminal Procedure Act 2011. Under this provision, an appeal against sentence is an appeal against a discretion and must only be allowed if the Court is satisfied that, for any reason, there was an error in the sentence imposed and a different sentence should have been imposed.¹⁶ The Court must dismiss the appeal in any other case.¹⁷ The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.¹⁸ An appellate court will not intervene unless a sentence was outside the range available to the sentencing Judge.¹⁹

¹⁵ Emphasis added.

¹⁶ Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].

¹⁷ Criminal Procedure Act 2011, s 250(3).

¹⁸ Ripia v R [2011] NZCA 101 at [15].

¹⁹ At [36].

• [25] For the appeal to be successful in this case the appellant must show that the Judge erred in failing to exercise his discretion to backdate the start date of the disqualification, so that the final sentence imposed was wrong.

Discussion

Decision not to backdate the disqualification period

• [26] The Court certainly has the ability to backdate a period of disqualification.²⁰ The wording of the section directs that a disqualification period begins on the day the order is made “unless the court otherwise directs or [the prescribing] Act otherwise provides.”²¹ As Mander J observed in Neho v Police, “[i]t is now well established that a period of disqualification can be backdated.”²² In Edwards v Police Venning J said:²³

The wording is unambiguous. The Court has an unfettered discretion as to the date the disqualification is to run from. The Court may “otherwise direct” the period of disqualification be backdated or commence on a future date.

• [27] Thus the default position is that the order begins on the day the order is made, which is however subject to the Court’s “unfettered discretion” to begin the disqualification at another date, either in the future or backdated. The purposes and principles of sentencing, of course, continue to apply to the exercise of a discretion under s 85(1).

• [28] Mr Zintl for the appellant refers to a number of cases where the Court has backdated a period of disqualification on appeal. The authorities, however, demonstrate that where a disqualification is backdated by the Court it is on the basis that it would be unfairly prejudicial to the appellant not to do so, usually where the appellant has effectively already served the disqualification or there has been some sort of procedural error affecting the appellant.

• [29] In Edwards, for instance, Venning J noted that any injustice that arose from the appellant in that case being again convicted and disqualified (disqualification being

²⁰ Edwards v Police [2012] NZHC 1350; and Neho v Police [2016] NZHC 1290.

²¹ Land Transport Act 1998, s 85(1).

²² Neho v Police [2016] NZHC 1290 at [24].

²³ Edwards v Police at [26].

mandatory under the Act) could be avoided by means of back-dating the period of disqualification by dint of s 85(1).²⁴ Similarly, in Police v Smith (Matthew), Asher J considered that the Court might utilise s 85(1) as a means of avoiding the defendant in that case unjustly receiving double punishment (disqualification being mandatory under the Act).²⁵ Ultimately, the Judge rejected that option since there would be “grave difficulties” in applying essentially a retrospective period of disqualification, such as the fact the defendant would have been driving over past months while retrospectively disqualified.²⁶

• [30] In Oldfield v Police the appellant pleaded guilty to driving with excess breath alcohol causing injury and was disqualified from driving for 12 months.²⁷ However, the case against the appellant had been subject to prosecutorial delays, and the appellant was not sentenced until 14 months after his first appearance, during which time the appellant had been subject to a bail condition that considerably restricted his driving.²⁸ On this basis the Judge backdated the disqualification by four months.²⁹

• [31] In Mulligan v Police the appellant successfully appealed an order of indefinite disqualification.³⁰ The original sentence was substituted with an alcohol interlock sentence, which attaches a mandatory 28-day disqualification period. The appellant had been disqualified for five months by the time the appeal was heard, so the Judge backdated the mandatory disqualification by 28 days so that it was effectively served during the indefinite disqualification period initially imposed.³¹

• [32] In Moki, Doogue J observed that the two cases above in which a disqualification was backdated, namely Oldfield and Mulligan, “involve some procedural defect or abnormality such that backdating is warranted to avoid excessive punishment.”³²

²⁴ At [12].

²⁵ Police v Smith (Matthew) [2012] NZHC 2346, [2012] NZAR 965, 973.

²⁶ At 973.

²⁷ Oldfield v Police [2013] NZHC 3206.

²⁸ At [22].

²⁹ At [22].

³⁰ Mulligan v Police [2019] NZHC 145.

³¹ At [22].

³² Moki v Police [2019] NZHC 2393 at [19].

• [33] The authorities show it may also be appropriate to backdate a disqualification period if the defendant had been prevented from driving due to strict bail conditions on the charge the disqualification applied to, so that they served what was effectively a disqualification. In Prowse v Police, Hinton J did not consider there to be any basis for backdating the disqualification in that case. However, the Judge described an “obvious example” where backdating a disqualification period may be appropriate:³³

[27] The obvious example of where a Court may direct that a period of disqualification be back-dated is where a person was on bail prior to the sentencing and a condition of the bail was that they not drive. Assuming they complied with that condition, the Court might reasonably back-date the disqualification to some extent, so as not to inadvertently punish someone for longer than was required.

