POONA v POLICE [2018] NZHC 791

POONA v POLICE [2018] NZHC 791 [24 April 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2018-404-016CRI-2018-404-017[2018] NZHC 791BETWEEN JACOB TEREKIA POONAAppellantAND NEW ZEALAND POLICERespondentHearing: 17 April 2018Appearances: N D F Bond & G H Vear for AppellantL R Beashel for RespondentJudgment: 24 April 2018JUDGMENT OF PAUL DAVISON JThis judgment was delivered by me on 24 April 2018 at 3.30 pmpursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors:Crown Solicitor, AucklandIntroduction[1] Jacob Poona pleaded guilty to four charges of driving while disqualified.1 On19 January 2018, he was sentenced to 100 hours of community work and disqualifiedfrom driving for a period of eight months.2[2] Mr Poona now appeals his sentence on the grounds that the Judge erred inrefusing to exercise the discretion under s 94 of the Land Transport Act 1998 tosubstitute a community-based sentence in lieu of disqualification from driving.The offending[3] Mr Poona was initially disqualified from driving for a period of three monthsfrom 3 July 2017, after being convicted of driving with excess breath alcohol for aperson under the age of 20. He was subsequently caught driving while disqualified on3 August 2017, 10 August 2017, 24 August 2017 and 27 August 2017. On two of thoseoccasions he told police he was the sober driver for intoxicated friends, while onanother occasion he admitted he was disqualified and said that he was driving "to getaround".District Court decision[4] Judge Glubb reviewed the facts of the offending and noted that an aggravatingfeature was "the speed with which [Mr Poona] amassed the four offences, all withinthe space of a month".3 He noted that an application had been made under s 94 of theLand Transport Act and referred to the submission of Ms Vear for Mr Poona that s 94was "tailormade" for this situation, as Mr Poona appeared to be on a "wheel ofoffending". The police were neutral towards the s 94 application.1 Land Transport Act 1998, s 32(1)(a); for a first or second offence the maximum penalty is threemonths' imprisonment, or a fine not exceeding $4,500, and mandatory disqualification fromdriving for at least six months; for a third or subsequent offence the maximum penalty is two years'imprisonment, or a fine not exceeding $6,000, and mandatory disqualification from driving for atleast one year.2 Police v Poona [2018] NZDC 4536.3 At [5].[5] The Judge then noted that s 94 required him to look at the circumstances of thecase, Mr Poona's circumstances and the effectiveness of the disqualification. Heobserved:4[Disqualification] was not particularly effective for you but that is nothing todo with the disqualification period. It is all to do with your attitude, frankly.You seem to think that the disqualification did not apply to you when youchose to drive.[6] The Judge then considered the likely effect of a further disqualification, notingMs Vear's submission that there was every chance Mr Poona would reoffend. Hestated that Mr Poona had to understand that people who repeatedly breach orders ofthe Court end up facing terms of imprisonment. The Judge went on to say:5I give careful consideration to this application, noting the neutrality. However,I am simply not satisfied this is an appropriate case for the grant of a s 94application and it is the speed with which and the consistency with which youhave thumbed your nose at what is an important and serious order of thisCourt, I decline to grant the s 94 application.[7] The Judge imposed a total disqualification period of eight months, coupledwith a sentence of community work. The Judge adopted a starting point of 160 hoursand discounted it by 15 per cent to reflect Mr Poona's youth, with a further 25 per centdiscount for his guilty pleas. This brought him to an end sentence of 100 hours'community work as well as the eight-month disqualification from driving.Submissions on appealAppellant[8] Mr Poona now appeals on the grounds that:(a) the Judge failed to adequately take into account the relevant mandatoryconsiderations set out in s 94; and(b) he erred in principle by treating the rapidity of Mr Poona's re-offendingas an aggravating factor counting against the application.4 At [7].5 At [9].[9] Under the first ground, Mr Bond for Mr Poona refers to the four factors listedin s 94(1)(b) and submits that the Judge failed to consider the public interest. He alsosays that although the Judge referred to the facts of the offending, Mr Poona's personalcircumstances and the effectiveness of disqualification, he did not make anyconnection between these factors and the determination of the application.