NICHOLSON v POLICE [2021] NZHC 960

NICHOLSON v POLICE [2021] NZHC 960 [3 May 2021]IN THE HIGH COURT OF NEW ZEALANDTAURANGA REGISTRYI TE KŌTI MATUA O AOTEAROATAURANGA MOANA ROHECRI-2021-463-20[2021] NZHC 960BETWEEN ETHAN JOHN NICHOLSONAppellantAND NEW ZEALAND POLICERespondentHearing: 3 May 2021(Heard at Rotorua)Appearances: T Clee (via VMR) for the AppellantD McWilliam for the RespondentJudgment: 3 May 2021ORAL JUDGMENT OF GAULT JSolicitors / Counsel:Mr T Clee, Barrister, AucklandMr D McWilliam, Pollett Legal Ltd, Office of the Crown Solicitor, Tauranga[1] Mr Nicholson appeals against his sentence of 60 hours' community work anddisqualification from holding or obtaining a driver's licence for one year, imposed byJudge T R Ingram in the District Court at Tauranga on 22 February 2021,1 followinghis guilty plea to a charge of driving while his licence was suspended or revoked.2[2] Mr Nicholson only challenges the period of disqualification. He does so onthe grounds that the period of disqualification was one year and one day and in anyevent the Judge should have exercised his discretion under s 94 of the Land TransportAct 1998 (the Act) to substitute a community-based sentence for the period ofdisqualification, that being the least restrictive outcome appropriate in thecircumstances.Facts[3] On 24 December 2020, Mr Nicholson was stopped by police for an unrelatedtraffic matter while he was driving northwards on the Waikato Expressway nearMeremere.[4] Mr Nicholson had been convicted of driving while suspended or disqualifiedon previous occasions in 2009 to 2020 – in June 2009, May 2010 and September 2012.Then, on 12 November 2020 he had been suspended from holding a driver's licencefor three months for excess demerit points.District Court decision[5] Having referred to Mr Nicholson's prior convictions briefly, and the fact he isself-employed, the Judge sentenced Mr Nicholson to 60 hours' community work anddisqualified him from holding or obtaining a driver's licence for one year "startingnow,"3 that is, on 22 February 2021.1 New Zealand Police v Nicholson [2021] NZDC 4186.2 Land Transport Act 1998, ss 32(1)(c) and 32(4).3 New Zealand Police v Nicholson [2021] NZDC 4186 at [3].Further evidence[6] Mr Nicholson seeks to adduce further evidence on appeal alleging counselerror (that he was not advised that to avoid disqualification he would need to applyunder s 94 rather than seek a limited licence) and addressing the s 94 factors.Mr McWilliam, for the Police, does not oppose the admission of the fresh evidence.He has, however, filed an affidavit in response dealing with counsel error. I admit thefurther evidence in the circumstances.Approach on Appeal[7] The starting point is that to succeed on a first appeal against sentence,the appellant must satisfy the appeal court that there has been an error in the impositionof the sentence and that a different sentence should be imposed.4 The appeal courtwill intervene if the sentence is manifestly excessive or wrong in principle.5 It willnot ordinarily intervene where the sentence is within the range that can be properlyjustified by accepted sentencing principles. The appeal court's focus is on the finalsentence imposed rather than the process by which the sentence was reached.[8] Here, the Judge was not asked to substitute a community-based sentence forthe period of disqualification under s 94. However, this Court has taken the view thatit has the power to hear an application for the exercise of the s 94 discretion evenwhere that issue was not raised in the District Court at first instance,6 though in somecases has considered it more appropriate to quash the sentence and remit the matter tothe District Court for further consideration.7 Either course of action conforms withthe approach applicable on appeal, as set out above, and this Court's powers on asuccessful first appeal against sentence.8 In these circumstances, a relatively lenientattitude may be adopted to the admission of fresh evidence on the appeal. Here,Mr McWilliam does not oppose the Court considering s 94 de novo. Thus, while theordinary test on an appeal against sentence applies, the question, in essence, is whetheran order under s 94(3) ought to have been made taking into account the fresh evidence.4 Criminal Procedure Act 2011, ss 244, 250(2) and (3).5 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.6 Thompson v Police [2017] NZHC 2347; Reddy v Police [2020] NZHC 197.7 See, for example, Nair v Police [2014] NZHC 2859.8 Criminal Procedure Act 2011, s 251(2).Statutory scheme[9] It is convenient at the outset to refer to the relevant provisions of the Act.Section 5 prohibits a person from driving a motor vehicle on a road if a person doesnot hold an appropriate current driver licence, or if they have been disqualified fromholding or obtaining a driver licence, or if their licence has been suspended orrevoked.9 The section further provides that a person who is disqualified from holdinga driver licence may not obtain such a licence,10 and that a person whose licence issuspended may not hold or obtain a licence.11[10] Section 32(1) provides that a person who drives while disqualified fromholding or obtaining a licence, or whose licence was at the time suspended, commitsan offence. Pursuant to s 32(3), for a first or second offence against s 32(1), a personis liable to a maximum of three months' imprisonment or a fine not exceeding $4,500and must be disqualified from holding or obtaining a driver licence for six months, orlonger. Pursuant to 32(4), for a third or subsequent offence against s 32(1), as appliedin Mr Nicholson's case, the maximum penalty increases to two years' imprisonmentor a fine of $6,000, and the mandatory minimum period of disqualification to one year.