FOWLDS-KOTUHI v NEW ZEALAND POLICE [2019] NZHC 985

FOWLDS-KOTUHI v NEW ZEALAND POLICE [2019] NZHC 985 [8 May 2019]IN THE HIGH COURT OF NEW ZEALANDINVERCARGILL REGISTRYI TE KŌTI MATUA O AOTEAROAWAIHŌPAI ROHECRI-2019-425-10[2019] NZHC 985BETWEEN JADEN MORRIS FOWLDS-KOTUHIAppellantAND NEW ZEALAND POLICERespondentHearing: 6 May 2019Appearances: P Noorland for AppellantS McKenzie for RespondentJudgment: 8 May 2019JUDGMENT OF MANDER J[1] The appellant, Jaden Fowlds-Kotuhi, was sentenced to 100 hours' communitywork on a charge of driving while disqualified, being his third or subsequent offence.He was disqualified for 13 months. He appeals the disqualification on the basis thathe was not provided the opportunity of applying under s 94 of the Land Transport Act1998 (the Act) to have a community-based sentence imposed in lieu of a further periodof disqualification.Factual background[2] On 14 April last year, Mr Fowlds-Kotuhi was suspended from driving due tothe accumulation of demerit points. A month later, on 14 May, in the early hours ofthe morning, after choosing to drive home from work, he was stopped by police.Mr Fowlds-Kotuhi acknowledged that he should not have been driving.[3] At the time he was stopped, the appellant was working on a dairy farmapproximately 20 km from his residence. The job did not come with onsiteaccommodation and he was required to commute. Initially, the appellant had biked towork if he could not make other arrangements. However, this took a significantamount of time and required him to negotiate rural highways during the hours ofdarkness. His normal working hours were between 4.30 am and 8.00-9.00 pm headinginto the winter period. In explanation for his breach, Mr Fowlds-Kotuhi stated that hewas not able to get a ride. He stated he had just finished a long shift working on thetractors on the farm and had been disking and preparing silage.[4] When Mr Fowlds-Kotuhi appeared before Judge Farnan in the InvercargillDistrict Court on 31 May, he entered a guilty plea and was sentenced the same day.He saw the duty lawyer but did not seek to engage his own lawyer or apply for legalaid. As a result of the disqualification, Mr Fowlds-Kotuhi was unable to continue inhis employment because he simply did not have the means of getting to and from hiswork on the dairy farm.[5] The appellant has since secured employment with a firm in Queenstown. Hisrole to date has been a casual one, which has involved him assisting in the firm's yard.That casual yard work has come to an end, but his employer has offered to engage himon a fulltime basis as a driver. This is a position Mr Fowlds-Kotuhi has previouslyheld with this particular company. Obviously, the appellant needs a driver's licenceto be able to take up that opportunity. The offer of fulltime employment caused himto seek legal advice regarding the possibility of obtaining a limited licence.Extension of time for filing appeal[6] The appeal was filed out of time. When Mr Fowlds-Kotuhi sought legal adviceregarding a limited licence, he was informed that he was not eligible to make such anapplication because the present offending occurred four months before the expirationof the five year period from his conviction for a specified offence.1 As a result,attention turned to why a s 94 application had not been made at the time of hissentencing in May 2018.1 Land Transport Act, s 103(2)(d).[7] The Crown does not oppose an extension of time. It is not prejudiced by thelateness of the appeal, and I accept it should be determined on its merits. Leave isgranted accordingly.Further evidence[8] In support of the sentence appeal, leave was sought to admit affidavit evidencefrom the appellant himself and from his employer, Mr Simon Spark. Mr Fowlds-Kotuhi's evidence relates to his situation at the time of his offending, what occurredwhen he attended Court and was sentenced, the loss of his employment and theopportunity he now has to take up a fulltime role with the firm in Queenstown.Mr Sparks' evidence provides details of the appellant's previous and currentemployment. He deposes to Mr Fowlds-Kotuhi's part-time role in the yard no longerbeing available as a result of the busy events season in Queenstown coming to an end,but that a fulltime vacancy as a truck driver could be filled by Mr Fowlds-Kotuhi butfor his disqualification which expires on 15 August 2019.