[10] Secondly, Mr Bond submits that the fact the offending occurred in quicksuccession does not weigh against the granting of the application. Instead, he saysthat Mr Poona is trapped in a wheel of offending and it is precisely this situation thats 94 was designed to capture.Respondent[11] Mr Beashel for the Crown acknowledges that there is no explicit reference tothe public interest in the Judge's decision. However, in oral submissions hemaintained that the Judge was not required to expressly refer to each of the s 94(1)(b)factors, provided that their substance was considered. He also submits that the Judgedid not err in principle by treating the speed and consistency of Mr Poona's offendingas a factor weighing against the granting of the s 94 application. In his submission,those matters could weigh for or against the discretion.[12] However, in case the Court finds an error in the Judge's decision, Mr Beasheladdresses the merits of the application. He essentially says that although Mr Poona isyoung and there may be a risk that he becomes caught in a cycle of offending, littlehas been offered in the way of evidence to suggest that his personal circumstances orhis rehabilitative prospects favour the exercise of the discretion under s 94. He citesDowns J's comments in Parata v Police to the effect that resorting to s 94 too readilycould undermine the efficacy of disqualification as a penalty more generally.6[13] Mr Beashel also cites the case of Keates v Police, where Lang J dismissed anappeal against a refusal to grant a s 94 application.7 Ms Keates pleaded guilty to onecharge of driving while disqualified. She subsequently became pregnant and the6 Parata v Police [2016] NZHC 3026 at [10].7 Keates v Police HC Auckland CRI-2010-404-269, 21 September 2010.recipient of a sickness benefit. Lang J nevertheless held that refusal of the applicationwas open to the Judge. Mr Beashel says that no such extenuating personalcircumstances are present here, and it is therefore an even clearer case for refusal ofthe s 94 application.Approach to appeal[14] The power to make an order under s 94 is the exercise of a statutory discretion.8The Court therefore has limited jurisdiction on appeal: it may only interfere if theappellant can demonstrate that the Judge in the Court below erred in principle inexercising his or her decision; failed to take into account a material consideration; tookinto account an irrelevant consideration; or was plainly wrong.9[15] The weight to be given to individual factors is a matter for the sentencingJudge. It is not for the appellate Court to say that the Judge placed undue weight onone factor, or should have placed greater weight on another.10Relevant law[16] Section 94 of the Land Transport Act 1998 provides:94 Substitution of community-based sentences(1) This section applies if—(a) the offender has previously been ordered on conviction for an offenceto be disqualified from holding or obtaining a driver licence; 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,—8 Keates v Police HC Auckland CRI-2010-404-269, 21 September 2010 at [6].9 Keates v Police HC Auckland CRI-2010-404-269, 21 September 2010 at [6]–[7]; see also s 250(2)of the Criminal Procedure Act 2011.10 Keates v Police HC Auckland CRI-2010-404-269, 21 September 2010 at [18].considers that it would be inappropriate to order that the offender bedisqualified from holding or obtaining a driver licence; and(c) the court considers that it would be appropriate to sentence the offenderto a community-based sentence in accordance with Part 2 of theSentencing Act 2002.(2) Despite any provision of this Act that requires a court (in the absence ofspecial reasons relating to the offence) to order a person convicted of anoffence to be disqualified from holding or obtaining a driver licence, thecourt may instead make an order referred to in subsection (3) if this sectionapplies.(3) If the court sentencing an offender determines under this section not tomake an order of disqualification,—(a) the court must impose a community-based sentence on the offender;and(b) the imposition of such a sentence does not limit or affect the power ofthe court to impose any other sentence for the offence that, inaccordance with the provisions of the Sentencing Act 2002, it mayimpose in addition to the community-based sentence; and(c) in determining the appropriate sentence to be imposed on the offenderin respect of the offence, the court must take into account the gravityof the offence and the fact that the offender would otherwise have beenliable to disqualification from holding or obtaining a driver licence.(3A) For the purposes of subsection (3)(a), the court may impose a sentenceof supervision or intensive supervision as a community-based sentenceif—(a) that sentence is appropriate; and(b) a suitable programme is available; and(c) the offender attends a suitable programme.