BROADHURST v POLICE [2021] NZHC 2433

BROADHURST v POLICE [2021] NZHC 2433 [16 September 2021]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2021-409-000090[2021] NZHC 2433BETWEEN CASEY JAMES BROADHURST(aka Casey James ERIKSON)AppellantAND NEW ZEALAND POLICERespondentHearing: 12 August 2021Appearances: G D Fletcher for the AppellantJ E Lancaster for the RespondentJudgment: 16 September 2021JUDGMENT OF NATION JIntroduction[1] Mr Broadhurst was charged with driving while suspended third or subsequent.1He appeared before Judge Couch in the District Court on 23 June 2021 for sentencing.The Judge sentenced Mr Broadhurst to community detention for six months anddisqualified him from holding or obtaining a driver licence for one year and threemonths from that day.2[2] Mr Broadhurst appeals the disqualification aspect of this sentence. This is onthe basis the District Court Judge dismissed his application under s 94 Land Transport1 Land Transport Act 1998, s 32(1)(c) and 32(4), maximum penalty two years' imprisonment or$6,000 fine.2 Police v Broadhurst [2021] NZDC 13260.Act 1998 (the Act) for a community-based detention in lieu of disqualification undera mistaken belief that Mr Broadhurst could then apply for a limited licence.Facts[3] On 13 April 2020 Mr Broadhurst's driver licence was suspended for threemonths after he accrued in excess of 100 demerit points. Those points were incurredfollowing four incidents of speeding and two of using a mobile phone while driving.The consequences of driving while suspended were explained to Mr Broadhurst.[4] On 8 May 2020 at 5.10 pm, Mr Broadhurst was stopped by Police whoestablished that he was suspended from driving. Mr Broadhurst knew he wassuspended.District Court decision[5] The Judge first noted Mr Broadhurst's 12 previous convictions for drivingwhile disqualified or suspended, and his four similar offences as a youth. He acceptedthe most recent conviction of this nature was from 2014. The Judge adopted a startingpoint of 12 months' imprisonment. After taking into account personal aggravating andmitigating factors, the Judge ultimately commuted this to six months' communitydetention with a curfew that allowed Mr Broadhurst to go to work but, coupled withthis, was the 15 months' disqualification.[6] In the course of his decision, the Judge noted this was the seventh time MrBroadhurst's licence had been suspended for excess demerit points and that he was"rapidly reaching the point where [he] simply should not be on the road at all ever".3The Judge went on to note that Mr Broadhurst said he had started a business thatrequires him to travel to multiple worksites. The Judge was reluctant to negativelyaffect this business and its employees, so imposed a sentence of community detention.[7] In his sentencing remarks, the Judge did not discuss s 94 of the Act, whichallows a community-based sentence to be imposed in lieu of disqualification in certaincircumstances.3 At [6].Principles on appeal[8] 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.4 As the Court of Appeal mentioned in Tutakangahau v R, quoting the lowercourt's decision, a "court will not intervene where the sentence is within the range thatcan properly be justified by accepted sentencing principles".5 It is only appropriatefor this Court to intervene and substitute its own views if the sentence being appealedis "manifestly excessive" and not justified by the relevant sentencing principles.6Submissions[9] Mr Fletcher, counsel for Mr Broadhurst, explained this is a narrow appeal onwhether Mr Broadhurst should have been ordered to undertake community work inlieu of disqualification under s 94 of the Act.[10] Mr Fletcher said a s 94 application had been filed, together with a supportingaffidavit. Although not mentioned in the District Court decision, Mr Fletcher relaysMr Broadhurst's understanding that the s 94 application had been dismissed on thebasis that Mr Broadhurst could apply for a limited licence.[11] Mr Fletcher submitted the Judge mistakenly believed Mr Broadhurst couldapply for a limited licence under s 103 of the Act and, on this basis, disqualified himfrom driving. He explained that Mr Broadhurst is barred from doing this because hepleaded guilty to a charge under s 32(1) of the Act.[12] Because of this alleged error, Mr Fletcher submitted this matter should beremitted back to the District Court to be reconsidered in light of the fact that MrBroadhurst cannot apply for a limited licence. He submitted this is an appropriate4 Criminal Procedure Act 2011, ss 250(2) and 250(3).5 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].6 Ripia v R [2011] NZCA 101 at [15].avenue because there have been changes in Mr Broadhurst's circumstances that werenot reflected in the affidavit he swore approximately eight months ago.[13] Alternatively, Mr Fletcher submitted it was open to this Court to consider thematter de novo if it considers it has sufficient information to do so.