[9] Mr Sparks' evidence largely takes the form of updating information, theadmission of which is not objectionable. Mr Fowlds-Kotuhi's evidence insofar as itrelates to his current position is of a similar nature. However, there are aspects of hisaffidavit which relate to the offending itself and his circumstances at that time and istherefore not fresh, it being evidence that was available at the time of his sentencing.That said, the Crown had no objection and I consider the interests of justice favour itsadmission in the circumstances of this case.The grounds of appeal[10] The appeal against the imposition of the disqualification is based on theproposition that Mr Fowlds-Kotuhi was not advised by the duty lawyer at the time ofhis sentencing to pursue a s 94 application, and that as a result his sentencingmiscarried. Ms Noorland, who appeared on behalf of Mr Fowlds-Kotuhi, submittedMr Fowlds-Kotuhi was an appropriate candidate to make a successful application andthat the disqualification should have been substituted with a community-basedsentence.The approach to a sentence appeal[11] In order to succeed on an appeal from a sentence imposed by the District Court,this Court must be satisfied that there is an error in the sentence imposed and that adifferent sentence should be imposed.2 In Tutakangahau v R, the Court of Appealconfirmed that the approach to be taken to sentence appeals under the CriminalProcedure Act 2011 is the same that prevailed under its predecessor, the SummaryProceedings Act 1957.3 Not every error in a sentence will provide the basis for asuccessful appeal. The appeal Court does not start afresh, nor simply substitute itsown view for that of the original sentencer. Rather, the appellant must show that therehas been a material error, in which case the Court may then form its own view as tothe appropriate sentence.4Has there been a material error?[12] Mr Fowlds-Kotuhi's evidence is that he was not provided with advice by theduty lawyer about the possibility of making a s 94 application. Ms McKenzie, whoappeared on behalf of the Crown, observed that while Mr Fowlds-Kotuhi has deposedto that fact no evidence has been obtained from the lawyer regarding what transpiredat sentencing and the content of his/her advice to the appellant at that time. That wasno doubt raised because Mr Fowlds-Kotuhi's appeal may be construed as essentiallyraising an issue of counsel incompetence. The Crown queried whether I would beprepared to determine the appeal in the absence of hearing from the duty lawyer. If Iwas, Ms McKenzie invited me to determine the appeal on the basis of the merits ofthe s 94 application without opposition.[13] I do not consider the issue that arises in the present case is strictly one ofcounsel incompetence. The role of the duty lawyer is a busy one, requiring thatpractitioner to attend on a series of defendants appearing in a criminal list. As wasacknowledged by Ms Noorland, any oversight in not traversing the possibility of a s94 application during the course of a brief consultation with the defendant is2 Criminal Procedure Act 2011, s 250(2).3 Summary Proceedings Act 1957, s 121 (repealed).4 Tutakangahau v R [2014] NZCA 279 at [26]-[36].unsurprising when regard is had to the workload and brief contact that duty lawyershave with defendants.[14] Mr Fowlds-Kotuhi's evidence was that during his meeting with the dutylawyer, he accepted he had driven while suspended and agreed that he was guilty. Theappellant informed the duty lawyer that at the time he was working as a dairy farmerand that his suspension had already been causing him difficulties. The duty lawyeradvised him he would be disqualified for at least one year and that a community-basedsentence was likely. Mr Fowlds-Kotuhi accepted that he did not wish to instruct alawyer or make a legal aid application. He understood the duty lawyer had outlinedall of the options available to him and he did not think he required any furtherassistance. No application was made to Judge Farnan pursuant to s 94 of the Act. Itfollows that no reference is made to such a possibility in the sentencing Judge's noteson sentencing.[15] The authorities that deal with questions of counsel competence are, almostexclusively, associated with appeals against conviction. The leading authority is thatof the Supreme Court, Sungsuwan v R.5 Ultimately, the appropriate enquiry will notturn on the performance of counsel but whether the verdict is unsafe because of somedeficiency, however caused. The essence of the Supreme Court's approach to suchissues was summarised in the following way:[70] ...while the ultimate question is whether justice has miscarried,consideration of whether there was in fact an error or irregularity on the partof counsel, and whether there is a real risk it affected the outcome, generallywill be an appropriate approach. If the matter could not have affected theoutcome any further scrutiny of counsel's conduct will be unnecessary. Butwhatever approach is taken, it must remain open for an appellate court toensure justice where there is real concern for the safety of a verdict as a resultof the conduct of counsel even though, in the circumstances at the time, thatconduct may have met the objectively reasonable standard of competence.[16] In Quinlivan v Police, Moore J accepted that the comments in Sungsuwan arebroadly applicable where there is a challenge to a sentence on the grounds that theactions or omissions of counsel created a real risk of affecting the outcome onsentence.6 It is tolerably clear from the way Mr Fowlds-Kotuhi's sentencing5 Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730.6 Quinlivan v Police [2014] NZHC 3163 at [34].proceeded that the possibility of making an application under s 94 of the Act was notraised with the sentencing Court despite the opportunity it provides to an offender tobreak the cycle of recidivism. The appellant himself was not aware of that possiblesentencing option.