(4) This section does not apply if—(a) section 63 or section 65 applies; or(b) the offender is prohibited from applying for a limited licence undersection 103(2)(a), (b), or (d).[17] Section 94 contains no clear statement of purpose, but the courts haverepeatedly described it as a remedial provision.11 It gives recidivist offenders whomay for a variety of reasons have failed to comply with the prohibition from driving11 Maeva v Police HC Auckland CRI-2010-404-402, 11 March 2011 at [30]; Paikea v Police [2017]NZHC 3032 at [12].while disqualified an opportunity to break the cycle of offending by substituting adifferent form of sentence.12[18] The predecessor to s 94 was s 30AC of the Transport Act 1962, which wasintroduced in the Transport Law Reform Bill 1988 (71-1). The explanatory note tothat Bill recorded the purpose of s 30AC as follows: section 30AC implements recommendation 22 of the Road SafetyCommittee to the effect that where the Act presently requires a mandatoryperiod of disqualification, and the convicted person has previously undergonea period of disqualification, it should be open to the Courts in any particularcase where the usefulness of a further period of disqualification is doubtful toimpose an alternative but more effective community-based sentence.(emphasis added)[19] Hardie Boys J described s 30AC as marking:13 a clear shift in the emphasis of penal policy for offences of this kind.Whereas earlier the emphasis was on insisting on compliance with Courtorders and punishing those who flouted them in part with longer and longerterms of disqualification, now there is a recognition that there are there arethose for whom the need to drive is almost addictive and that these people willkeep offending, no matter what punishment is imposed. The purpose of theamendment is to bring the pattern of offending to an end by removing one ofits causes, namely, the continued extension of disqualification orders.[20] As Mallon J recognised in Police v Body, the criteria in s 94 are broadly framedand it is therefore not unexpected that variations in approach as between Judges mayarise.14 There is indeed some divergence in approach evident in the case law. SomeJudges have taken a strict view of s 94, commenting that:15Section 94 should only justify a variation from the norm where the personalcircumstances of the offender, and in particular the rehabilitative prospects,justify affording the offender an opportunity to break the cycle ofcircumstances contributing to the recidivist offending.12 Wilson v Police [2014] NZHC 3028 at [10]; Maeva v Police HC Auckland CRI-2010-404-402, 11March 2011 at [30]; although note the comments in Beeston v Police [2012] NZHC 1064 at [11]–[15] recognising that an offender need not be on a cycle of offending for s 94 to apply.13 Mitchell v Police (1989) 5 CRNZ 190 (HC) at 193.14 Police v Body [2013] NZHC 1586 at [6].15 Wilson v Police [2014] NZHC 3028 at [12]; endorsed in Parata v Police [2016] NZHC 3026 at[9]–[10].[21] Those Judges have declined to employ s 94 without evidence of extraordinaryconsequences resulting from disqualification, or an express desire by the offender torehabilitate.16 Other Judges have not taken such a stern approach, granting a s 94application where they recognise that the offender is trapped in a cycle of offendingand that the purposes of sentencing are best achieved by imposing a differentsentence.17 I consider that the latter approach accords better with the remedial purposeof s 94 and the statement of intention recorded in the explanatory note above.[22] I acknowledge the concern that "too ready resort to s 94 could undermine theefficacy of disqualification as a penalty more generally".18 I also acknowledge thatthe substitution of a community-based sentence under s 94 may be viewed as accedingto the recidivist offender's preference as to the type of sentence that should beimposed, namely something other than disqualification. As Venning J has observed:19It would be unfair to compliant offenders if non-compliant offenders were tobe seen to receive some kind of advantage as a result of their conduct.