[14] For the Crown, Ms Lancaster submitted it was not clear the Judge's decisionhad been influenced by an error over the availability of a limited licence. Shesubmitted the disqualification imposed was appropriate given Mr Broadhurst'soffending history.Discussion[15] I accept that Mr Broadhurst could not apply for a limited licence following hisdisqualification for driving while suspended.7 Section 103(2) reads:103 Persons who may apply to court for limited licence(2) The following persons may not apply under this section for an orderunder section 105 authorising the grant of a limited licence:(a) a person who is disqualified from holding or obtaining a driverlicence by an order made under section 65 (which relates to repeatoffences involving alcohol or drugs):(b) a person who is disqualified from driving a vehicle being used in atransport service (other than a rental service) by virtue of section 63,if the limited licence would authorise the person to drive a vehiclebeing used in a transport service (other than a rental service):(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 while disqualified orcontrary 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 (whichrelate to reckless or dangerous driving, careless orinconsiderate driving causing injury or death, and failing to stopafter an accident); or7 Section 103(2)(c).(ii) for an offence against any of sections 56, 57A, 58, 60, 61, and62 (which relate to offences involving alcohol or drugs); or(iii) for an offence against section 33(1) (which relates to applyingfor or obtaining a driver licence while disqualified from doingso); or(iv) for an offence against a provision of the Transport Act 1962 thatcorresponds to an offence specified in any of subparagraphs (i)to (iii)—committed within 5 years after the commission of any other offencespecified in this paragraph and arising from a different incident(whether or not both offences are of the same kind, regardless ofwhen convictions were entered for those offences):(e) a person who—(i) is subject to an alcohol interlock sentence under section 65AC;or(ii) would have been subject to an alcohol interlock sentence but anexception described in section 65AB(2) applied:(f) a person in respect of whom a driver licence stop order is in effect.[16] In s 103, s 32(1) is explained as relating "to driving while disqualified orcontrary to a limited licence". It is however the preceding words in s 103(2)(c) whichmust be given effect to. The explanation in brackets does not qualify the meaning ofthose preceding words.8[17] Section 32(1) of the Land Transport Act states:32 Contravention of section 5(1)(c)(1) A person commits an offence if the person drives a motor vehicle on aroad—(a) while disqualified from holding or obtaining a driver licence; or(b) contrary to an alcohol interlock licence, a zero alcohol licence, or alimited licence; or(c) while his or her driver licence is suspended or revoked.[18] Mr Broadhurst has now been disqualified for driving while his licence wassuspended. He is thus not able to apply for a limited licence.8 Smith v Police HC Auckland CRI-2010-404-398, 11 March 2011; Misa v Police HC AucklandCRI-2010-404-384, 2 November 2010; Cowan v Police [2016] NZHC 3012.[19] Both counsel acknowledge the central issue is whether Mr Broadhurst shouldhave been sentenced to a community-based sentence rather than disqualification.Section 94 of the Act sets out the circumstances in which this can be done, as follows:94 Substitution of community-based sentences(1) This section applies if—(a) the offender has previously been ordered on conviction foran offence to be disqualified from holding or obtaining adriver 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 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 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 theabsence of special reasons relating to the offence) to order aperson convicted of an offence to be disqualified from holding orobtaining a driver licence, the court may instead make an orderreferred to in subsection (3) if this section applies.(3) If the court sentencing an offender determines under this sectionnot to 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 asentence 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(aa) an alcohol interlock sentence has been ordered under section65AC(1); or(b) the offender is prohibited from applying for a limited licenceunder section 103(2)(a), (b), or (d).[20] The substitution of a community-based sentence for what would otherwisehave been a period of disqualification is not available for an offender who is prohibitedfrom applying for a limited licence under s 103(2)(a), (b) or (d). That prohibition didnot apply to Mr Broadhurst because he was prohibited from applying for a limitedlicence by s 103(2)(c).[21] The District Court records show Mr Broadhurst pleaded guilty to the charge on1 October 2020.[22] Mr Broadhurst affirmed an affidavit of 19 November 2020. It gave an accountof the circumstances in which he was stopped for driving while his licence wassuspended. Mr Broadhurst said he drove only because he needed medication whichhe had to obtain from a pharmacy 26 kilometres from his home. He lived alone andhad to collect the restricted medication himself. In his affidavit, Mr Broadhurst alsoprovided information as to his work for a contracting business and the need for him tohave a licence with that work.