SADLER v NEW ZEALAND POLICE [2020] NZHC 2681

SADLER v NEW ZEALAND POLICE [2020] NZHC 2681 [13 October 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI 2020-404-000043[2020] NZHC 2681UNDER Rule 8.7 of the Criminal Procedure Rules2012BETWEEN (TE KIRIPUTE) CHRIS SADLERAppellantAND NEW ZEALAND POLICERespondentHearing: 05 October 2020Counsel: Appellant in personB N Kirkpatrick for the RespondentJudgment: 13 October 2020JUDGMENT OF CAMPBELL JThis judgment was delivered by me on 13 October 2020 at 12 noonRegistrar/Deputy RegistrarSolicitors/Counsel:Meredith Connell, AucklandCopy to:AppellantIntroduction[1] Mr Sadler pleaded guilty to a charge of drink driving.1 He was convicted in theAuckland District Court on 7 June 2019. On 11 October 2019 he was sentenced to six months'community detention, disqualified from driving for one month, after which he could apply foran alcohol interlock licence, and ordered to pay fees and expenses of $173.[2] Mr Sadler appeals both his conviction and his sentence. On appeal he alleges errorsby his counsel below, Mr Cooke. Mr Sadler says that Mr Cooke failed to identify a defencethat was open to Mr Sadler, pressured Mr Sadler into pleading guilty, and failed to take propersteps to correct errors in a pre-sentence report.[3] Mr Sadler waived privilege over the communications that he had with Mr Cooke.Mr Sadler, who represented himself on the appeal, swore 17 affidavits in support of his appeal.The Crown filed an affidavit from Mr Cooke. Mr Sadler and Mr Cooke were each cross-examined at the hearing. I then heard submissions from Mr Sadler and from Mr Kirkpatrick,who appeared for the Crown.Factual background[4] On the evening of 25 March 2018 two Police officers observed Mr Sadler speedingon Howe Street, Auckland. The officers indicated, by activating the siren and red and blueflashing lights on their car, that Mr Sadler should stop. Mr Sadler did not do so. The officerspursued him. Mr Sadler pulled into his property on Wellington Street and parked his car. ThePolice officers approached Mr Sadler in his car and questioned him.[5] Mr Sadler appeared to be inebriated. The officers required him to undergo a breathscreening test, then an evidential breath test, and eventually a blood alcohol test. The bloodtest showed that Mr Sadler was well over the limit.[6] Mr Sadler engaged Mr Cooke in relation to the drink driving charge. Mr Cooke saysthat Mr Sadler initially told him that on the evening in question he had not driven on HoweStreet at all.2 This caused Mr Cooke to question whether the Police had any basis for comingon to Mr Sadler's property. Mr Sadler also told Mr Cooke that when the Police officers first1 Land Transport Act 1998, s 56(2) and (4).2 That Mr Sadler initially told Mr Cooke this is confirmed by a file note that Mr Cooke took at thetime.approached him on his property, he had asked them to leave his property. Based on whatMr Sadler had told him, Mr Cooke initially entered a plea of not guilty on behalf of Mr Sadler.[7] Mr Cooke says that Mr Sadler eventually told him that he had in fact driven on HoweStreet that evening. Having been told that, Mr Cooke formed the view that the Police officershad had the authority to come on to Mr Sadler's property, and to then administer the breathtesting procedure. Mr Cooke therefore was satisfied that Mr Sadler would not have a defenceto the charges. He gave that advice to Mr Sadler, and recommended that he plead guilty.[8] At the hearing before me, Mr Sadler was insistent in his evidence that he had askedthe Police officers to leave his property. I accept, for the purposes of this appeal, that he didask the officers to leave. It is consistent with what he told Mr Cooke.Legal framework for the appealsAppeals against conviction following a guilty plea[9] Section 232 of the Criminal Procedure Act 2011 allows for the possibility of an appealagainst conviction following a guilty plea. But it is only in exceptional circumstances that anappeal against conviction will succeed following entry of a plea of guilty. The appellant mustshow that a miscarriage of justice will occur if the conviction is not overturned.3[10] A miscarriage of justice can occur if a defendant has pleaded guilty on the basis ofincorrect advice as to non-availability of defences.4 This was the central plank of Mr Sadler'sappeal. He said that Mr Cooke should have advised him that he had a good defence, arisingfrom Mr Sadler having asked the Police officers to leave his property. Instead, Mr Sadlersays, Mr Cooke pressured him to plead guilty.Appeals against sentence[11] For a sentencing appeal to succeed the sentence generally must be shown to bemanifestly excessive or wrong in principle.5 The Court will not intervene where thesentence is within the range that can properly be justified by accepted sentencing3 R v Le Page [2005] 2 NZLR 845 (CA), [2016] 3 NZLR 1 at [16]. This approach was not changedby s 232 of the Criminal Procedure Act 2011: Wiley v R [2016] NZCA 28 at [9].4 R v Merrilees [2009] NZCA 59 at [34]; Watts v R [2011] NZCA 41.5 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27] and [31]–[35].principles. Whether a sentence is manifestly excessive generally depends on the endsentence imposed, rather than the process by which it is reached.6Issues on appeal[12] For the conviction appeal, two issues arise:(a) Did Mr Cooke fail to advise Mr Sadler that he had a tenable defence?(b) Did Mr Cooke pressure Mr Sadler to plead guilty?[13] For the sentence appeal, there is one issue: was the sentence manifestly excessiveor wrong in principle?Did Mr Cooke fail to advise Mr Sadler that he had a tenable defence?[14] Mr Sadler's key argument on the appeal was that he had a tenable defence, arisingfrom his having asked the Police officers to leave his property. Mr Sadler argued that a Policeofficer's ability to enter private property was similar to that of the general public. Unless theofficer had a search warrant, if the property owner asked the officer to leave, the officer wouldbe required to do so. Mr Sadler referred me to the Trespass Act 1980, and quoted from anarticle that was apparently on the Stuff website.