TRAINOR v POLICE [2019] NZHC 209

TRAINOR v POLICE [2019] NZHC 209 [19 February 2019]IN THE HIGH COURT OF NEW ZEALANDINVERCARGILL REGISTRYI TE KŌTI MATUA O AOTEAROAWAIHŌPAI ROHECRI-2018-425-000033[2019] NZHC 209BETWEEN BRADEN KENNETH TRAINORAppellantAND NEW ZEALAND POLICERespondentHearing: 4 February 2019Appearances: K Barker for the AppellantS N McKenzie for the RespondentJudgment: 19 February 2019JUDGMENT OF NATION J[1] Offenders who commit certain driving offences may be disqualified fromdriving. For particular offending, disqualification is generally mandatory. Theimposition of disqualification and the length of disqualification is all to do with roadsafety.1 It has been accepted that the purpose of imposing further periods ofdisqualification where an offender has driven while disqualified is usually not so muchabout safety as punitive, to ensure there is a real sanction where an offender has showna disregard for a sentence imposed by the Court and the order for theirdisqualification.21 Leaupepe v Police [2015] NZHC 1766 at [8].2 Lambert v Police HC Rotorua AP 62/90, 11 October 1990, at 7.[2] Under s 94 Land Transport Act 1998 (the Act), in certain circumstances, theCourt has a discretion to impose a community-based sentence in place of a furtherperiod of disqualification. In that context, the Court has recognised that:3It may be inappropriate to order disqualification where a person is caught in acycle of offending by driving while disqualified for which orders forcontinued extensions of disqualification orders are imposed.[3] If s 94 permits the imposition of a community-based sentence instead ofdisqualification, whether or not a Judge should do so is a matter of discretion. It is anissue on which any two Judges might reach different views. A Judge in the High Courthas gone so far as to say "it will usually be better that the penalty [for driving whiledisqualified] take some form other than an additional disqualification".4 In contrast,it has also been said that there is an advantage to the public understanding that theusual punishment for driving while disqualified will be a further period ofdisqualification and this effective sanction would be undermined if the discretionagainst imposing a further discretion is exercised too readily.5[4] On this appeal, I am required to consider whether a further term ofdisqualification for driving while disqualified should have been imposed. As it hasturned out, by reference to s 94(4)(b), I also have to decide whether the sentencingJudge, by law, was even permitted to impose a community-based sentence instead ofdisqualification.Factual background[5] Mr Trainor is aged 32. He has a number of driving-related convictions:Result date Offence date Offence Sentence24/05/2018 06/03/2018 Drove a motor vehiclein a dangerous mannerCommunity detention –24/05/2018 – 6 months /disqualified from driving –24/05/2018 – 6 months3 Police v Body [2013] NZHC 1586 at [5], citing Mitchell v Police (1989) 5 CRNZ 190 (HC) at193; Lambert v Police, above n 2, at 6 (discussing the predecessor of s 94).4 Lambert v Police, above n 2, at 5.5 Ministry of Transport v Ure HC Wellington AP 79/91, 9 July 1991 at 9.Result date Offence date Offence Sentence24/05/2018 06/03/2018 Failed to stop whenrequired – 3rd orsubsequent offenceCommunity work (SA) –24/05/2018 – 180 hours /community detention –24/05/2018 – 6 months /disqualification from driving –24/05/2018 – 2 years24/05/2018 06/03/2018 Drove while licencesuspended or revokedCommunity work (SA) –24/05/2018 – 180 hours /community detention –24/05/2018 – 6 months /disqualification from driving –24/05/2018 – 6 months18/01/2018 07/12/2017 2 x drove a motorvehicle in a dangerousmannerFor each charge: Communitywork (SA) – 24/05/2018 – 180hours /disqualification from driving –09/03/2018 – 6 months18/01/2018 07/12/2017 Failed to stop whenfollowed by red/blueflashing lightsDisqualified from driving –09/09/2018 – 6 months18/01/2018 07/12/2017 Failing to remainstopped for anenforcement officerDisqualification from driving –09/09/2018 – 6 months19/12/2013 28/09/2013 Operated a vehiclecarelesslyFine $350Court costs $13028/07/2006 06/05/2006 Driving in a dangerousmannerDisqualification from driving –28/07/2006 - 6 months /Fine $400, Court costs $130.[6] On Wednesday 15 August 2018 at approximately 12.30, Mr Trainor wasdriving a vehicle on John Street, Invercargill when it was stopped by Police. Headmitted being disqualified and stated this was the stupidest thing he had ever done.[7] In a provision of advice to Courts, Corrections advised that Mr Trainor hadsaid it was a "spur of the moment decision to drive", knew immediately when caughtit was "irresponsible and stupid" and said he took responsibility for his actions andwas prepared to face the consequences. Because of his consistent offending history,he was assessed as a moderate risk of reoffending and a moderate risk of harm toothers, given previous violent-related offending. Corrections reported that Mr Trainorbelieved he had taken steps to reduce his risk of reoffending in a similar way by sellinghis vehicle and considering alternative travel arrangements. Corrections confirmed hehad engaged with a counsellor at Nga Kete Matauranga Pounamu Charitable Trust toaddress his acknowledged poor decision making and the way previously and currentlythis was problematic for him. Corrections recommended a sentence of communitywork to hold Mr Trainor to account for his offending and, if the Court deemedappropriate, a rehabilitative sentence of supervision to give him the opportunity toattend a departmental programme which would address his poor decision making andlifestyle choices which continued to see him reoffend.District Court decision[8] Judge Callaghan recognised that while this offending "would seem to be aninnocuous breach (if they ever can be said to be that)", when looking at his history MrTrainor "obviously [had] some serious issues with driving". The Judge referred to MrTrainor being on a sentence of community detention and Corrections' recommendationof community work.