SADLER v NEW ZEALAND POLICE [2021] NZCA 219

SADLER v NEW ZEALAND POLICE [2021] NZCA 219 [31 May 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA604/2020[2021] NZCA 219BETWEEN CHRIS SADLERApplicantAND NEW ZEALAND POLICERespondentHearing: 13 May 2021Court: Clifford, Simon France and Edwards JJCounsel: Applicant In PersonJ A Eng for RespondentJudgment: 31 May 2021 at 12.30 pmJUDGMENT OF THE COURTThe application for leave to bring a second appeal against conviction andsentence is declined.____________________________________________________________________REASONS OF THE COURT(Given by Clifford J)Introduction[1] Mr Sadler pleaded guilty in the District Court to one charge of driving withexcess blood alcohol (third or subsequent).1 Mr Sadler was subsequently sentencedon 11 October 2019 to six months' community detention, disqualified from holding or1 Land Transport Act 1998, s 56(2) and (4).2obtaining a drivers' licence for one month, after which he could apply for an alcoholinterlock licence, and ordered to pay fees and expenses of $173.2[2] Mr Sadler's appeals against his conviction and sentence were dismissed bythe High Court on 13 October 2020.3 Mr Sadler now seeks leave to bring secondappeals in this Court.4Background[3] On the evening of 25 March 2018 Mr Sadler failed to stop after police officerswho observed him speeding activated the siren and red and blue flashing lights on theirpolice car. The police pursued Mr Sadler to his property, which he had driven ontoand parked. The police officers spoke to Mr Sadler in his car. Mr Sadler appearedto be inebriated. He was required to undergo a breath screening test, then an evidentialbreath test and eventually a blood alcohol test. Mr Sadler was well over the bloodalcohol limit.[4] Mr Sadler pleaded guilty after taking legal advice.[5] Mr Sadler based his appeals to the High Court on the proposition thathis counsel, Mr Cooke, should have advised him he had a good defence, arising fromMr Sadler having asked the police officers to leave his property.5 Having heardevidence from Mr Sadler and Mr Cooke, and having considered the 17 affidavitsMr Sadler had sworn in support of his appeal, Campbell J found that, as Mr Cookehad advised Mr Sadler, the police were lawfully on his property.6 Mr Sadler's requestthat they leave did not change that. Mr Cooke had neither failed to advise Mr Sadlerhe had a tenable defence, nor pressured Mr Sadler to plead guilty.7 Mr Sadler's appealagainst conviction failed accordingly.2 Police v Sadler [2020] NZDC 26646 [District Court judgment].3 Sadler v Police [2020] NZHC 2681 [High Court judgment].4 Criminal Procedure Act 2011, ss 237(1) and 253(1).5 High Court judgment, above n 3, at [14].6 At [16].7 At [17] and [19].3[6] As to Mr Sadler's sentence appeal, the Judge was satisfied that the sentenceimposed by the District Court was, if anything, lenient.8 Mr Sadler's drink-drivingconviction was his fifth.9 Mr Sadler's appeal against his sentence accordinglyfailed also.Analysis[7] In support of his application for leave to bring a second appeal, Mr Sadlerpoints again to what he says were inadequacies in the legal advice he received and theinjustice of his conviction and sentence.[8] The Criminal Procedure Act 2011 provides that this Court must not grant leavefor a second appeal against conviction or sentence unless it is satisfied that theproposed appeal involves a matter of general or public importance, or that amiscarriage of justice may have occurred, or may occur, unless the appeal is heard.10The Court's decision in McAllister v R confirms the test is a high one.11[9] Mr Sadler submitted that the exhibits he had filed in this Court supported thatsubmission. Those exhibits were:1B: Copy of material from communitylaw.org.nz;2B: Formal record of dismissal of appeal to High Court togetherwith a copy of High Court judgment;3B: Email from Mr Chris Sadler to Auckland Legal Aid Office,recording his dissatisfaction with aspects of his legalrepresentation;4B: Transcript of legal discussion in the District Court, in particularregarding time of commencement of the drivingdisqualification;8 At [26].9 At [24].10 Sections 237(2) and 253(3).11 McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764.45B: Email dated Friday, 15 January 2021 from Mr Sadler to CrownLaw (Mr Eng); and6B: Formal document charging Mr Sadler with the offence ofdriving with excess blood alcohol filed in the District Court atAuckland on 6 June 2018.[10] Mr Sadler emphasised the significance for him, as a disabled person, of theeffect of his disqualification, albeit that that has now expired, and — we infer — thepossible ongoing significance of the interlock condition. His submission was that hisdisqualification caused him undue hardship, including when attending to liferequirements such as shopping or doctors' appointments. It also impacted on hisability to, for example, undertake full time study.[11] Having considered Mr Sadler's oral and written submissions, we are satisfiedthat the criteria for a second appeal by Mr Sadler against his conviction and sentenceare not satisfied.[12] Nothing in Mr Sadler's submissions, or the material comprised by his exhibits,challenge the appropriateness of the sentence, upheld by the High Court, imposed onhim by the District Court following his guilty plea. Nor do those materials addanything to the matters considered by the High Court when dismissing Mr Sadler'sappeal against his conviction.[13] Before us Mr Sadler submitted that a sentence of community work wasavailable and should have been imposed. That submission is incorrect. It wasmandatory for Mr Sadler, as the High Court pointed out, to be disqualified fromdriving for at least one year, unless an alcohol interlock sentence was orderedinstead.12 Furthermore, as Judge Collins observed, the starting point for a sentencefor a fifth drink-driving offence was nine to 12 months' imprisonment.13 The onlything that saved Mr Sadler from a sentence of imprisonment in the District Court was12 Land Transport Act, s 56(4)(b) and (4A)(b).13 District Court judgment, above n 2, at [5]. See also Clotworthy v Police HC WanganuiCRI-2003-483-13, 25 September 2003.5the fact it had been over 10 years since his most recent drink-driving offence.14As Campbell J recorded in his judgment, Mr Sadler did not dispute the fact that beforethe District Court he had asked for the alcohol interlock sentence, as that was morebeneficial to him than a year's disqualification from driving.15[14] Mr Sadler's complaint, aired we infer for the first time in the material beforethis Court, that Mr Cooke had wrongly suggested to the Judge that Mr Sadler's periodof disqualification should commence at 6 pm on the day of his conviction, rather than12 am, whilst understandably irritating to Mr Sadler, has no further significancethan that.Result[15] The application for leave to bring a second appeal against conviction andsentence is declined.Solicitors:Crown Law Office, Wellington for Respondent14 At [6].15 High Court judgment, above n 3, at [25].