[17] Whether the duty lawyer's actions were reasonable in the circumstances of hisbrief engagement with Mr Fowlds-Kotuhi in not canvassing with him the possibilityof a s 94 application is not the critical question. Rather, the question devolves towhether that omission raises a real concern regarding the sentencing process and inparticular the appropriateness of the disqualification in the absence of the sentencingCourt being afforded the opportunity to consider whether the appellant was a suitablecandidate to have the disqualification period substituted with a community-basedsentence. The answer to that question turns on the merits of such an application.Land Transport Act 1998, s 94[18] Section 94 of the Act permits the Court, in circumstances where it considers itappropriate, to impose a community-based sentence in preference to ordering a furtherperiod of disqualification. In Maeva v Police, the rationale for providing a sentencingCourt with that option was explained in the following terms:7Section 30AC of the Transport Act 1962, from which s 94 derives, was alwaysunderstood to be "remedial". It was to abstract recidivist disqualified driversfrom an unending "wheel of offending", where any further disqualificationwas likely only to engender further offending. It also came to be invokedwhen the offender could not obtain a limited licence.(Footnotes omitted)[19] A number of factors are required to be established before an application cansucceed. The offender must have previously been subject to a disqualification and theCourt must decide that disqualification is inappropriate after having regard to thefollowing factors:87 Maeva v Police HC Auckland CRI-2010-404-402, 11 March 2011 at [30].8 Land Transport Act 1998, s 94(1)(b).(a) the circumstances of the offender;(b) the effectiveness of a previous order of disqualification;(c) the likely effect on the offender of a further order of disqualification;and(d) the interests of the public.[20] The criteria set out in s 94 enables the sentencing Judge to have regard to awide range of relevant considerations to assess whether it is appropriate to impose acommunity-based sentence in substitution of a further order of disqualification.9The appellant's history of disqualification[21] Mr Fowlds-Kotuhi has a regrettably lengthy record of disqualifications andsuspensions of his licence. He received his first three month period of suspension dueto excess demerit points in November 2004. A year later, in December 2005, he wasfurther suspended and again in May 2007. Another three month suspension wasincurred in March 2012. More recently, as a result of excess demerit points, hereceived a three month suspension both in March 2017 and April 2018.[22] Set against that background are some six convictions which have resulted inperiods of disqualification. That offending started in his youth when, in May 2003,Mr Fowlds-Kotuhi was convicted of excess breath alcohol and made the subject of afour month disqualification order. He did not comply with the disqualification andwas convicted in July of that year of driving while disqualified, in respect of which afurther six months' disqualification was imposed, coupled with 60 hours' communitywork. In January 2005, he was convicted of driving while suspended and a six monthdisqualification imposed. There then followed a lengthy gap before Mr Fowlds-Kotuhi was convicted in June 2013 of dangerous driving, for which he wasdisqualified for six months and ordered to undertake 40 hours' community work. It isthis specified offence which, by only a matter of four months, prevented him from9 See Police v Body [2013] NZHC 1586 at [6]-[7].applying for a limited licence, the conviction having been entered within the five yearperiod from his last conviction in May 2018 for driving while suspended (third orsubsequent offence), for which he received the disqualification the subject of thisappeal. Mr Fowlds-Kotuhi was also convicted in December of 2013 of driving whiledisqualified (being a third or subsequent offence) and was disqualified for a furtheryear. Three months' community detention and 100 hours' community work were alsoimposed.[23] The demerit points that have led to the suspension of his licence result from anumber of different infringements. These include driving unlicensed motor vehiclesbut also include infringements for speeding. As previously noted, court-imposeddisqualifications include one conviction for dangerous driving and driving with excessbreath alcohol when he was a youth. Overall, despite those convictions and thedemerit points incurred for speeding, it is not apparent that disqualification is requiredin order to provide protection to the public. In Mr Fowlds-Kotuhi's circumstances thesuspensions appear to have served a largely punitive purpose.