[15] Mr Sadler's argument is correct as a general rule. But Mr Sadler overlooks thatlegislation has made various exceptions to the general rule. This is reflected in part of theStuff quote on which Mr Sadler relied: "[I]f the occupier, expressly or by implication, asks[the Police officers] to leave, in the absence of lawful authority to remain, they must do so."[16] In this case the officers had lawful authority to remain on Mr Sadler's property andadminister the breath testing procedure. They had, by using their siren and red and blueflashing lights, required him to stop. Mr Sadler had not done so.7 The officers pursued himto his property. In those circumstances the effect of s 119 of the Land Transport Act 1998 isthat the officers were authorised to enter Mr Sadler's property and then require him to undergo6 At [36].7 Mr Sadler suggested at one point in his oral evidence before me that he did not see the lights orhear the siren, and so was unaware that he was being pursued. Even if that were so, it would makeno difference to the application of s 119 of the Land Transport Act 1998.a breath test. Mr Sadler's request that the officers leave his property could not remove theofficers' authority under s 119.[17] Mr Cooke understood this. It is why he advised Mr Sadler that he had no defence tothe charge, and recommended that Mr Sadler plead guilty. Mr Cooke was right to do so.Did Mr Cooke pressure Mr Sadler to plead guilty?[18] Because Mr Sadler did not have a tenable defence to the charge, his appeal againstconviction fails. I will, however, go on to address his related allegation that Mr Cookepressured Mr Sadler to plead guilty. Mr Sadler said that this pressure was such that itamounted to duress.[19] I do not accept that Mr Cooke pressured Mr Sadler to plead guilty, let alone thatMr Sadler's plea was made under duress. I have concluded that Mr Cooke correctly advisedMr Sadler that he had no defence and that he accordingly should plead guilty. It is improbablethat in those circumstances Mr Cooke would pressure Mr Sadler to plead guilty. Theallegation of pressure is also inconsistent with other evidence.[20] Mr Sadler entered the guilty plea himself, rather than through Mr Cooke as counsel.Mr Cooke explained that he was concerned that Mr Sadler had initially told him one versionof events and had then told him another. He therefore was not prepared to enter the plea onMr Sadler's behalf. He had Mr Sadler enter the plea himself. This occurred at a case reviewhearing on 7 June 2019. The transcript of that hearing shows that:(a) After the charge was put to him Mr Sadler clarified one aspect of the chargehimself. He then said: "Ah, well look I'll just go with that, I've had adiscussion with my lawyer and he suggested to me that I'll go guilty."(b) The Judge then commented: "You were doing so well Mr Sadler." Mr Sadlerresponded: "Yes Sir, look I've just had a bad run for the last few years."(c) After the Judge entered the conviction Mr Sadler said: "Thank you Sir" andthen "And I'm very sorry, I apologise."[21] Mr Sadler's words were not the words of someone who was entering a plea underpressure.[22] After Mr Sadler's conviction a pre-sentence report was prepared by the Departmentof Corrections. Mr Sadler objected to some of the content of that report. He made a complaintto Corrections about it. As part of his complaint he retyped the report. His retyped versionincludes an admission that on the evening of the offending he had been drinking at two bars,and records that he is remorseful for his offending. This is not consistent with the accountthat Mr Sadler now wishes to project of having been pressured to plead guilty.Was the sentence manifestly excessive or wrong in principle?[23] Mr Sadler was sentenced to six months' community detention, disqualified fromdriving for one month, after which he could apply for an alcohol interlock licence, and orderedto pay fees and expenses of $173.[24] This was Mr Sadler's fifth conviction for drink driving. The maximum penaltyavailable for a third or subsequent drink-driving offence is two years' imprisonment or a fineof $6,000. It was also mandatory for Mr Sadler to be disqualified from driving for at least oneyear, unless an alcohol interlock sentence was ordered instead.[25] Judge Collins' sentencing notes record that the starting point for a sentence for a fifthdrink-driving offence is nine to 12 months' imprisonment. The Judge told Mr Sadler that theonly thing saving him from a sentence of imprisonment was the fact that it had been ten yearssince Mr Sadler's previous drink-driving offence. The sentencing notes also record thatMr Sadler asked for the alcohol interlock sentence, as that was more beneficial to him than ayear's disqualification from driving. On appeal, Mr Sadler did not dispute this.[26] In the circumstances the sentence appears, if anything, lenient. In fact, Mr Sadler didnot argue that the sentence was manifestly excessive or wrong in principle. His argument wasinstead focussed on alleged errors in the pre-sentencing report. But Mr Sadler took theopportunity to correct any alleged errors. He did so by retyping the report. Mr Cooke madethe retyped version available to Judge Collins. In addition, the transcript of the sentencingshows that Mr Cooke explained to Judge Collins some further alleged errors in the reportidentified by Mr Sadler. It follows that, if there had ever been any errors in the pre-sentencereport, they did not affect his sentencing. It also follows that Mr Cooke dealt appropriatelywith Mr Sadler's concerns about the errors.Conclusion[27] I reject Mr Sadler's allegations that there were errors by Mr Cooke. Mr Cookecorrectly identified that the Police were entitled, in the circumstances, to remain onMr Sadler's property and conduct breath screening and testing procedures. Mr Sadler was notpressured to plead guilty. There was no error in the sentence.[28] Accordingly, I dismiss Mr Sadler's appeal against conviction and sentence.______________________Campbell J