• [34] Such an example occurred in R v Keepa.³⁴ In that case, the appellant was on electronically monitored (EM) bail on strict conditions which effectively amounted to a period of disqualification. Grice J agreed that the EM bail period should be taken into account and backdated the disqualification by two months accordingly.³⁵

• [35] However, in the absence of having (actually or effectively) served the disqualification already, or some sort of procedural problem, courts have shown reluctance to backdate a disqualification period on appeal.

• [36] In Moki, the appellant had not driven from the date of the offending because she was under the mistaken impression she was not allowed to.³⁶ The Judge found no error in the sentencing Judge’s decision to refuse to exercise his discretion to backdate the disqualification period.³⁷ The refusal was considered appropriate since the Judge was balancing the need to punish the appellant in that case (who was a repeat offender) while also imposing the least restrictive sentence in the circumstances.³⁸

• [37] The facts in Reid v Police are similar to those in the present case, although in that case the appellant did have a driving-related criminal history.³⁹ There, the

³³ Prowse v Police [2019] NZHC 307.

³⁴ R v Keepa [2019] NZHC 3042.

³⁵ At [33].

³⁶ Moki v Police [20].

³⁷ At [22].

³⁸ At [21].

³⁹ Reid v Police [2021] NZHC 529.

appellant had been sentenced to nine months’ imprisonment on charges that were unrelated to a driving charge. The only penalty imposed on the driving charge was a six-month disqualification commencing on the day of sentencing. The sentencing Judge refused to backdate the disqualification period to take into account time the appellant had been unable to drive while remanded in custody awaiting sentencing. Isac J upheld the Judge’s refusal to backdate the disqualification period, finding no identifiable error in the approach taken by the sentencing Judge in the exercise of their discretion.⁴⁰

• [38] The respondent submits that it would not be appropriate for a Court to backdate a disqualification period such that it would be entirely subsumed by time spent in custody on unrelated charges. Though in Oldfield Andrews J backdated the disqualification by four months, he refused to backdate it to a point where there would be nothing left to serve, stating “I cannot accept that it would be appropriate to backdate [the disqualification] to such an extent that there is virtually no period of disqualification left”.⁴¹

• [39] Indeed, the respondent submits that it will be appropriate for a Court to refuse to backdate a disqualification period to ensure that some effect is felt by the defendant beyond a period of imprisonment, particularly when the time spent in custody is for a sentence on distinct and unrelated charges.

• [40] The respondent’s contention is supported by authority. In Prowse v Police, Hinton J noted it would be appropriate for a sentencing court to future-date a disqualification period if the person is serving a sentence of imprisonment.⁴² Similarly, in Lester v Police the Court on appeal upheld the sentencing Judge’s decision to extend the disqualification period from the minimum period of 12 months to 18 months, to account for the fact that the first six months of the disqualification period would elapse while serving imprisonment on a range of separate charges.⁴³

⁴⁰ At [53].

⁴¹ Oldfield, above n XX, at [22].

⁴² Prowse v Police [2019] NZHC 307 at [28].

⁴³ Lester v Police at [31]–[35].

• [41] The fact the Judge recorded that the defendant was “reasonably close to release” means he would have been aware that commencing the disqualification on the date of sentencing would mean that the disqualification would be in place upon the appellant’s release, with only part of it having elapsed while the appellant carried out his remaining detention.⁴⁴ The respondent submits that in referring to the six-month disqualification as “the only penalty”, the Judge intended for the disqualification period to apply in part beyond the defendant’s release date.⁴⁵

• [42] I accept this argument. If the Judge had acceded to the appellant’s request to backdate the disqualification period so that it would run concurrently to his imprisonment, this would have amounted affectively to a conviction and discharge. This would have meant essentially that the appellant incurred no penalty or consequence for the quite separate driving offending. This would have been inconsistent with the legislative intent behind a mandatory disqualification period and would arguably fail to meet the denunciation and deterrence principles of sentencing.⁴⁶

• [43] The authorities demonstrate the utility of s 85 in appropriate circumstances, particularly where to refuse to backdate the disqualification would result in an injustice to the appellant. The only authorities where a Court has backdated the start date of a disqualification period on appeal are Keepa, Oldfield and Mulligan. None of these cases involved the Court finding an error in the sentencing Judge’s exercise of its discretion under s 85(1).

• [44] Ultimately the decision whether to backdate a period of disqualification is a matter of discretion. The appropriateness of doing so depends on the particular circumstances of the case before the sentencing Judge, and that Judge’s best judgment.

• [45] The test for a successful appeal is not whether the appeal court would have reached a different decision had the matter come before it at first instance, but rather whether the sentencing Judge erred in failing to properly exercise his discretion. In Tutakangahau v R, the Court of Appeal noted that “the appellate court does not just

⁴⁴ Police v Hood [2021] NZDC 20539 at [38].

