MISA v POLICE [2023] NZHC 720

MISA v POLICE [2023] NZHC 720 [3 April 2023]IN THE HIGH COURT OF NEW ZEALANDTAURANGA REGISTRYI TE KŌTI MATUA O AOTEAROATAURANGA MOANA ROHECRI-2022-463-157[2023] NZHC 720BETWEEN CHRIS MU MISAAppellantAND NEW ZEALAND POLICERespondentHearing: 3 April 2023Appearances: J W Howell and K R O'Connor for AppellantJ Manera for RespondentJudgment: 3 April 2023ORAL JUDGMENT OF JOHNSTONE JThis judgment was delivered by me on 3 April 2023 at 2.56 pmRegistrar/Deputy RegistrarSolicitors:Adams Law, TaurangaCrown Solicitor, Tauranga[1] On 20 October 2022, Chris Mu Misa was sentenced having pleaded guilty to acharge of driving with excess breath alcohol, as a third or subsequent such offence.He was sentenced to four months' community detention, nine months' supervision,and disqualification from holding or obtaining a driver licence for one year and oneday. In imposing that sentence, Judge Cameron declined Mr Misa's application unders 94 of the Land Transport Act 1998, for a community-based sentence instead of theorder for disqualification that was (in the absence of special reasons relating to theoffence) otherwise required. Mr Misa appeals against the sentence imposed, and inparticular against the decision to decline the s 94 application.Background[2] Mr Misa's offending was detected when he was stopped by police at acheckpoint at about 2.12 am on Saturday, 11 June 2022. His breath was found tocontain 483 micrograms of alcohol per litre. He said he was "just going home".[3] At the time, Mr Misa was 38 years old. He had excess breath alcoholconvictions stemming from 2006, 2008 (two convictions), 2009 and 2016. He alsohad convictions for driving while disqualified. Those convictions stemmed from hisdisqualifications for his first 2008 drink driving offence and his 2016 drink drivingoffence. But his disqualifications stemming from his convictions in 2006 and 2009,and his second 2008 offence, were served without giving rise to further suchconvictions.District Court decision[4] Judge Cameron referred to affidavit evidence establishing that Mr Misa wouldordinarily have a role transporting his six children to school or other events when hispartner cannot, and that he would need to drive both to and while at work. Thenadopting NZ Police submissions, his Honour observed:[9] In the result, this is a situation of a repeat drink-driver seeking to avoida disqualification on grounds of work and because of convenience in thefamily context. Against that there is the repeat drink-driving. Ms O'Connorpoints to the defendant having undergone a 10 week drink-driving course in2016, the date of his most recent previous offending, but sadly this has notprevented the defendant from committing the same offence.[10] I also agree with the Sergeant's observation that the disqualificationswhich have followed each of his five previous convictions have actually onthe face of it acted to reduce the risk of this repeat offending by the defendant.So they have had an effect and in my view a further 12 month disqualificationwith a limited licence is also likely to have the necessary deterrent effect andto protect the public.[11] For those reasons I consider it would be in the interests of the publicthat this defendant be further disqualified from holding or obtaining a driver'slicence and accordingly the application fails.Principles on sentence appeals[5] Section 250 of the Criminal Procedure Act 2011 governs first appeals againstsentence such as this. Such appeals must be allowed if the Court is satisfied that forany reason there is an error in the sentence imposed and a different sentence should beimposed. The focus is on the end sentence rather than the process by which thesentence is reached. The Court will not intervene where the sentence is within rangeand can be justified by accepted sentencing principles.1Principles on substitution of community-based sentences for driver licencedisqualification[6] Section 94 of the Land Transport Act relevantly provides:(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; and1 Ripia v R [2011] NZCA 101 at [15]; Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at[36]; and Larkin v Ministry of Social Development [2015] NZHC 680 at [26].(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 ofthe Sentencing 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.(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).