HAIG v NEW ZEALAND POLICE [2017] NZHC 2751

HAIG v NEW ZEALAND POLICE [2017] NZHC 2751 [9 November 2017]IN THE HIGH COURT OF NEW ZEALANDGISBORNE REGISTRYI TE KŌTI MATUA O AOTEAROATŪRANGANUI-A-KIWA ROHECRI-2017-416-20[2017] NZHC 2751BETWEEN KANI DEAN HAIGAppellantAND NEW ZEALAND POLICERespondentHearing: 1 November 2017Appearances: N Wright and B Shackell for the AppellantC C Gullidge for the RespondentJudgment: 9 November 2017JUDGMENT OF CULL J[1] Mr Haig was driving on 27 January 2017 and was stopped by chance for a routine traffic stop. While at the stop, Mr Haig admitted being disqualified from driving and said he was driving a friend home. Mr Haig pleaded guilty to one charge of driving while disqualified.1 This was Mr Haig's eighth conviction for offendingof this type.[2] On 23 August 2017, Judge Cathcart sentenced Mr Haig to six months'imprisonment and disqualified him from holding or obtaining a driver's licence forone year and one day.2 In doing so, the Judge dismissed an application under s 94 of the Land Transport Act 1998 to impose a community-based sentence in substitution of the licence disqualification.1 Land Transport Act 1998, ss 32(1)(a) and 32(4). For a third or subsequent offence, themaximum penalty is two years' imprisonment, or a fine not exceeding $6,000, anddisqualification from holding or obtaining a driver licence for one year or more.2 New Zealand Police v Haig [2017] NZDC 18914.[3] Mr Haig appeals his sentence on the basis that the sentence imposed was manifestly excessive. Specifically, Mr Haig submits the Judge was wrong to:(a) conclude previous sentences for similar offending had no effect on him;(b) consider imprisonment was the appropriate sentence; and(c) overlook the merits of the s 94 application.[4] The Crown opposes the appeal and argues the end sentence was appropriategiven the offending and Mr Haig's convictions for similar offending. The Crown submits the Judge did not err in concluding that Mr Haig's previous sentences did not have an effect on him and the Judge was correct to dismiss the s 94 application.District Court decision[5] At sentencing, Judge Cathcart observed Mr Haig had very recently been convicted of three occasions of similar offending in 2015, where he received asentence of four months' home detention. The Judge emphasised that this wasserious offending, as this was Mr Haig's eighth offence of this kind.[6] The Judge adopted a starting point of 10 months' imprisonment.[7] The Judge considered the positive features of Mr Haig's personalcircumstances, which included that Mr Haig now has a valid driver's licence; he has regularly attended the Tairawhiti Men's Centre since 2015; he is the Chairperson of Narcotics Anonymous and a member of Alcoholic Anonymous; as well as recently commencing a four-year degree in social work.[8] The Judge also considered the recommendations of the PAC report. The PAC report recommended a sentence of imprisonment and assessed Mr Haig's risk as highbecause of his entrenched pattern of offending. The report also notes Mr Haig has"climbed the hierarchy of sentences", receiving community work, communitydetention and home detention in response to the same type of offending. The Judgecommented "Those sentences have had no effect on you" in explaining why asentence of imprisonment was required for the current offending.3[9] The Judge imposed an end sentence of six months' imprisonment as meetingthe principles and requirements under the Sentencing Act 2002. This six-month termalso took into account a discount of two months' for Mr Haig's positive personalcircumstances and a discount for his guilty plea (amounting to two months or 20 per cent). The Judge also dismissed Mr Haig's s 94 application and disqualifiedMr Haig from holding or obtaining a driver's licence for one year and one day.Approach to appeal[10] This appeal is brought under s 250 of the Criminal Procedure Act 2011. An appeal against sentence is an appeal against a discretion. An appeal against sentence must be allowed if the Court is satisfied that, for any reason, there is an error in the sentence imposed and a different sentence should be imposed.4 The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.5Mr Haig's position[11] Mr Haig appeals his sentence on the basis that the sentence imposed was manifestly excessive. Mr Haig submits a combined sentence of home detention and community work would have been appropriate in the circumstances. Ms Wright for Mr Haig submits further that the reason the appeal is pursued, is to ensure his licence can be issued, without the one year one day mandatory disqualification.6[12] Because Mr Haig's appeal was filed one day out of time, Ms Wright seeks an extension of time from the Court and submits the extension required is exceptionally brief and the interests of justice favour the extension being granted. The delay in filing was due to a mathematical error by counsel and the delay in preparing the3 Haig, above n 2, at [7].4 As confirmed in Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.5 Ripia v R [2011] NZCA 101 at [15].6 Land Transport Act 1998, s 32(4)(b).notice of appeal occurred because Mr Haig was moved between Hawke's BayRegional Prison and Rimutaka Prison when the notice was being prepared.