[9] The Judge said:[6] It is a bit of an enigma to sentence you because of the length of thedisqualification that has already been imposed. However, you need to knowthat you are not allowed to drive, and while you say you have disposed of themotor vehicle, you are living in a remote location which might be a temptationto you.[7] I am not minded to invoke s 94 on this occasion. I am going to dealwith you by way of sentence of community work, and also a disqualificationwhich will be on top of the disqualification that you are already under.[10] The Judge then ordered Mr Trainor to do 140 hours of community work andsaid:[9] You are disqualified for nine months, taking into account the fact thatit is your second driving whilst you were not permitted to do so within arelatively short space of time (May 2018 and now in August 2018). Thatdisqualification will commence on 25 May 2020.Principles on appeal[11] Appeals against sentence are allowed as of right by s 244 of the CriminalProcedure Act 2011, and must be determined in accordance with s 250 of that Act. Anappeal against sentence may only be allowed by this Court if it is satisfied there hasbeen an error in the imposition of the sentence and that a different sentence should beimposed.6 As the Court of Appeal indicated in Tutakangahau v R, an appellate courtwill not generally intervene where the sentence is within the range that can properlybe justified by accepted sentencing principles.7 It is only appropriate for this Court tointervene and substitute its own views if the sentence being appealed is "manifestlyexcessive" and not justified by the relevant sentencing principles.8Submissions[12] In his notice of appeal, Mr Trainor asserted the sentencing Judge had erred inrefusing to exercise his discretion to substitute a community-based sentence, pursuantto s 94(1).[13] In written submissions for the Police, Ms McKenzie submitted the Court couldnot substitute a community-based sentence for disqualification because of theprohibition in s 94(4)(b) that applied where a person was subject to disqualificationfor dangerous driving for example, committed within five years of another suchoffence. She submitted that Mr Trainor was sentenced on 31 October 2018, when hewas subject to a sentence of six months' disqualification imposed on 24 May 2018 fordangerous driving that had occurred on 6 March 2018. He had also been convicted oftwo charges of driving dangerously for offences committed on 7 December 2017.[14] Ms Barker submitted the restriction on the application of s 94 in s 94(4)(b)does not apply to the disqualification commencing on 25 May 2020 which is thesubject of the appeal "because that was a disqualification for driving while disqualifiedalone and not for dangerous driving". She accepted that Mr Trainor would have beenprohibited from making applications under s 94 for the imposition of a community-based sentence instead of disqualification for dangerous driving offences.[15] Ms Barker submitted the Judge thus could have exercised the discretionavailable to him in s 94 to substitute a community-based sentence for a further periodof disqualification, and had failed to have regard to the factors he was required to6 Criminal Procedure Act, ss 250(2) and 250(3).7 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].8 Ripia v R [2011] NZCA 101 at [15].consider under s 94(1)(b) and (c). She submitted that, having regard to all thosefactors, a sentence of community work would have been a more effective andappropriate form of punishment for his driving while disqualified. She submitted thisCourt should impose a sentence of 40 hours' community work in addition to the 140hours' community work imposed in the District Court in substitution for the furtherperiod of 9 months' disqualification.Analysis[16] Section 94 states:94 Substitution of community-based sentences(1) This section applies if—(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 that theoffender be disqualified from holding or obtaining a driverlicence; and(c) the court considers that it would be appropriate to sentence theoffender to a community-based sentence in accordance withPart 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 insubsection (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 the offencethat, in accordance with the provisions of the Sentencing Act2002, it may impose in addition to the community-basedsentence; 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 the offenderwould otherwise have been liable to disqualification fromholding or obtaining a driver licence.(4) This section does not apply if—(b) the offender is prohibited from applying for a limited licenceunder section 103(2)(a), (b), or (d).