[7] As observed in Becroft & Hall's Transport Law (NZ), s 94 is inserted "into anAct that provides generally for mandatory minimum periods of disqualification forcertain offences, a feature which was maintained throughout successive amendmentsto its predecessor, the Land Transport Act 1962. For this reason, case law hasdeveloped on the premise that mandatory minimum disqualification will remain thenormative sentence, with s 94 being reserved for exceptional cases, or perhaps moreaccurately, clear [cases] only."22 Becroft and Hall's Transport Law (NZ) at LTA 94.2 headed 'Purpose and function of s 94'.[8] Further:[I]ts primary focus would appear to be to avoid the cumulative effect of addingperiods of disqualification each time that offence is committed, and to getpersons off the treadmill of reoffending.3[9] In Governor v Police, the Court of Appeal observed:4Section 94 was enacted to address the fact that many offenders fail to complywith court-ordered periods of disqualification and, if this happens sufficientlyoften, that offender becomes caught up in a never-ending cycle ofdisqualification. The person is disqualified for some offence, say carelessdriving; breaches the disqualification and is charged accordingly; a furtherperiod of disqualification is imposed; this is then breached; and this breach isfollowed by a further charge, and on it goes. The rationale for s 94 was that acommunity-based sentence might be more likely to engender compliance withcourt orders, with the added advantage of being a step short of imprisonment.Appellant's submissions[10] For Mr Misa, Mr Howell submitted that Judge Cameron failed to give weightto Mr Misa's reduction in offending over time: referring to the seven- and six-yeargaps in offending between 2009, 2016 and 2022. He further submitted that the Judgeignored the PAC report writer's assessment of low risk of reoffending, and an alcoholreport indicating de-escalation in offending, along with completion of a 10-week anti-drink drive programme in 2016. He submitted that the Judge failed to have regard toMr Misa's rehabilitative efforts by way of self-referral to the Salvation Army and theHanmer Clinic following his 2022 offending.[11] On this basis, Mr Howell submitted that the Judge's assessment that a limitedlicence was the more appropriate pathway was wrong, pointing out there was noguarantee Mr Misa would be successful in obtaining a limited licence.Analysis[12] As Mr Manera submitted for NZ Police, when addressing Mr Misa's drivinghistory Judge Cameron chose to refer to the number of Mr Misa's convictions, the factthat the 2016 conviction was that most recent to his 2022 offending for sentence, and3 Ibid.4 Governor v Police [2021] NZCA 403 at [11].that his offending therefore spanned the date range 2006 to 2022. But it is not apparentthe Judge therefore failed to observe that most of Mr Misa's drink driving occurred in2008 and 2009. His Honour's analysis of the pattern of Mr Misa's offending suggeststhat he took that pattern into account.[13] Indeed, that point is supported by Judge Cameron's observation that thedisqualifications following Mr Misa's five previous drink driving convictions had onthe face of it acted, at least to some extent, to reduce the risk of Mr Misa's repeatoffending. While Mr Misa had driven with excess breath alcohol during some of hisdisqualification periods, he had not done so during others.[14] Further, Mr Misa's apparent low risk of reoffending, the material suggesting ade-escalation in the offending, and his rehabilitative efforts prior to sentencing in 2022,appear to me to be capable of being viewed as supporting the effectiveness of previousorders and of a further order of disqualification in terms of ss 94(1)(b)(ii) and (iii). Itis not inevitable Mr Misa will be granted a limited licence to meet his childcare andwork commitments. But I do not infer from Judge Cameron's remarks that his Honourconsidered Mr Misa to be automatically entitled to such a licence. It would be highlyunusual for a District Court Judge used to dealing with limited licence applications ona regular basis to view Mr Misa's case as any different to those others, requiringdetermination in light of all the personal circumstances prevailing at the time theapplication is made.[15] In light of the rationale for s 94 expressed above, the Judge in my view wascorrect to consider it appropriate that Mr Misa be disqualified in the usual way, withhis entitlement to apply for limited licence remaining available for the purpose ofameliorating, if successful, the family and work impacts which informed hisapplication. More succinctly, the Judge was correct not to consider a further period ofdisqualification would be "inappropriate".5 On that basis, the jurisdiction to exercisethe s 94 discretion did not arise.5 Refer: s 94(1)(b), Land Transport Act 1988Result[16] The appeal is dismissed._____________Johnstone J