POU v NZ POLICE [2018] NZHC 787

POU v NZ POLICE [2018] NZHC 787 [24 April 2018]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGĀREI TERENGA PARĀOA ROHECRI-2018-488-000011[2018] NZHC 787BETWEEN ANAMARAEA ERIN POUAppellantAND NEW ZEALAND POLICERespondentHearing: 24 April 2018Appearances: D Sayes for the AppellantJ Scott for the RespondentJudgment: 24 April 2018JUDGMENT OF WOOLFORD JSolicitors: Marsden Woods Inskip Smith (Office of the Crown Solicitor), WhangareiCounsel: Mr D Sayes, WhangareiIntroduction[1] On 14 February 2017, Anamaraea Erin Pou was sentenced to six monthscommunity detention on two charges of driving while disqualified, having beenconvicted at least twice previously of the same or similar offence. She was alsodisqualified from holding or obtaining a driver's licence for 15 months, commencingon 26 April 2017.[2] On 2 August 2017, Ms Pou pleaded guilty to a further two charges of drivingwhile disqualified, having been convicted at least twice previously of the same orsimilar offence, one charge of failing to stop for a traffic officer and one representativecharge of breaching the community detention order by failing to remain at thedetention address during curfew hours. On the same day, Ms Pou did not oppose anapplication by the Department of Corrections to cancel the sentence of communitydetention and substitute another sentence. The sentence of community detention wasthereupon cancelled.[3] On 19 October 2017, Judge McDonald resentenced Ms Pou on the original twocharges of driving while disqualified to three months home detention. The Judge alsosentenced Ms Pou to four months home detention on the charge of breaching thecommunity detention order. Then, on the two new charges of driving whiledisqualified, the Judge sentenced Ms Pou to seven months home detention. Allsentences of home detention were concurrent. Finally, the Judge convicted anddischarged Ms Pou on the failing to stop charge.[4] Counsel submitted that instead of sentencing Ms Pou to another term ofdisqualification on top of her current term, the Judge should invoke the provisions ofs 94 of the Land Transport Act 1998 (the Act) and sentence Ms Pou to a community-based sentence instead of another order for disqualification. The Judge said he did nothave jurisdiction to do so and therefore disqualified Ms Pou from holding or obtaininga driver's licence for another 12 months, commencing on 26 July 2018.[5] Ms Pou now appeals against sentence on the sole issue of the applicability ofs 94 of the Act. She submits that the Judge erred in law when he held that the Courthad no jurisdiction to apply s 94 of the Act.District Court judgment[6] The District Court Judge dealt with the issue of s 94 of the Act as follows:1The remaining question I have to decide is whether I can evoke [invoke] s 94and not disqualify you? I have read Mr Sayes submissions. His argument isthat although I sentence you to home detention which is not a community-based sentence, I can also sentence you to community work and attach the s 94order to that. He submits that, in my liberal reading, in accordance with theinterpretation act of s 94 that is allowed. In particular he refers me tos 94(3)(b) which states the imposition of such a sentence does not limit oraffect the power of the Court to impose any other sentence for the offence;that in accordance to the provisions of the Sentencing Act I may impose anaddition to that community-based sentence.He submitted that I could sentence you for the base offending; that is thebreaches of community detention and driving whilst disqualified to homedetention, but then sentence you to community work which would give mejurisdiction not to disqualify you.With the greatest respect to Mr Sayes I disagree. In my view s 94(3)(b) relatesto matters such as confiscation of motor vehicles or reparation or the like. Inmy view having sentenced you to home detention there is no jurisdiction forme to invoke s 94.I make no decision as to whether, if I did have jurisdiction, I would becausethat in my view is not required.Respondent's position[7] The Crown accepts that the Court did have jurisdiction to consider exercisingits discretion to impose a community-based sentence in lieu of a period ofdisqualification. The Crown further submits that if this Court determines that therewas jurisdiction and therefore there was an error and allows the appeal, the mattershould be remitted back to the Judge to consider the application whether a community-based sentence in lieu of disqualification should be substituted.Discussion[8] Section 94 of the Act provides:94 Substitution of community-based sentences(1) This section applies if—1 New Zealand Police v Pou [2017] NZDC 23981 at [13] – [16].(a) the offender has previously been ordered on conviction for anoffence to be disqualified from holding or obtaining a driverlicence; 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 ofdisqualification made in respect of the offender; and(iii) the likely effect on the offender of a further order ofdisqualification; and(iv) the interests of the public,—considers that it would be inappropriate to order thatthe offender be disqualified from holding or obtaininga driver licence; and(c) the court considers that it would be appropriate to sentencethe offender to a community-based sentence in accordancewith Part 2 of the Sentencing Act 2002.