[23] In submissions prepared by his then counsel for a sentencing on 25 November2020, Mr Broadhurst sought to avoid disqualification on the basis there were specialreasons relating to the offence.9[24] The Court record shows that on 25 November 2020 Mr Broadhurst was furtherremanded to 23 February 2021. The presiding Judge noted that an application mightbe considered under s 94 but there was also a note "Police not prepared to takedefendant's assertions at face value".[25] A letter of 12 January 2021 was submitted to the Court from someone who, inthe letter, described himself as Mr Broadhurst's "site foreman". In that letter, thewriter said insurance restrictions would not allow someone to operate on a private siteunlicenced. He said Mr Broadhurst "has made progress in leaps and bounds. It hasnot been easy to get to where he is with his past."[26] On 23 February 2021, Mr Broadhurst appeared in Court again. The Judgenoted that Mr Broadhurst made a s 94 application. The Police opposed this. The Judgedirected a formal application was to be made and he made timetabling directions. MrBroadhurst was remanded to 1 April 2021.[27] On 1 April 2021, Mr Broadhurst appeared before Judge Couch. The Judgeremanded Mr Broadhurst to 23 June 2021 to appear for sentence before him with anote this was "to enable defendant to reconsider refusal to consent to home detentionor community detention given my indication that imprisonment is starting point". TheJudge directed an update of the pre-sentencing report.[28] That pre-sentence report advised Mr Broadhurst had started his own buildingcompany and employed over 10 staff. With it was a pre-sentence report of 3 November2020 referring to changes Mr Broadhurst had made in his life and his then employmentas a site foreman for Downer Construction but also his history of non-compliance withcommunity-based sentences.9 Under s 81(1) of the Act.[29] In his sentencing remarks of 23 June 2021, the Judge was clearly concerned atMr Broadhurst's repeated breaches of the road rules. He noted it was the seventh timeMr Broadhurst's driver licence had been suspended for excessive demerit points. Henoted Mr Broadhurst had 12 previous convictions for driving while disqualified ordriving while suspended but acknowledged the most recent such previous convictionhad been in 2014. He considered the seriousness of Mr Broadhurst's offending wassuch as to justify a starting point of 12 months' imprisonment. It was however becausethe Judge did not want to see Mr Broadhurst's new business adversely affected that hewas prepared to sentence him to community detention. The Judge seemed tocontemplate that Mr Broadhurst would need to travel in association with that businessand would have to travel to multiple work sites. The Judge said, if Mr Broadhurstwanted to maintain that business, he had to comply with the law. The Judge did nothowever, in his sentencing remarks, refer to the application that had been madethrough counsel's submissions for a community-based sentence to be imposed insteadof a disqualification.[30] Neither Mr Fletcher nor Ms Lancaster had been involved in the sentencing inthe District Court.[31] I obtained a transcript of what was said during the sentencing. It becameavailable during the hearing of the appeal. The transcript showed that, at variouspoints, Mr Broadhurst was personally involved in exchanges with the Judge. It wasapparent from that exchange that there had previously been an application to avoid adisqualification based on special circumstances and s 81. In relation to that, the Judgeindicated he had not believed much of what had been said in an affidavit in support ofthat "a few months ago", saying "it was just plainly untrue". Mr Broadhurst said "I'lltake that on the chin" and apologised.[32] The Judge however confirmed with Mr Broadhurst's counsel that a submissionwas now being made under s 94. There was a discussion between the Judge andcounsel over s 94. The Judge said it looked like, previously, when he had been drivingwhile disqualified, Mr Broadhurst had managed to persuade a Judge there should beno disqualification and the last time he had been actually disqualified was in 2012 sothat he was not in any cycle of disqualification.[33] In an exchange with counsel, the Judge said he did not accept that driving whilesuspended was the same as if he had been disqualified in a cycle of similar offending.The Judge emphasised that Mr Broadhurst had been disqualified not because he wasin a cycle of offending but because he had been disqualified for driving whilesuspended. He was suspended for offences like speeding or using a cell phone, thematters he received demerits point for.[34] The transcript shows Mr Broadhurst's counsel nevertheless submitted to theJudge that, in Mr Broadhurst's circumstances with his running a business, his partnerabout to have a child and with his living in a rural area, he needed to be able to drive.To that, the Judge asked counsel "well isn't that potential limited licence application?"Counsel replied "possibly as well Sir but I would submit that it's an overlappingground".