ROGERS v NZ POLICE [2019] NZHC 684

ROGERS v NZ POLICE [2019] NZHC 684 [3 April 2019]IN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYI TE KŌTI MATUA O AOTEAROAAHURIRI ROHECRI 2019-441-5[2019] NZHC 684BETWEEN DAVID MARTIN ROGERSAppellantAND NEW ZEALAND POLICERespondentHearing: 2 April 2019 (via AVL)Counsel: P Jensen for AppellantM Mitchell for RespondentJudgment: 3 April 2019JUDGMENT OF ELLIS J[1] Mr Rogers is 29 years old. He has a limited criminal history, but it includes anumber of driving convictions, including:(a) 3 March 2008 – driving with excess blood alcohol (under 20) for whichhe was disqualified for three months;(b) 20 September 2010 – driving with excess blood alcohol for which hewas disqualified for six months;1(c) 19 December 2011 – driving with excess blood alcohol (x 2) for whichhe was disqualified from driving for 15 months;1 The date of this conviction is rather unclear from Mr Rogers' Criminal and Traffic History.(d) 12 September 2018 – driving with excess blood alcohol for which hewas disqualified from driving for one year and one day and given80 hours of community work.[2] On 27 December 2018 Mr Rogers was caught driving in breach of that lastdisqualification. His explanation at the time was that he was going to the shops to buya cold drink.Sentencing in the District Court[3] The transcript of Mr Rogers' appearance on 30 January 2019 begins with theentry of his guilty plea through the duty lawyer, Mr Jensen, who then sought a sentenceof community work and the application of s 94 of the Land Transport Act 1998 (theAct) to avoid further disqualification.2[4] Mr Jensen has since candidly explained that, based on his experience in theNapier District Court, it was his expectation that s 94 would simply be applied withoutthe need for supporting evidence addressing the considerations which s 94 says arerelevant to the exercise of that discretion. The fact that the police did not oppose (orsupport) the application under s 94 in the District Court perhaps provides inferentialsupport for the contention that this is, indeed, regarded as routine practice.[5] In any event, the transcript shows that, on this occasion, the District CourtJudge (who does not usually sit in the Hawke's Bay) simply:(a) referred to Mr Rogers' past driving offending;(b) queried whether s 94 could apply given the extant disqualification;(c) clarified the start date of any future disqualification; and2 In general terms, s 94 applies to offenders who have previously been disqualified and who arefacing further disqualification. It enables the Court to substitute a community based sentenceinstead of such further disqualification if, after considering certain specified matters, it considersfurther disqualification would be inappropriate.(d) then sentenced Mr Rogers to 100 hours community work (cumulativeon the 80 hours he was sentenced to on 12 September 2018) and afurther six month period of disqualification (cumulative on the one yearand one day disqualification, to commence on 13 September 2019).[6] No reasons were given for rejecting the application of s 94 or for the lengthand cumulative application of the sentence of community work.The parties' positions on appeal[7] Mr Rogers has appealed his sentence on the grounds that the community worksentence imposed was excessive, and that the Judge should have applied s 94. In hiswritten submissions Mr Jensen rather self-deprecatingly said:If the District Court Judge was disinclined to apply s 94, as was the case here,it is incumbent on the District Court Judge to be fair to the defendant, and curbthe enthusiasm of the duty lawyer, and adjourn sentencing to allow thedefendant to instruct counsel or apply for legal aid, and mount a moreorganised plea.To allow the duty lawyer to prattle on, then sentence contrary to all that wasdiscussed, without giving any real reasons why, is most unfair on thevulnerable defendant, and on this ground alone, counsel respectfully submits,there is a mistake in law, and the appeal ought to be granted.[8] Mr Jensen asked that the appeal be allowed and that the sentencing be remittedback to the District Court so that a PAC report could be ordered and all the sentencingoptions explored, including the alternative options of supervision and/or a fine.[9] On behalf of the police, Ms Mitchell opposed the appeal on the grounds thatthe sentence was within the available range and that no material in support of theapplication of s 94 had been provided (either in the District Court or on appeal). Sheaccepted that the absence of reasons in the District Court meant that this Court wouldessentially need to approach the matter afresh.Discussion[10] This is a rather unusual case. My preference is to determine the appeal on themerits but I do not have the necessary information to enable me to do so. There isnecessarily a concern in terms of understanding why the District Court Judge imposedthe sentence he did; the cumulative 100 hours community work does on its face seemrelatively swingeing.3 And there may or may not have been grounds for applyings 94; no inquiry was made.[11] While it may be that the sentence imposed was within the available range,something does seem to have gone awry here. Section 94 is a remedial provision.Mr Rogers should have been given the opportunity to instruct counsel about anycircumstances relevant to its possible application and he should have been heard onthe nature and extent of any community-based sentence. The fact that neither of thesethings happened is, in my view, a qualifying error.[12] Equally, however, any expectation that any District Court might somehow beinvolved in "rubber stamping" the application of s 94 in cases such as this, withoutfirst establishing the necessary grounds, is not to be countenanced and the present caseshould be a salutary lesson in that regard.Result[13] The appeal is allowed. The disqualification and sentence of community workare quashed. The matter is remitted back to the District Court for resentencing, afteraffording Mr Rogers the opportunity to file an affidavit addressing matters relevant tothe exercise of the power in s 94. No doubt his lawyer will, by the time ofresentencing, also be in a position to address other relevant matters. If a PAC reportis considered necessary for that purpose, then the necessary direction can be sought.____________________________Rebecca Ellis J3 There is a presumption in s 57(1) of the Sentencing Act 2002 against the imposition of acumulative sentence where an offender is already serving an extant community work sentence.