[11] A period of disqualification starts, subject to any specific provision of the Actor order of the court to the contrary (neither of which arises here), on the day on whichthe order was made.12 That this means the disqualification is retrospective to thebeginning of that day is clear from s 85(2), which provides that the person did notcommit an offence because they drove a vehicle on that day before the making of theorder.[12] It is of significance whether, on a third or subsequent conviction, a person isdisqualified from holding or obtaining a licence for 12 months (such as for one yearand one day). Under s 83(1), where a person is disqualified from holding or obtaininga licence for more than 12 months, the person's licence remains "of no effect after thedisqualification ends" until the person applies to the New Zealand Transport Agency9 Land Transport Act 1998, ss 5(1)(a) and (c) and 5(3).10 Section 5(2).11 Section 5(3).12 Section 85.for a new licence and completes any courses, tests, or examinations required by theAgency. This is different from persons disqualified for one year or less, whoselicences are (pursuant to s 82(1)) suspended during the period of disqualification, butthen automatically restored.[13] Here, the Judge imposed the minimum period when he said one year "startingnow".[14] The provisions of s 32(3) and (4) regarding mandatory disqualification mustbe read in conjunction with ss 94(1) to (3). These relevantly provide:(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; 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 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) [](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.[15] Sections 94(1) to (3) are disapplied pursuant to s 94(4) in certain circumstancesthat are not applicable here.13Counsel error[16] The evidence indicates that Mr Nicholson was advised about s 94 before hissentencing, but I accept it is possible he was unaware he could not apply for a limitedlicence. That appears to be the explanation for his failure to seek, or decision not toseek, a s 94 substitution at sentencing. It appears limited licence was not discussed sothe complaint is one of omission. Mr McWilliam does not concede there was counselerror, and I am not satisfied that there was but, in any event, it is common ground thatI should consider s 94 afresh.Substitution under s 94 – applicable principles[17] Disqualification is the ordinary consequence and as Lang J noted in Thomas vPolice,14 the public interest will generally favour a period of disqualification beingimposed. But as Mr Nicholson had previously been disqualified from driving, theJudge could have imposed a community-based sentence if satisfied it wasinappropriate to order disqualification having regard to the statutory factors set out ins 94(1)(b).13 That is, where ss 63 or 65 of the Act apply. Those provisions relate to offences against ss 56-62(which relate to drink and drug driving and driving causing injury or death) that are repeat offencesor involve vehicles being used in a transportation service. Sections 94(1)-(3) are also disapplied,pursuant to s 94(4), where a person has been given an alcohol interlock sentence under s 65AC(1).Also, the discretion as to substitution is unavailable where a person is disqualified from obtaininga limited licence under ss 103(2)(a), (b), or (d), which serve to disqualify from holding a limitedlicence persons who repeatedly offend in a particular manner within a specified period. Thoseprovisions are also not engaged here – though Mr Nicholson is prohibited (under s 103(2)(c)) fromobtaining a limited licence as a person disqualified from holding or obtaining a licence on hisconviction for driving while disqualified.14 Thomas v Police HC Tauranga CRI-2010-470-15, 13 May 2010, at [29]-[30].[18] As to whether disqualification is inappropriate having regard to the statutoryfactors, the cases make clear that substitution under s 94 is available not only in caseswhere it is appropriate to break a cycle of recidivism but also where the interests ofthe offender and the public are otherwise better served by a community-basedsentence, for example, to avoid loss of employment or other particular hardship.15[19] On the other hand, disqualification has been upheld in cases where this Courtconsidered the deterrent purposes of a sentence of disqualification were required inthe public interest in the circumstances of the case.16[20] The Court is required to make a choice of a penalty that more effectively meetsthe purposes of sentencing.17 These, as s 7 of the Sentencing Act 2002 reflects, are ofcourse multifaceted.Is disqualification inappropriate here?The circumstances of the case and of the offender[21] Turning to the statutory factors. First, the circumstances of the case and of theoffender. Mr Nicholson's affidavit states that he is a 29 year old man with experienceworking as a builder who has returned to Auckland recently, having been living inTauranga at the time of the offence, because of a downturn in construction work sinceMay 2020. Since his return to Auckland, he has gained employment with AucklandTransport, working in maintenance, which job requires him to work irregular hoursday-and-night at locations across the Auckland public transport and roading networks.Often, he explains, he is required to work at night when maintenance