[24] It is difficult to judge the effectiveness or otherwise of previous orders ofdisqualification that have been imposed on the appellant. It appears he has sought tocomply with previous disqualifications. On the other hand, the accumulation of fiveconvictions for driving while suspended or disqualified between 2003 and 2018 wouldindicate a poor record of compliance, although there is a notable eight year gapbetween 2005 and 2013.[25] The current information shows Mr Fowlds-Kotuhi has, at least recently, soughtto comply with his obligations. After his most recent disqualification he could not getto his work on the dairy farm on a regular basis and it cost him his job. His inabilityto drive rendered him ineligible for positions requiring a driver's licence. As a result,he has not been able to sustain an income, and Mr Fowlds-Kotuhi has deposed thatthis has resulted in him getting into financial difficulties and debt. His compliancewith the disqualification order over what is now some nine months has been atconsiderable cost to the appellant. That cost is likely to be aggravated further ifMr Fowlds-Kotuhi is not provided with the opportunity of taking up the fulltimeposition which has been offered to him by his present employer.[26] Mr Spark has provided detailed information about Mr Fowlds-Kotuhi'sprevious employment with his firm and the availability of the present position. DuringMr Fowlds-Kotuhi's employment with Mr Spark he has incurred at least threesuspensions due to demerits and at least two disqualifications. Mr Spark advised inhis affidavit that he has spoken to the appellant about improving his decision-makingwhen driving. He was able to keep Mr Fowlds-Kotuhi on during his 2013disqualification period because there was work in the yard for him to complete, andthe firm was not short of drivers. He was also kept on in 2017, when Mr Fowlds-Kotuhi's licence was suspended again due to demerit points, but not thereafter.[27] In October 2018, Mr Spark made contact with Mr Fowlds-Kotuhi who advisedhim that he was disqualified, unemployed and not earning a steady income. BecauseMr Spark needed someone capable of running the yard and provide assistance duringthe events season in Queenstown, Mr Fowlds-Kotuhi was taken on. The role was acasual one and the hourly rate less than that of a fulltime driver. The events seasonhas now come to an end and Mr Fowlds-Kotuhi's position has become redundant.[28] Mr Spark vouches for the appellant's value as a worker, particularly in respectof his firm's business, about which Mr Fowlds-Kotuhi is highly knowledgeable.Despite having been a valued member of the workforce over a number of years and anemployee who has discharged various roles and responsibilities, if Mr Fowlds-Kotuhiis unable to drive he is of no real further use to the company. Mr Spark considersMr Fowlds-Kotuhi has made progress as a person and employee, and he attests to thedetrimental effects on him when he is unemployed. Mr Spark has providedMr Fowlds-Kotuhi with some support, including accommodation as part of his job, inan attempt to provide "stability and focus to keep him out of the legal system".[29] Mr Spark has expressed concern about the appellant. He is unable to keep himon as a casual employee but could retain him as a fulltime employee as a driver.However, if he remains disqualified until August 2019, Mr Sparks would have to letMr Fowlds-Kotuhi go, and he is worried the appellant will fall back into a cycle ofoffending. Mr Spark deposes that it is not financially viable to continue to employMr Fowlds-Kotuhi in the absence of non-driving work being available, and his needto employ a driver as soon as possible to relieve current drivers' workloads.[30] As a truck driver, Mr Fowlds-Kotuhi holds a number of endorsements to hislicence which enable him to drive various trucks and trailers. He has commenced adefensive driving course which is funded by his current employer. Mr Sparks' firmhas put in place steps to monitor and improve their employees' driving. Those stepsinclude "Eroad capability" in their trucks to alert drivers and its office manager ofspeed limit breaches. It has installed speed limiters in its trucks which limit their speedto 90 kilometres per hour and signage for public feedback on driver behaviour. It issubmitted that any instances of speeding will be recorded and reported back to thecompany.Conclusion regarding s 94 application[31] Mr Fowlds-Kotuhi is 34 years of age and presently has the opportunity throughprospective employment to break the cycle which has seen him regularly appear beforethe Court for disqualification and suspension breaches. I accept that the public interestfavours providing him with the opportunity to remain employed, be able to financiallysupport himself, and to lawfully drive. Mr Fowlds-Kotuhi has completed nine monthsof his present disqualification which will end in August. His opportunity for fulltimeemployment is in jeopardy if he cannot immediately take up a driving role with thefirm that has sought to assist him with his difficulties. It is apparent from Mr Sparks'affidavit that Mr Fowlds-Kotuhi has a part to play within the business and isappropriately qualified to carry out a constructive role for his employer as a driver. Iaccept that these employment and personal welfare considerations strongly favour a s94 application being granted.