[35] That was followed by the Judge saying it was just not appropriate for MrBroadhurst to think he could keep on driving as he liked and expect that he should beallowed to keep on driving. The Judge in that context did comment "if he candemonstrate extreme hardship, then he may be able to obtain a limited licence to dothose things necessary to relieve the extremity of the hardship ".[36] Mr Broadhurst's counsel suggested an extended period of communitydetention would be quite onerous. To that, the Judge said that might be, but thealternative had been for Mr Broadhurst to be sentenced to imprisonment. At that pointMr Broadhurst intervened and said "I'll take the alternative to prison, Sir".[37] With the benefit of the transcript alongside the sentencing notes, I do notconsider the Judge refused to substitute a community-based sentence for a period ofdisqualification because he considered Mr Broadhurst might be able to obtain a limitedlicence to limit the hardship that could be caused by a disqualification. In theexchanges that took place with counsel, there was some suggestion that a limitedlicence might be a possibility. The Judge had however indicated that, given theparticular circumstances of Mr Broadhurst's offending and the offending which hadled to his licence suspension, it was not the sort of case where s 94 should be used. Heindicated the disqualification would involve hardship but so would a potentialsentence of imprisonment which the Judge had considered might be necessary.Knowing that, Mr Broadhurst, who seems from the transcript to have been quitecomfortable with the Court process, intervened and said he would take the alternative.In the context of that discussion, the alternative was disqualification.[38] So, against that background, I must decide whether there was an error in theJudge imposing the sentence with a 15 month period of disqualification and notimposing some further community-based sentence in place of a disqualification.[39] The Judge noted Mr Broadhurst had been suspended on 13 April 2020 forexcessive demerit points incurred with four incidents of speeding and two of using acell phone while driving. These were road safety issues. The Judge noted this hadbeen the seventh time Mr Broadhurst's licence had been suspended for excessivedemerit points.[40] The Judge had correctly identified that s 94 is intended to permit a sentencingJudge to impose a community-based sentence where an offender has been previouslysentenced to disqualification and a further order for disqualification is not likely to beeffective.[41] Mr Broadhurst had been disqualified from driving on 23 February 2012 fornine months for driving while his licence was suspended. He was then sentenced tointensive supervision and community detention. He was sentenced on 4 December2012 for two offences of driving while disqualified. In respect of each offence theJudge found there were special circumstances not to impose a further disqualification.[42] On 13 June 2013, Mr Broadhurst was sentenced to home detention on a numberof charges. One of the offences was operating a motor vehicle causing a sustainedloss of traction, on which he was disqualified from driving for eight months from 13June 2013.[43] On 24 February 2014, he was sentenced for driving while disqualified on 23January 2014. Again, the Judge found there were special circumstances for there tobe no disqualification.[44] Mr Broadhurst has two convictions for dangerous driving, including aconviction on 9 October 2018 for dangerous driving on 3 October 2017. For thatoffence, he was sentenced to 200 hours' community work and placed under intensivesupervision for one year. No disqualification was imposed.[45] Mr Broadhurst had two convictions for reckless driving, one for operating avehicle causing sustained loss of traction and three for failing to stop. He had receiveddemerits points for more than 60 driving offences. Six of those were incurred in thelast two years, with four for exceeding the speed limit and two for driving while usinga cell phone.[46] There was no evidence before the Judge to indicate that Mr Broadhurst wouldnot be able to manage his new business if he did not have a licence.[47] I am satisfied the Judge refused to apply s 94 to avoid a disqualification, butthis was because of Mr Broadhurst's offending history, not because the Judge thoughtMr Broadhurst might be able to apply for a limited licence. The Judge had correctlyidentified that the purpose of s 94 was not to permit the Court to avoid imposing afurther disqualification in Mr Broadhurst's particular circumstances.[48] Given Mr Broadhurst's particular circumstances and his offending history, I donot consider the period of disqualification, coupled with community detention, wasmanifestly excessive.[49] The appeal is dismissed.Solicitors:G D Fletcher, Barrister, ChristchurchCrown Solicitor, Christchurch.