JUDD v POLICE [2023] NZHC 1001

JUDD v POLICE [2023] NZHC 1001 [1 May 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2022-404-000443[2023] NZHC 1001IN THE MATTER OF an appeal against refusal to grant s 94applicationBETWEEN GEOFFREY IAN JUDDAppellantAND NEW ZEALAND POLICERespondentHearing: 1 May 2023Appearances: C Mitchell for AppellantH T Reid for RespondentJudgment: 1 May 2023(ORAL) JUDGMENT OF EDWARDS JCounsel/Solicitors:C Mitchell, AucklandMeredith Connell (Office of the Crown Solicitor), Auckland[1] On 15 November 2022, Mr Judd was convicted and sentenced byJudge Bennett in the North Shore District Court of one charge of driving with excessbreath alcohol.1[2] Mr Judd applied under s 94 of the Land Transport Act 1998 to have themandatory disqualification period substituted for a community-based sentence. TheJudge declined the application. Mr Judd now appeals.Offending[3] The offending arose out of events on 6 May 2022. At about 7.35 pm thatevening Mr Judd was driving his car on the Northern Motorway, Oteha.[4] He was stopped by police as the car tail lights were not switched on. A strongsmell of alcohol was detected coming from the vehicle. An evidential breath testreturned a positive result of 768 micrograms of alcohol per litre of breath. Inexplanation, Mr Judd said he had been drinking at the pub before driving home.[5] Mr Judd had two previous convictions. On 1 July 1999 he was convicted ofdriving with excess blood alcohol, and on 13 February 2003 he was convicted ofdriving with excess breath alcohol over 400 micrograms of alcohol per litre of breath.[6] Mr Judd was charged with driving with excess breath alcohol third orsubsequent pursuant to ss 56(1) and 56(4) of the Land Transport Act 1998. Thatoffence attracts a maximum sentence of two years' imprisonment or a $6,000 fine.The Court must order the person to be disqualified from holding or obtaining a driver'slicence for more than one year.Approach on appeal[7] Section 94 of the Act permits a sentencing Judge to impose a community-basedsentence instead of a mandatory period of disqualification. An order is made if theCourt considers it inappropriate to order that the offender be disqualified from holding1 Police v Judd [2022] NZDC 26071.or obtaining a driver's licence, and it would be appropriate to sentence the offender toa community-based sentence.2[8] In considering whether it would be inappropriate to order disqualification, theCourt has regard to:3(i) the circumstances of the case and of the offender; and(ii) the effectiveness or otherwise of a previous order of disqualificationmade in respect of the offender; and(iii) the likely effect on the offender of a further order of disqualification;and(iv) the interests of the public.[9] An appeal from a refusal to substitute a sentence of community work is anappeal against sentence. This Court must allow the appeal if satisfied that, for anyreason, there is an error in the sentence imposed on conviction, and a different sentenceshould be imposed.4 Whether a sentence is manifestly excessive is to be examined interms of the end sentence given, rather than the process by which the sentence wasreached.5District Court judgment[10] The Judge noted that she had given a lot of consideration to the s 94application.6 She said she was not persuaded she could grant the s 94 applicationbecause of Mr Judd's previous offending and she noted issues of road safety and publicsafety arising out of Mr Judd's drink driving.[11] The Judge referred to Mr Judd's supplementary affidavit setting out thefinancial position of his company. A letter from the company's accountant indicatedthe company had made $15,500 in the last six months. She recorded Mr Judd'sevidence that if he could not drive essentially, he could not operate his business asthere was insufficient income to fund a driver for him.2 Land Transport Act 1998, s 94(1)(b) and (c).3 Section 94(1)(b).4 Criminal Procedure Act, s 250.5 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].6 Police v Judd [2022] NZDC 26071 at [3].[12] While the Judge considered that she was not in a position to grant the s 94application, she did accept the police prosecutor's suggestion that the disqualificationbe backdated to allow Mr Judd to make an application for a limited driver's licenceimmediately. The Judge considered that to be a better course because there werefurther or certain restrictions that could be placed upon that licence.7[13] In the event that the Judge had decided to substitute a community basedsentence, she indicated that it would have been 100 hours of community work asMr Judd was not in a financial position to pay a fine. The Judge acknowledged thatMr Judd's convictions were quite old, but considered that there needed to be adeterrent element in relation to the sentencing.