[23] Certainly it is necessary to use caution in applying s 94 so that it does notbecome a means by which those with a wilful disregard for the law are able to avoida penalty of disqualification. Nevertheless the section needs to be employedrealistically in order to break a cycle of offending which appears likely to continue andwhich means that disqualification is ineffective as a penalty. The starting point is thatdisqualification is to be ordered.20 However, where an offender is repeatedly drivingin breach of an order of disqualification, the penalty of disqualification isdemonstrably ineffective in deterring the offender.21 Hence, as Mallon J concluded inPolice v Body:22Punishment for the disobedience in the form of a community-based sentenceis likely to be better, particularly where the offender is suitable for community16 See also Keates v Police HC Auckland CRI-2010-404-269, 21 September 2010; Hemana v Police[2014] NZHC 1133.17 See Police v Body [2013] NZHC 1586 at [49]–[58]; Witana v Police [2014] NZHC 1963 at [29]–[30].18 Parata v Police [2016] NZHC 3026 at [10].19 Hemana v Police [2014] NZHC 1133 at [24], citing Lang J's comments in Tailor v Police HCAuckland CRI-2009-404-322, 7 December 2009 at [25].20 Police v Body [2013] NZHC 1586 at [7].21 Police v Body [2013] NZHC 1586 at [12].22 Police v Body [2013] NZHC 1586 at [12].work or other community-based sentence and there are no other impedimentsto imposing such a sentence.[24] The imposition of a community-based sentence under s 94 should not beregarded as a lenient sentencing option.23 Rather, it is simply the court's choice of apenalty that more effectively meets the purposes of sentencing.Did the Judge err?[25] I am not satisfied that the Judge erred in failing to have regard to the publicinterest. It is not necessary for the Judge to explicitly refer to each of the factors ins 94(1)(b), provided that he or she has regard to them.24 Although Judge Glubb didnot expressly refer to the public interest in the list of factors which he considered, hementioned the need for respect for court orders,25 which is certainly one element ofthe public interest.26[26] However, I have nevertheless concluded that the Judge did err in principle inhis approach to s 94. He rightly emphasised the short period of time in which MrPoona had amassed four convictions for driving while disqualified, and also thelikelihood of Mr Poona continuing to offend in the same way in future. However, theJudge wrongly considered that these factors weighed in only one direction, namely infavour of continued disqualification. He suggested that the breaches were the resultof Mr Poona's attitude, and warned him that further breaches could ultimately resultin imprisonment.[27] In taking this view the Judge overlooked the remedial purpose and shift inpenal policy brought about by s 94, as outlined above. A strict insistence oncompliance with court orders, punishing those who flout them with longer and longerterms of disqualification, is no longer appropriate. I consider that the Judge's approachis not simply a matter of giving excessive weight to one factor, which would notusually warrant interference on appeal. Rather, I consider that it amounts to an errorof principle.23 Reddy v Police HC Auckland CRI-2010-404-217, 17 September 2010 at [36].24 Police v Body [2013] NZHC 1586 at [19].25 At [9].26 Tailor v Police HC Auckland CRI-2009-404-322, 7 December 2009 at [25].[28] For this reason it is necessary to exercise the s 94 discretion afresh.Exercising the discretion afreshCircumstances of the case and the offender[29] As noted above, Mr Poona's offences occurred in rapid succession: he wascaught driving while disqualified four times in the space of a month. He did notendeavour to deny that he was driving while disqualified on any of these occasions;indeed, when stopped on 10 August he informed police he was a disqualified driver. Iregard this openness as a mitigating factor of the offending. It is also relevant that hewas not driving with excess breath alcohol on any of these occasions; nor was themanner in which he was driving remarkable in any way.[30] Mr Poona did not attend the interview for his pre-sentence report. It istherefore difficult to assess the reasons for his offending or his attitude towards it.When he was apprehended, Mr Poona's explanations were that he was driving to "getaround" and that he was the sober driver for his friends. These explanations do notprovide any satisfactory excuse, although they do suggest that Mr Poona's driving isthe consequence of youthful immaturity or a lack of forethought, rather thancontumacious disregard for the courts' authority. He is only 18 years old. Like MrCapstick in Police v Body, it appears that he is someone who "just drives" withoutthinking.27Effectiveness of previous disqualification[31] At the hearing it was brought to my attention that since the District Courtsentencing, Mr Poona has been charged with driving while disqualified again. It issaid that he was caught driving on Scenic Drive in Swanson on 21 February 2018. MrPoona is presently awaiting disposition of that charge.[32] Mr Poona has now driven while disqualified four times since his initialdisqualification on 3 July 2017, and presently faces a further charge relating to a fifthoccasion. The previous period of disqualification has plainly been ineffective.27 See Police v Body [2013] NZHC 1586 at [58].Likely effect on the offender of further disqualification[33] Because Mr Poona did not attend the interview for the pre-sentence report, Ihave no information as to the impact of disqualification on Mr Poona. Nor did MrBond appear to have any instructions on this subject.