[17] Relevantly, s 103 provides:103 Persons who may apply to court for limited licence(1) Unless prevented by subsection (2), the following persons mayapply for an order under section 105 authorising the grant of alimited licence:(a) persons who are disqualified by an order made under this Actfrom holding or obtaining a driver licence:(2) The following persons may not apply under this section for an orderunder section 105 authorising the grant of a limited licence:(c) a person who is disqualified from holding or obtaining a driverlicence by an order made on his or her conviction for an offenceagainst section 32(1) (which relates to driving whiledisqualified or contrary to a limited licence):(d) a person who is disqualified by an order made on his or herconviction—(i) for an offence against any of sections 35, 36, 38, and 39(which relate to reckless or dangerous driving, careless orinconsiderate driving causing injury or death, and failingto stop after an accident);committed within 5 years after the commission of anyother offence specified in this paragraph and arising froma different incident (whether or not both offences are of thesame kind, regardless of when convictions were enteredfor those offences):Jurisdiction to exercise the s 94 discretion[18] The discretion given to the Court to impose a community-based sentence ratherthan order a period of disqualification, provided for in s 94(2), is not available if theoffender is prohibited from applying for a limited licence under s 103(2)(d)(i) for anoffence against s 35(1)(b), i.e. driving a motor vehicle at a speed or in a manner whichis dangerous, where any such offence was committed within five years of that sameoffence or any other offence specified in s 103(2)(d).[19] Here, as Ms McKenzie submitted, Mr Trainor was disqualified on 24 May 2018for dangerous driving, committed on 6 March 2018. That dangerous driving wascommitted within five years of his earlier dangerous driving on 7 December 2017 forwhich he was also convicted. He was subject to six months' disqualification for theseearlier dangerous driving offences at the time he came to be sentenced on 31 October2018 for his driving while disqualified on 15 August 2018.[20] The appropriate time for considering whether s 94 might apply is at sentencing,when the Court was considering whether there should or had to be a further period ofdisqualification. It is clear from the wording of ss 94(1)(c) and 94(3) that s 94 is aboutwhat a Court might do when sentencing an offender. In this instance, that time was 31October 2018.[21] On 31 October 2018, Mr Trainor was subject to a sentence of six months'disqualification imposed on 24 May 2018 on the charges of driving in a dangerousmanner. He was also subject to disqualification from driving for two years from 24May 2018 for failing to stop when that was his third offence.[22] The Judge said the nine months' disqualification he was imposing for drivingwhile disqualified was not to start until 25 May 2020, i.e. when the two year period ofdisqualification, to which he was already subject, ended. The fact the further periodof disqualification was not to begin until 25 May 2020 does not change the fact that,at the time the Judge had to consider whether s 94 permitted the imposition of acommunity-based sentence rather than a further period of disqualification, Mr Trainorwas already disqualified from 24 May 2018 for dangerous driving, an offence that wascommitted within five years of an earlier such offence.[23] It is correct that s 94, in combination with s 103, permits a defendant to applyfor a community-based sentence instead of further disqualification when a Judge hasto sentence him for driving while disqualified. That is not so when the offender isdisqualified by an order made on his conviction:9 for an offence against any of sections 35, 36, 38 and 39 (which relate toreckless or dangerous driving, careless or inconsiderate driving causing injuryor death, and failing to stop after an accident committed within 5 years afterthe commission of any other offence specified in this paragraph and arisingfrom a different incident (whether or not both offences are of the same kind,regardless of when convictions were entered for those offences).[24] Ms Barker's submission requires me to interpret the words in s 103(2)(d) as ifit begins "a person who is liable to be disqualified by an order made on his or herconviction" for the specified offences. I cannot interpret s 103(2)(d) in that way.[25] I thus accept the submission for the Police that on 31 October 2018 the Judgecould not have exercised a discretion under s 94 to impose a community-basedsentence in lieu of further disqualification.Merits of the s 94 appeal[26] In any event, I would also not have held that the Judge was in error in notconsidering all matters in s 94(1)(b) if the discretion under s 94 had been available tohim. It is clear from his sentencing remarks that s 94 had been brought to his attention.I thus infer that he would have had drawn to his attention the matters referred to in s94(1)(b)(i)-(iv). Thinking that the discretion under s 94 was available to him, whatweighed most significantly with him was the deterrent aspect of sentencing and theneed for a penalty by way of disqualification so that Mr Trainor knew he was notallowed to drive. These matters were important to the Judge because Mr Trainor hadbreached his disqualification within a relatively short period after the disqualificationhad been imposed in May 2018.9 Land Transport Act, s 103(2)(d).[27] The sentences imposed, as expressed in the Judge's remarks, mean that, as aresult of the sentences imposed on 24 May 2018, Mr Trainor is disqualified fromdriving for two years from 24 May 2018 (for failing to stop) and for a further ninemonths from 25 May 2020. He is thus disqualified from driving until 24 February2021. This was understandably of some concern to the Judge, hence his comment thatit was "a bit of an enigma to sentence you because of the length of the disqualificationthat has already been imposed".