[14] The end result was disqualification for a period of one year and one day butstarting from 16 October 2022. This meant the 28-day period had expired andMr Judd was able to apply for his limited licence immediately.[15] Mr Mitchell informs me from the bar that the District Court Judge suspendedthe disqualification pending the determination of this appeal.Should the appeal be allowed?[16] The appeal is advanced on the same grounds argued before the District CourtJudge. That is, that disqualification would have a significant and prejudicial effect onMr Judd's company with flow-on effects for his employees.[17] Mr Judd has filed two affidavits in support of the appeal. The first is sworn byhim, and the second is sworn by the accountant to Mr Judd's business. To the extentthe affidavits contain updating information or confirm, in sworn form, matters whichwere previously before the Court, they are admissible. Other evidence contained inthe affidavits is essentially confirmatory of what was before the District Court andthere is no prejudice in admitting it. Overall it is in the interests of justice that theaffidavits be admitted and I order accordingly.7 At [4].[18] Mr Judd is owner and director of Form Concepts Ltd in Hillcrest. It is involvedin the development of residential buildings from the foundations up. The companyoperates within the greater Auckland metropolitan area. It has six employees who,Mr Judd states, rely upon the company for their sole income. The company also usessub-contractors who are dependent on the company for business.[19] Mr Judd explains that as the owner of the company it is his sole responsibilityto visit clients of the company on site, and to evaluate and cost future jobs. He alsovisits architects, engineers, other professionals and suppliers of hardware. His jobinvolves supervision of his employees in his role as project manager.[20] Mr Judd explains that disqualification from driving would be devastating.There is nobody who could assist in either driving him or undertaking the variousduties he had to undertake to keep the company viable. That position is substantiatedby the affidavit from his accountant setting out the financial position of the Company.The accountant confirms that the Company is not in a sufficiently financial position toabsorb the extra costs of paying someone as Mr Judd's driver during the period of hisdisqualification.[21] In his affidavit before this Court, Mr Judd says that it was clear the sentencingJudge did not believe the financial evidence and she also did not take into account theoffending occurred when Mr Judd was under significant stress. His mother had had astroke, and subsequently passed away. The Company was driven into the ground byCOVID-19 and Mr Judd had to sell the family home in order to pay Company andpersonal bills.[22] I have every sympathy for the difficult circumstances Mr Judd found himselfin at the time of the offending and I accept the evidence regarding the financial positionof the Company. The difficulties of operating in the construction industry at this timeare not underestimated.[23] However, those circumstances need to be balanced with the risks posed topublic safety of Mr Judd being able to continue to drive. While his previousconvictions are historic in nature, it is the third such offence that Mr Judd hascommitted. However, I do acknowledge that the penalty imposed does appear to havebeen effective in the sense that Mr Judd has had no convictions for a period ofapproximately 20 years. I consider that to weigh in favour of disqualification in thiscase.[24] I consider the Judge's approach in this case, to backdate the period ofdisqualification to allow Mr Judd to apply for a limited licence immediately, struckthe right balance between these competing interests. A limited licence would allowMr Judd to continue driving to meet his Company's needs. The effect of thebackdating meant that he did not have to wait the 28 days. However, the approachalso provided a form of protection for the public given a limited licence may be issuedon conditions. The balance struck by the Judge in this case was a fair and reasonableone which met the interests of justice.[25] Mr Judd explains in his affidavit that he did not apply for a limited licencebecause he understands there was a two or three-week delay in processing thoseapplications. Counsel for Mr Judd, Mr Mitchell, confirms this position insubmissions. But, in the scheme of things, a two or three-week delay is a relativelyshort period of time and significantly shorter than the six months it has taken to pursuethis appeal. I am not satisfied that a delay in processing limited licence applicationsjustifies allowing the appeal.[26] Accordingly, the appeal must be dismissed.Result[27] The appeal is dismissed.___________________Edwards J