activities areundertaken to minimise impact on transport networks. I infer he would be unable to15 Yu v Police HC Auckland CRI-2006-404-273, 10 November 2006, at [7]-[8], where Asher J, notingthat disqualification would impact severely on Mr Yu's prospective employment as an electrician,substituted 50 hours' community work for six months' disqualification; Wadsworth v Police [2014]NZHC 3302 at [18]; Skelton v Police [2015] NZHC 1735, where there was a significant publicinterest in Mr Skelton's being able to participate in the upbringing of his child, access to whomdepended on his being able to drive. That, together with the desirability of Mr Skelton's beingmade able to support himself by gaining employment in the transport industry, and the relativelyminor character of his relevant land transport offending, pointed in favour of substitution; Burgessv Police [2021] NZHC 362.16 For example, Power v Police HC Christchurch CRI-2008-409-123, 15 August 2008 and Parata vPolice [2016] NZHC 3026.17 Stacey v Police [2018] NZHC 3280 at [24].rely on public transport to get to and from work, given the hours involved. Also, he isrequired to drive a van to transport his tools. He says that without a driver's licencehe will be unable to maintain his current employment and will suffer hardship as aresult. The correspondence and terms of his employment attached to his affidavit areconsistent with this. Any employment he could gain with his skill-set, he explains,would require him to transport tools about. He has been able to maintain hisemployment, and meet his financial obligations, only because his disqualification hasbeen suspended pending appeal.[22] The move to Auckland has also allowed him to live closer to his 11 year olddaughter from a previous relationship, who lives with her mother in Papakura. Heexplains that the reason he was found driving northwards on the Waikato Expresswayon 24 December 2020 was because he wanted to see her before Christmas, as she wasgoing to the South Island with her mother for Christmas and over the New Year'sholiday. As a consequence of being stopped while making that trip, Mr Clee advisesfrom the bar, Mr Nicholson has not seen his daughter since late last year. Withoutemployment, Mr Clee submits, Mr Nicholson will be unable to see his daughter.[23] I accept Mr Nicholson's circumstances weigh against disqualification.The effectiveness or otherwise of a previous order of disqualification[24] This is a neutral factor. As indicated, this is not a case where substitution isrequired to avoid a "wheel of offending",18 albeit Mr Nicholson may have been in sucha position a number of years ago.The likely effect on the offender of a further order of disqualification[25] As indicated, I accept Mr Nicholson's circumstances weigh againstdisqualification. The likely effect of disqualification is loss of his employment anddifficulty seeing his daughter.18 As Tipping J put it in Grimwood v Ministry of Transport HC Christchurch AP184/91, 16 August1991.Public interest[26] As indicated, the public interest will generally favour a period ofdisqualification being imposed when dealing with repeat offenders. This isMr Nicholson's fourth conviction for driving while disqualified or suspended.Disqualification is consistent with purposes of sentencing such as promotingaccountability and a sense of responsibility for offending, denunciation anddeterrence.[27] But I consider in this case these purposes can be achieved with a community-based sentence. I also consider that there is a public interest in enabling Mr Nicholsonto continue his work and avoid adverse financial and family consequences.Mr McWilliam acknowledged that Mr Nicholson was not stopped for poor driving onthis occasion. Since Mr Nicholson's last disqualification arose as a result of excessdemerit points, it is encouraging that he has paid to attend a defensive driving coursethis month, which I understand starts today.Conclusion[28] On the material before the Judge, no error has been identified. The sentenceimposed was well within the allowable range and was not manifestly excessive.But I consider that based on the further evidence, disqualification was inappropriateand a community-based sentence was appropriate.[29] However, I do not accept Mr Clee's submission in his written submissions thatthe disqualification should be quashed with no uplift in the hours of community work.As Mr Clee acknowledged today, in previous cases, additional periods of communitywork have been imposed where substitution has occurred on appeal.19 The increasemay be reduced where a substantial period of disqualification has already been servedpending appeal. That is not the case here although the disqualification was in placefor a period of weeks before the sentence was suspended pending appeal.19 See, for example, Thomas v Police HC Tauranga CRI-2010-470-15, 13 May 2010; Police v Body[2013] NZHC 1586; Collett v Police (no 2) [2017] NZHC 1012; Pou v Police [2018] NZHC 787.[30] Mr Nicholson evidently can undergo community work as he is doing so underthe existing sentence.[31] In the circumstances, I consider an additional 60 hours of community work isappropriate in substitution for disqualification in this case.Result[32] The appeal is allowed.[33] The sentence of disqualification from holding or obtaining a driver's licencefor one year is quashed. In its place, I substitute an additional 60 hours of communitywork pursuant to s 94(3) of the Land Transport Act 1998.[34] The appeal is otherwise dismissed.________________________________Gault J