⁴⁵ At [38].

⁴⁶ Land Transport Act, s 32(3)(b); and Sentencing Act, s 7(1)(f) and (g).

start afresh or simply substitute its own opinion for that of the original sentence”.⁴⁷ The appeal court “will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.⁴⁸ In Palmer v R the Court of Appeal noted that “it can be very difficult in a marginal case to articulate reasons for preferring one approach to another. In consequence, the margin of appreciation extended to sentencing judges is usually significant.”⁴⁹

• [46] In my view, there was no error in the sentencing Judge’s decision not to backdate the disqualification period here.

• [47] The Judge did not fail to provide reasons for choosing not to backdate the disqualification period. He was aware he had the authority to backdate the disqualification period to an earlier date and specifically turned his mind to the back- dating request from the appellant.⁵⁰ The Judge was aware that the appellant was “reasonably close to release” at the date the order was made and consequently therefore that the disqualification period would extend beyond the appellant’s release.⁵¹ Nevertheless, at sentencing, the Judge expressly stated that the appellant would be disqualified for six months “from now” and that he was “satisfied that disqualification from now is appropriate.”⁵² Though not stated explicitly, in referring to the disqualification as “the only penalty” for the driving charge, and knowing that it would continue beyond the appellant’s release, the Judge clearly intended that some sort of penalty would remain for the driving offending independently of and beyond that incurred for the drug-related offending.⁵³ From this there is no doubt as I see it that the decision not to backdate the disqualification to begin at an earlier date was considered and intentional.

• [48] It is also not correct to say that the Judge’s decision not to backdate the disqualification period was contrary to his stated intention, that is that the appellant have a clean slate upon release. It must first be acknowledged that the Judge did not

⁴⁷ Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 [30].

⁴⁸ At [36].

⁴⁹ Palmer v R [2016] NZCA 541 [16]–[19].

⁵⁰ Police v Hood [29].

⁵¹ At [38].

⁵² At [38].

⁵³ At [38].

promise an entirely clean slate, but rather said “effectively you will have a clean slate”.⁵⁴ As a preliminary consideration, this clearly allows for some penalty outstanding upon release. Moreover, this comment was made specifically in relation to the Judge’s decision to wipe the appellant’s outstanding fines and cancel his remaining community work. In so doing, the Judge clearly desired that the appellant upon his release should be unencumbered by these. However, despite this the Judge imposed a disqualification which he knew would continue beyond the appellant’s release. In my view it needs to be accepted that the Judge considered this struck an appropriate and acceptable balance between a desire to allow the appellant to recommence his building business while achieving the legislative intention of there being some penalty for the appellant’s driving offending. In terms of what would be outstanding upon the appellant’s release, this outcome gave the appellant a fresh start upon which to recommence his building business, while ensuring there was some penalty for the driving offending, the disqualification being “the only penalty”.

• [49] The disqualification period imposed by the Judge too was certainly within the range permitted by the legislation. Indeed, it was entirely open to the Judge alternatively to future-date the period of disqualification to begin from the date of the appellant’s release from imprisonment or home detention.⁵⁵ The fact the Judge chose not to do so, but instead opted to begin the disqualification from the date of sentencing, accorded both with the default position under the Act that the disqualification begins from the date the order is made as well as the goal of ensuring that someone isn’t disqualified for longer than is reasonably necessary.⁵⁶ Meanwhile an overlapping but continuing disqualification beyond the appellant’s detention meant there was some independent penalty for the separate and unrelated offending, as envisaged by the inclusion of a minimum disqualification under the Act.

Conclusion

• [50] To recap, Section 85(1) of the Act provides that a period of disqualification starts from the day of sentencing unless the Judge directs otherwise. The decision

⁵⁴ At [39].

⁵⁵ This would have reflected that the disqualification was for a separate and unrelated piece of offending, that of driving while suspended.

⁵⁶ Sentencing Act 2002, s 8(g); and see Hitchens v R CA380/03, 25 March 2004 at [10].

whether to backdate a period of disqualification is a matter of discretion for the sentencing Judge. The appropriateness of doing so depends on the particular circumstances of the case before the sentencing Judge.

• [51] No discernible error occurred here in the sentencing Judge’s approach. The Judge clearly turned his mind to the request and opted not to exercise his discretion to backdate the disqualification, in the knowledge that the disqualification period would extend beyond the appellant’s release. It is acknowledged that the appellant has obviously suffered greatly as a result of his addiction problems. While the Judge expressed the wish that the appellant have “essentially ... a blank slate” upon his release to allow him to rebuild his building business and begin contributing to society again, it appears that with his outstanding fines wiped and remaining community work cancelled, the Judge considered potentially a two-and-a-half month period of disqualification after the appellant’s release would be appropriate. This was clearly within an appropriate range. I see no identifiable error in the Judge’s approach or the exercise of his discretion here.

Result

• [52] For all these reasons this appeal is dismissed.

Gendall J