[13] In terms of the substance of the appeal, Ms Wright submits the Judge was wrong to find that previous sentences for similar convictions had no effect on Mr Haig. Mr Haig had previously received sentences of community work, supervision, community detention and home detention for convictions of driving while disqualified, which he served without breach. Mr Marshall, Coordinator of Tairawhiti Men's Centre, has provided additional information about the alcohol anddrug treatment programme, which Mr Haig completed at the time he was last sentenced for a similar conviction.[14] Since this last sentence, Mr Haig has turned his life around. Mr Haig alsoobtained a driver's licence again. Counsel highlights this is an extremely significantstep in light of his convictions and it cannot be correct that his previous sentences have had no effect on him.[15] Ms Wright submits the Judge was wrong to consider that the appropriate sentence in this case was imprisonment. Counsel relies on the decision of Lang J inWaite v Police for support that there is no principle in sentencing that requires the next most serious sentence in the hierarchy of sentences to be imposed.7 Although sentences of imprisonment are not uncommon where there has been repeat offending of driving while disqualified, the Court needs confidence that no other less restrictive sentence could achieve the objectives of sentencing.8[16] Even if the Judge was correct that a more serious sentence needed to be imposed in the present case, the Judge overlooked the option of combining a sentence of home detention coupled with community work as an appropriate sentence. Therefore, the least restrictive sentence appropriate in the circumstanceshas not been imposed. Further, it is not in the community's best interests to allow arecidivist driving offender time to secure his driver's licence only to take it off himand return him to the community as an unlicensed driver.97 Waite v Police [2015] NZHC 585.8 Lord v Police [2015] NZHC 1756 at [22].9 Counsel notes that on 22 June 2017, the Court adjourned Mr Haig's sentencing to specifically[17] Finally, Ms Wright submits the Judge failed to consider the merits of the s 94 application under the Land Transport Act. Counsel accepts that the s 94 application should only be considered by the Court if it accepts that imprisonment was the incorrect sentence, as a combined sentence of imprisonment and community work are not available under the Sentencing Act. Ms Wright submits the Court should consider the following factors in relation to the s 94 application:(a) this is Mr Haig's eighth conviction for driving while disqualified butthere are no other aggravating features;(b) the effect of previous orders for disqualification has been limited as Mr Haig has seven previous convictions dating back to 2001;(c) the effect of further licence disqualification will be significant as Mr Haig will return to the community without a licence despite taking extensive steps to re-secure his licence; and(d) the interests of the public favour Mr Haig returning to the community as a licensed driver.[18] At the time of this appeal hearing, Mr Haig has approximately three weeks of his sentence of imprisonment left to serve. In the circumstances, counsel submits that the sentence of imprisonment should be quashed and substituted with a term of community work, instead of an order of disqualification. In that way, Mr Haig canhave a driver's licence legitimately, without a recurrence of his driving while disqualified.Crown's position[19] The Crown opposes the appeal and argues the end sentence was appropriategiven the offending and Mr Haig's convictions for similar offending.allow him to obtain a driver's licence and make an application under s 94 of the Land Transport Act.[20] The Crown submits the Judge did not err in concluding that Mr Haig'sprevious sentences did not have an effect on him. As commendable as Mr Haig'spositive life changes are, the Crown submits that it is undeniable Mr Haig continues to reoffend. The Judge was correct to note that despite climbing the hierarchy of sentences, Mr Haig was not deterred from reoffending. The Crown submitsdeterrence must be the Court's primary focus in the context of recidivist offending.[21] The Crown argues that a short sentence of imprisonment was appropriate in the circumstances and likely to be the most effective solution. It has denounced Mr Haig's conduct and will hopefully act as a deterrent to ensure he does not reoffend. The Crown distinguishes Mr Haig's circumstances from the case of Lord.10[22] The Crown further submits the Judge was correct to dismiss the application under s 94 of the Land Transport Act. Section 19 of the Sentencing Act prohibits imposing a combination of imprisonment and community based sentences. Having found that imprisonment was the appropriate sentence, the Judge was correct to dismiss the s 94 application.[23] The Crown argues that the end sentence of six months' imprisonment wasappropriate in the circumstances and the appeal should be dismissed. Had the Judge imposed home detention, the Crown contends, the result would have been almostidentical to Mr Haig's previous 2015 sentence of four months' home detention fordriving while disqualified, which would have been manifestly inadequate.Relevant lawLeave to extend time to appeal[24] Section 244 of the Criminal Procedure Act 2011 provides for the right of a person convicted of an offence to appeal against the sentence imposed. A notice of appeal must be filed within 20 working days after the date of the sentence appealed against.11 Under s 248(4) of the Criminal Procedure Act, however, this Court may, at any time, extend the time allowed for filing a notice of appeal against sentence.10 Lord, above n 8.11 Criminal Procedure Act 2011, s 248(2).Starting point[25] Previous sentencing authorities are of limited assistance and each case for this type of offending turns on the particular circumstances of the offence and the offender.12 However, the following are relevant authorities for charges of driving while disqualified as a third or subsequent offence.