[34] However, in light of Mr Poona's history of offending and in particular his veryrecent conviction for driving while disqualified even after being sentenced on thesefour charges, I consider that he is very likely to offend again in the same manner inthe future and has thus become caught in a cycle of offending with ever-increasingpenalties. It is in the interests of justice that such a situation be avoided if possible,and an alternative penalty imposed which is more likely to be effective.Public interest[35] In Tailor v Police, Lang J noted that the interests of the public can encompassa wide variety of matters.28 These include the public interest in ensuring that courtorders are complied with and an effective penalty is imposed; and the public interestin keeping offenders off the road where their driving presents a danger to the public.The latter concern does not arise in the present case, other than the driving with excessbreath alcohol charge which resulted in the initial disqualification. Mr Poona'ssubsequent driving, while in breach of the disqualification, was not of a kind thatendangered other road users. His driving while disqualified was discovered as a resultof being stopped by random police checks and not for any reason relating to themanner of his driving. In my view this is a significant consideration in the exercise ofthe s 94 discretion, and may be contrasted to those cases where the disqualified driverhas driven in a manner or in circumstances where the public were endangered by thedriving.2928 Tailor v Police HC Auckland CRI-2009-404-322, 7 December 2009 at [25].29 Compare Parata v Police [2016] NZHC 3026, where s 94 arose for consideration in relation to acharge of driving with excess breath alcohol, in circumstances where the appellant had nineprevious convictions for driving with excess breath alcohol.Conclusions[36] Drawing these factors together, I consider that this is a case where the s 94discretion should be exercised. Mr Poona is a young man whose repeat offendingappears to be the result of immaturity and a lack of consequential thinking. He islikely to drive while disqualified again in the future. Disqualification is demonstrablynot an effective penalty for him, and this leads me to conclude that it would beinappropriate to order a further period of disqualification. There are no public safetyconcerns that would warrant further disqualification.[37] I am satisfied that a community-based sentence would be appropriate in MrPoona's case and that such a sentence would better meet the purposes ofaccountability, denunciation and deterrence. Compliance with a community-basedsentence, such as community work, can be more easily monitored than compliancewith disqualification from driving. It is therefore likely to be a more effective sentencefor Mr Poona, which is in the public interest. Mallon J's observations in the case ofMr Capstick are relevant to the present case:30Mr Capstick's lack of thought and disobedience is more appropriatelydenounced and deterred by community work than by a sentence ofimprisonment and the imposition of further disqualification periods that willonly likely bring Mr Capstick back to the courts.What community-based sentence should be imposed?[38] Mr Poona was sentenced to 100 hours' community work on the presentcharges. I consider than an additional sentence of community work should be imposedin lieu of disqualification.[39] In Maeva v Police, Mr Maeva was convicted and sentenced on one charge ofdriving while disqualified, which was his third conviction for that offence. The Judgeimposed 80 hours' community work for the offence and a further 60 hours in place ofdisqualification under s 94, coming to a total of 140 hours of community work.30 Police v Body [2013] NZHC 1586 at [58]. See also Witana v Police [2014] NZHC 1963 at [29]–[30], where Duffy J reached a similar conclusion.[40] In Witana v Police, the offender was sentenced to 150 hours' community workon a third conviction for driving while disqualified.[41] The present case is more serious than both Maeva and Witana, given that MrPoona was sentenced for four charges of driving while disqualified. I consider that afurther 100 hours of community work in lieu of disqualification meets the purposes ofdenunciation and deterrence. Adding this to the 100 hours imposed by Judge Glubb,the total period of community work to be imposed is 200 hours.Result[42] Accordingly, I quash the order for disqualification, and increase the number ofhours of the sentence of community work imposed on Mr Poona from 100 hours to200 hours._____________Paul Davison J