[32] Ms Noorland drew my attention to numerous cases where such considerations,in particular the loss of employment, have influenced the Court to exercise itsdiscretion under s 94 of the Act.10 I accept Ms Noorland's submission that it isapparent that Mr Fowlds-Kotuhi has reached a point in his life where he appears to10 Yu v Police HC Auckland CRI-2006-404-273, 10 November 2006; Grimwood v Ministry ofTransport HC Christchurch AP184/91, 16 August 1991; Chapman v Police HC ChristchurchAP55/94, 10 March 1994; Peake v Ministry of Transport HC Dunedin AP86/91, 17 September1991; Peaufa v Ministry of Transport and Police HC Christchurch AP19/92, 13 February 1992;Crosby v Ministry of Transport HC Hamilton AP123/92, 13 October 1992.value the importance of having and, importantly, retaining his driver's licence. It iscentral to him being able to maintain a livelihood.[33] The current disqualification has resulted from driving while suspended whichwas not itself aggravated by any driver fault, and while there is some background tothe appellant's past offending which raise safety concerns, his last conviction of thattype is now of some five years vintage. In terms of infringement points for excessivespeed, I am satisfied that the steps taken by his employer should mitigate that risk. Inany event, Mr Fowlds-Kotuhi must by now be well aware that speeding infringementsor driving offences that carry the risk of disqualification or suspension will result insevere consequences for him. He could expect no further latitude from the Court. Anyfurther revocation of his licence will likely result in the termination of his employmentwith Mr Spark's company.Conclusion[34] An issue that I raised with Ms Noorland was a concern that the circumstancesrelied upon for the purposes of the appeal and in support of a successful s 94application arose after Mr Fowlds-Kotuhi was sentenced and the disqualificationimposed in May 2018. The merits of his application before me were based on matterswhich could not have been relied upon before the sentencing Court had a s 94application been made, as it is argued it should have been, at the time the appellantwas sentenced before Judge Farnan.[35] However, I am content to proceed on the basis that the identified error is thefailure to raise the issue of s 94 before the sentencing Court and allow the Judge theopportunity to consider that possibility on the basis of the circumstances as they thenstood. While less compelling, the fact remained that Mr Fowlds-Kotuhi hademployment on a dairy farm which required him to travel a considerable distance andthat, because of the rural location, public transport was unavailable to him. Thepotential effects of disqualification are borne out by what actually happened.Mr Fowlds-Kotuhi lost his employment and that resulted in ongoing financialdifficulties.[36] I am satisfied therefore that there was at the time of sentencing a proper basis,at least, for the application to be made and possibly for the disqualification to besubstituted with a community-based sentence. It is difficult to assess what theoutcome may have been, but such an application was not by any means unrealistichaving regard to Mr Fowlds-Kotuhi's history and his personal circumstances. Anerror having been identified, it has fallen to me, as the appeal Judge, to consider themerits of the s 94 application on the basis of the current information to hand.[37] For the reasons canvassed, I consider that, on balance, the s 94 applicationshould be granted because both Mr Fowlds-Kotuhi's rehabilitation and the widerpublic interest favour him being afforded the opportunity to maintain his employment,to support himself, and avoid the cycle of disqualification and breach which mayfollow should he be unable to take up the opportunity which has been provided to himby his current employer.[38] Both his conviction and the sentence of community work imposed for drivingwhile suspended will remain in place. The appellant has already served some ninemonths of his disqualification without breach. Taking into account the time that haselapsed since the filing of Ms Noorland's submissions, I consider an appropriateamount of community work to be imposed in substitution of the balance of thedisqualification period to be one of 30 hours, and that will be the substituted sentence.Result[39] The order disqualifying Mr Fowlds-Kotuhi for a period of 13 months isquashed. Pursuant to s 94 of the Act, I substitute in its place a sentence of 30 hours'community work which is to be served in addition to the sentence of 100 hours'community work imposed at the time of the appellant's conviction in March last yearfor driving while suspended (being a third or subsequent offence).Solicitors:Todd & Walker Law, QueenstownPreston Russell Law, Invercargill