[26] In Lawrence v Police, Allan J upheld a sentence of six months' imprisonmenton appeal on a charge of driving while Mr Lawrence's licence was suspended (fifthoffence).13 A concurrent sentence of two months' imprisonment was also imposedfor a second identical charge arising from an earlier incident. Mr Lawrence had been convicted three times previously for driving whilst disqualified or suspended. The fact that Mr Lawrence committed a fifth offence while awaiting sentence for a fourth offence was what resulted in the imposition of imprisonment. Allan J noted that for sentencing purposes there is no need to distinguish between an offender who has driven whilst suspended, and one who has driven whilst disqualified.14[27] In Iwikau v Police, Williams J upheld a sentence of nine months'imprisonment for one charge of driving while disqualified (his seventh offence) and one charge of failing to remain stopped.15 The Judge noted that sentences of imprisonment were certainly available for this type of offending where there had been more than six offences of the same kind:16Authorities suggest a sentence of between six and 10 months was open to the Judge for a seventh offence. The authorities establish a trend of substantial increases for subsequent offending between the fifth and tenth offences. For instance, a fifth conviction warranted a starting point of two months,17 while an eleventh conviction was held to warrant a starting point at or around the maximum of two years.1812 Lord, above n 8, at [13].13 Lawrence v Police [2013] NZHC 197.14 At [16]–[17] and [21].15 Iwikau v Police [2013] NZHC 2515.16 At [13].17 Tiopira v Police HC Hamilton CRI-2011-419-103, 6 March 2012 at [4].18 Drinkwater v Police [2013] NZHC 1036 at [20].[28] As Mr Iwikau had been convicted of driving while disqualified every year orso for the last four years, he had demonstrated a pattern of reoffending "that runs likeclockwork."19[29] In Peterson v Police, Duffy J adopted a starting point of 10 months'imprisonment for a sixth offence of driving while disqualified.20 The Judge noted there were no aggravating features particular to the offending as Mr Peterson was not driving at excessive speed, recklessly or with an excess blood alcohol limit. The Judge noted that where the offence of this kind is a third or subsequent, a starting point of imprisonment becomes more likely.21 Mr Peterson had an extensive criminal history with 76 previous convictions and the Judge gave an uplift of seven months to reflect this. After giving a 25 per cent discount for a guilty plea, the Judgeimposed a final sentence of 13 months' imprisonment.Application under s 94 Land Transport Act[30] In relation to Mr Haig's application under s 94 of the Land Transport Act, thatsection provides:94 Substitution of community-based sentences(1) This section applies if—(a) the offender has previously been ordered on conviction for an offence to 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 of disqualification made 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,—19 Iwikau, above n 15, at [14].20 Peterson v Police HC Hamilton CRI-2009-419-11, 20 February 2009 at [9].21 At [8].considers that it would be inappropriate to order that the offender be disqualified from holding or obtaining a driver licence; and(c) the court considers that it would be appropriate to sentence the offender to a community-based sentence in accordance with Part 2 of the Sentencing Act 2002.(2) Despite any provision of this Act that requires a court (in the absence of special reasons relating to the offence) to order a person convicted of an offence to be disqualified from holding or obtaining a driver licence, 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 not to make 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 of the court to impose any other sentence for the offence that, in accordance with the provisions of the Sentencing Act 2002, it may impose in addition to the community-based sentence; and(c) in determining the appropriate sentence to be imposed on the offender in respect of the offence, the court must take into account the gravity of the offence and the fact that the offender would otherwise have been liable to disqualification from holding or obtaining a driver licence.(3A) For the purposes of subsection (3)(a), the court may impose a sentence of supervision or intensive supervision as a community- based sentence if—(a) that sentence is appropriate; and(b) a suitable programme is available; and(c) the offender attends a suitable programme.[31] Section 19 of the Sentencing Act specifies that a sentence of community work, community detention or intensive supervision may not be combined with a sentence of imprisonment. This has the effect that if a sentence of imprisonment is imposed, an application under s 94 of the Land Transport Act cannot be successful, i.e. a substitution of a community-based sentence for a disqualification sentence cannot be made.Discussion[32] As the appeal was filed only one day out of time, I extended the time allowed for filing Mr Haig's notice of appeal in this case.