[28] During the hearing, I enquired of counsel as to whether under the Act it wasmandatory that any further period of disqualification had to begin at the conclusion ofany period of disqualification which had already been imposed.[29] Ms Barker later referred me to s 85:85 When disqualification starts(1) If an order is made by a court under any Act disqualifying a personfrom holding or obtaining a driver licence, the period ofdisqualification starts on the day the order is made unless the courtotherwise directs or that Act otherwise provides.(3) In the case of a person who is at the time of the order alreadydisqualified from holding or obtaining a driver licence, the period ofdisqualification ordered starts when the order or the last of the ordersto which the person is already subject ceases to have effect.[30] Section 85(1) is subject to s 85(3) so that, if Mr Trainor had to be disqualifiedfor driving while disqualified, his period of disqualification had to begin when the lastof the orders for disqualification to which he was already subject had ceased to haveeffect.10 The further period of disqualification thus had to begin on 25 November2020.[31] I can understand why Mr Trainor's situation posed something of an enigma forthe presiding Judge.10 Police v Rihari HC Whangarei CRI-2010-488-11, 26 April 2010.[32] In commenting on the rationale for s 94, the authors of Becroft and Hall'sTransport Law recognised that it is:11 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.I agree with those comments.[33] The purpose of a further period of disqualification for driving whiledisqualified is primarily punitive. Here, a punitive sentence could have been imposedand was imposed in part through a sentence of community work.[34] It seemed from the Department of Corrections' advice to the Court that someprogress had been made by Mr Trainor in recognising the error of his ways, in sellinghis car and taking advantage of the counselling that was available to him to reduce hisrisk of reoffending. The further period of disqualification was likely to cause himsome particular hardship through the fact he lived in what the Judge described as a"remote location". Counsel told me Mr Trainor has a young family, including a childborn in December 2018. Mr Trainor would not be able to apply for a limited licenceon the basis the disqualification would result in extreme hardship to him or unduehardship to anyone else in relation to the further period of nine months'disqualification, because that disqualification relates to the offence of driving whiledisqualified.12[35] The driving which was in breach of the disqualification was described by thesentencing Judge as "innocuous". I infer this was said to contrast the offending forwhich he was being sentenced to much of his earlier driving offences which involveddangerous driving and failures to stop when required to do so. It was not "innocuous"11 Andrew Becroft and Geoff Hall Becroft and Hall's Transport Law (online ed, LexisNexis) at[LTA94.2], endorsed by Asher J in Emani v Police HC Auckland CRI-2009-404-235, 28September 2009.12 Section 103(2)(c).in that it involved a wilful disregard of the orders for disqualification made by theCourt.[36] Because Mr Trainor was already subject to two years' disqualification that wasnot going to end until 24 May 2020, the imposition of a further term of disqualificationmeant that he would be unable to drive until 2 February 2021, about 28 months afterhe was sentenced on 31 October 2018.[37] In these circumstances, with the imposition of the nine months' disqualificationon top of the two years' disqualification to which Mr Trainor was already subject, therewas an increased risk that Mr Trainor would get onto the treadmill of reoffendingwhich, if available, the use of s 94 might have avoided for the benefit of both him andthe public.[38] Thinking that he could exercise a discretion available to him under s 94, theJudge decided, on all the information before him, it was not appropriate to impose asentence which would avoid disqualification, particularly so having regard to the wayin which he had breached his disqualification so soon after it was imposed. Thedecision involved the exercise of a discretion. It was a conclusion reasonably open tohim. It is not necessary or appropriate for me to make a separate determination on thepoint.[39] The Land Transport Act provides that, if a person commits a first or secondoffence for driving while disqualified, the Court must order the person to bedisqualified from holding or obtaining a driver licence for at least six months.13 In theparticular circumstances of this case, for the reasons discussed, s 94 could not be usedto allow the Court to impose a community-based sentence instead of a period ofdisqualification. Pursuant to s 85(3), the further period of disqualification thesentencing Judge imposed had to begin at the end of the two year period ofdisqualification for which Mr Trainor was already subject. By law, the Judge had toimpose a disqualification period of at least six months in the way that he did.13 Section 32(3)(b).[40] The Judge considered a disqualification period of nine months was appropriate.Having regard to Mr Trainor's driving history and the proximity of his driving whiledisqualified to the time that disqualification was imposed, it cannot be said adisqualification for nine months rather than six months was manifestly excessive.[41] The appeal is dismissed.Solicitors:Eagles Eagles & Redpath, InvercargillPreston Russell Law, Invercargill.