(2) Despite any provision of this Act that requires a court (in the absenceof special reasons relating to the offence) to order a person convictedof an offence to be disqualified from holding or obtaining a driverlicence, 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 notto make an order of disqualification,—(a) the court must impose a community-based sentence on theoffender; and(b) the imposition of such a sentence does not limit or affect thepower of the court to impose any other sentence for theoffence that, in accordance with the provisions of theSentencing Act 2002, it may impose in addition to thecommunity-based sentence; and(c) in determining the appropriate sentence to be imposed on theoffender in respect of the offence, the court must take intoaccount the gravity of the offence and the fact that theoffender would otherwise have been liable to disqualificationfrom holding or obtaining a driver licence.(3A) For the purposes of subsection (3)(a), the court may impose a sentenceof supervision or intensive supervision as a community-basedsentence 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 licenceunder section 103(2)(a), (b), or (d).[9] While s 94 does not in itself provide any clear legislative statement as to itspurpose, my attention has been drawn by counsel to Hall's Sentencing, which makesthe following observation (adopted and approved of by Asher J in Emani v Police):2While the rationale of the section has to be gleaned by inference, its primaryfocus would appear to be to avoid the cumulative effect of adding periods ofdisqualification each time an offence is committed, and to get persons off thetreadmill of re-offending. The section is a recognition, first, of the fact that itis of little benefit to the community or the offender for that person to continueto be disqualified for what young people (as the bulk of those disqualifiedinevitably are) recognise as impossibly long periods, with the consequence ofbreach upon breach, conviction upon conviction, and disqualification upondisqualification and, secondly, that in appropriate cases the alternative of acommunity-based sentence is more likely to be complied with by the offenderand is therefore likely to be a more effective punishment.[10] Looking more closely at the provisions of s 94, Ms Pou is eligible in terms ofs 94(1)(a) in that she has previously been ordered on conviction for an offence to bedisqualified from holding or obtaining a driver licence. Secondly, she is not ineligibleunder s 94(4) as she was not charged under s 63 (relating to transport service vehicles)or under s 65 (relating to repeat drink or drug related driving offences). Nor she isprohibited from applying for a limited licence under s 103(2)(a) (relating to repeatdrink or drug related driving offences), (b) (relating to transport service vehicles) or(d) (relating to miscellaneous offences).[11] Having determined that Ms Pou is eligible under s 94, the next step is toconsider the factors set out in s 94(1)(b) of the Act to determine whether it would beinappropriate to order Ms Pou to be disqualified again, with the rider that the Courtshould consider on the other hand, whether it would be appropriate to sentence Ms Pouto a community-based sentence in accordance with the provisions of the SentencingAct in lieu of disqualification.[12] The section then directs the Court as to the procedure to be followed if itdetermines that Ms Pou ought not to be disqualified. Section 94(3) directs the Courtthat in those circumstances the Court must impose a community-based sentence onMs Pou, but then states that the imposition of such a sentence does not limit or affectthe power of the Court to impose any other sentence for the offence that, in accordance2 Emani v Police HC Auckland, CRI-2009-404-235 at [8].with the provisions of the Sentencing Act, it may impose in addition to the community-based sentence.[13] Mr Sayes submits that there are, in effect, two distinct sentences imposed uponMs Pou. Disqualification is in itself a separate and significant penalty, which is quitedistinct from any other sentence. He submits that a sentence of community workwould be appropriate in lieu of another period of disqualification and points to s 19 ofthe Sentencing Act, which permits combinations of a sentence of community work andhome detention.[14] The real issue is whether there is any limitation in s 94(3)(b), such that itapplies only to sentences such as confiscation of motor vehicles or reparation or thelike, as suggested by the Judge.[15] I am of the view that, with respect, the Judge fell into error when he consideredthat the term of disqualification imposed was more or less an adjunct to the sentenceof home detention. It is, however, quite distinct and there is nothing in the wording ofs 94(3)(b) which limits the jurisdiction of the Court in the way suggested by the Judge.[16] This type of sentencing can be seen in the case of Collett v Police where theCourt considered imposing a sentence of community work in lieu of disqualification,together with a sentence of imprisonment.3 It was only because of the fact that a termof community work and imprisonment is not a permissible combination of sentencesin terms of s 19 of the Sentencing Act, that the appeal failed – Collett v Police (No. 2).43 Collett v Police [2017] NZHC 489.4 Collett v Police (No. 2) [2017] NZHC 1012.[17] In those circumstances, the period of disqualification is quashed. The appealis allowed and remitted back to the District Court for consideration of Ms Pou'sapplication under s 94 to substitute a sentence of community work for a further periodof disqualification.________________________________Woolford J