[33] The real focus of this appeal hearing was the Judge's dismissal of Mr Haig'ss 94 application, when he held a valid driver's licence at the time of sentencing.Ms Wright explained that the purpose in bringing this appeal was to enable Mr Haigto obtain a driver's licence, without waiting for the statutory one year one day disqualification. Ms Wright again reinforced that it is in the community's best interests to return a recividist driving offender to the community as a licensed driver, rather than taking away his licence and returning him to the community as an unlicensed driver.[34] Ms Wright submits that the Judge did not reflect Mr Haig's change inpersonal circumstances, in that he had completed a residential drug and alcohol programme and nor did the Judge acknowledge the option of home detention, as suggested in the PAC report.[35] Although Mr Haig has made several commendable life changes, his re- offending of this nature has not changed and has in fact continued since 2015, when he changed his lifestyle and sought help for his drug and alcohol problems. It was noted in the PAC report that Mr Haig had been driving while disqualified on several occasions before he was charged for the present offending. The report writer notes his offending demonstrates a sense of entitlement, where his own immediate needs are placed before those of the wider community and opined that if Mr Haig remains in the community without a licence, he is at high risk of continuing to offend.[36] The Judge was correct in observing that previous sentences had not had the desired deterrent effect on Mr Haig. Although a sentence of imprisonment should only be imposed where the Court has confidence that in the circumstances, another less restrictive sentence could not achieve the purposes of the sentencing exercise,the Judge's comment that a sentence of imprisonment was inevitable in this case,was not misplaced.22 The authorities reinforce that a sentence of imprisonment for such repeat offending over a short period of time (six convictions within five years) is an appropriate sentence in these circumstances and within the available range. It is also relevant to this assessment that the PAC report considered Mr Haig as highrisk because of the "entrenched nature of his current offending" and recommended asentence of imprisonment. It is relevant Mr Haig continued to reoffend even after he made a number of the positive life changes referred to by counsel.[37] I accept the Crown's submissions that the present case can be distinguishedfrom Lang J's judgment in Lord.23 There, the Judge reduced a sentence of sixmonths' imprisonment on appeal to a sentence of 230 hours community work.Mr Lord, however, only had two previous convictions for driving while suspended or disqualified (one year and 11 years earlier respectively); the Judge specifically noted he was not a serial offender.24 He was also assessed as at low risk of reoffending.This contrasts with Mr Haig's numerous convictions (six of which have occurred inthe past five years) and his assessment as high risk of reoffending in the PAC report.[38] The sentence imposed, despite Mr Haig's personal circumstances, was notmanifestly excessive in this instance. The authorities discussed above indicate that a short sentence of imprisonment is appropriate for an eighth offence of this type.[39] The Judge specifically considered Mr Haig's affidavit in support of his s 94 application for a substitution of a community-based sentence in lieu of an imprisonment sentence and no disqualification order. He recorded that Mr Haig hada valid driver's licence and that he regularly attended the Tairawhiti Mens Centre,having done so since 2015. He acknowledged that Mr Haig was the Chairperson of Narcotics Anonymous and a member of Alcohol Anonymous and had commenced a four year degree in social work.[40] However, the Judge evaluated Mr Haig's risk of re-offending and his non- compliance with court orders. This last offence was the eighth driving while disqualified conviction and all of the community-based sentences had not had any22 Sentencing Act 2002, s 16.23 Lord, above n 8.24 At [24].effect on Mr Haig, in respect of his attitude towards complying with court orders. Having paid specific regard to s 16 of the Sentencing Act, the Judge sentenced Mr Haig to a term of imprisonment of six months, after a discount of two months for his positive personal circumstances and a discount for his guilty plea. Specifically, the Judge disqualified Mr Haig from holding or obtaining a driver's licence for oneyear and one day, commencing on the date of sentencing, 23 August 2017, fully cognisant of his personal circumstances.[41] I can find no error in the Judge's approach. The Court must mark society'sdenunciation of conduct, which deliberately flouts court orders. Although Mr Haig has made positive and remarkable personal progress, the fact of his persistent re- offending must be denounced. Alternative forms of transport and/or walking are the consequences of his offending, once he is released from prison. Hopefully, that will serve as a reminder of the importance of complying with court orders, as every other New Zealand citizen must.[42] The appeal is dismissed.Cull JSolicitors:Woodward Chrisp, GisborneCrown Solicitors Office, Gisborne