BULL v NEW ZEALAND POLICE [2019] NZHC 899

BULL v NEW ZEALAND POLICE [2019] NZHC 899 [24 April 2019]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI 2019-419-8[2019] NZHC 899BETWEEN KELVIN DAVID BULLAppellantAND NEW ZEALAND POLICERespondentHearing: 12 April 2019Counsel: J McLeod for AppellantB Vaili for RespondentJudgment: 24 April 2019JUDGMENT OF DUFFY JThis judgment was delivered by me on 24 April 2019 at 11.30 am pursuant toRule 11.5 of the High Court Rules.Registrar/ Deputy RegistrarSolicitors:Public Defence Service, HamiltonCrown Solicitor, Hamilton[1] The appellant, Kelvin Bull, appeals against his disqualification from drivingwhich was part of a sentence that was imposed upon him by Judge Burnett on 21December 2018. This sentence followed Mr Bull's conviction, after entry of guiltypleas, on charges under the Land Transport Act 1998 (LTA) of driving whiledisqualified; failing to stop; and giving false information. There is no challenge to theother sentences that the Judge imposed on Mr Bull.[2] The above charges all arose from the same incident when Police stoppedMr Bull and the vehicle he was driving on 14 May 2018 and found he was adisqualified driver. Other charges also arose from this incident: namely, refusing topermit a blood specimen; aggravated assault; and resisting arrest. However, becauseMr Bull maintained not guilty pleas to these charges they were not heard until Marchthis year by Judge Rollo in the Tauranga District Court. The Judge alone trial resultedin findings of guilty and convictions were entered on these charges, for which Mr Bullis due to be sentenced on 8 May 2019.[3] The sentence appeal is essentially based on an argument that the sentencingbefore Judge Burnett has miscarried through process error.[4] The incident arose in Tauranga. The charges were all originally based in theTauranga District Court. After guilty pleas were entered to some of the charges atsome time a District Court Judge transferred those charges to the Hamilton DistrictCourt for sentencing. This is when Ms McLeod, who works for the Public Defenderat Hamilton, came to be involved.[5] At the sentencing hearing before Judge Burnett Ms McLeod sought anadjournment. She had only learned about the sentencing date at short notice fromMr Bull. The prosecuting sergeant had not been notified and he did not have the file.There was no agreed summary of facts for the charges to which the guilty pleas wereentered. In addition, Ms McLeod had wanted to file an application pursuant to s 94 ofthe LTA for disqualification to be substituted with a community-based sentence, butthe short notice she received had left her no time to take that step. Accordingly, MsMcLeod requested the sentencing be adjourned to the same date as the Judge alonetrial for the defended charges. This presumably would also have required thesentencing to be transferred back to the Tauranga District Court so that everythingcould be dealt with by the one Judge.[6] Whilst there was no agreed police summary of facts to support the charges towhich guilty pleas had been entered, Judge Burnett did have a police summary of factsthat disclosed facts to support all the charges, including those that were disputed. Shealso had a pre-sentence report. The Judge concluded that the sentencing shouldproceed that day and so it did. Ms McLeod was given the opportunity to present anoral application under s 94, which was unsuccessful.[7] Mr Bull's complaint is first, that Judge Burnett was wrong to refuse to adjournthe sentencing. The failure to do so meant that Ms McLeod did not have a properopportunity to present his case at sentencing.[8] Secondly, because the Judge proceeded to sentence Mr Bull on a summary offacts that included disputed material relating to charges to which he had pleaded notguilty she was, therefore, aware of information that was adverse to Mr Bull, and whichplaced him in a poor light. At the time of sentencing the presumption of innocencewhich he then enjoyed meant that adverse information relating to the charges to whichhe had pleaded not guilty should not have been before the Court. Before he could besentenced on the charges to which he had pleaded guilty there should have been aPolice summary of facts relevant to those charges only before the Court. Moreover,either the facts of that summary would have been accepted by Mr Bull or, if disputed,there should then have been a disputed facts hearing. Accordingly, as matters were,the sentencing proceeded with the Court having adverse disputed facts before it.[9] Thirdly, there was no time to make a proper application pursuant to s 94 of theLTA. Essentially, Ms McLeod was placed in the position of having to make an off thecuff oral application which would necessarily not have been as well prepared as anapplication for which she had been given sufficient time to prepare and to reduce towriting. Thus the chances of the application's success were diminished by the natureof its form.[10] Finally, there was a separate matter which was not uppermost in Ms McLeod'smind at the time, but which since the hearing before Judge Rollo has become moreapparent and of greater significance. Seemingly, Judge Rollo has indicated that hewould have been of a mind not to impose a period of disqualification for the charge ofrefusing to permit a blood specimen. Instead, Judge Rollo would have been preparedto consider imposing an alcohol interlock sentence. However, the disqualification thatJudge Burnett has imposed bars this outcome.[11] In addition, the haste with which the sentencing proceeded before JudgeBurnett resulted in other errors which the respondent acknowledges. First, a period ofdisqualification was imposed on the charge of providing false information when therewas no legal basis for doing so. Accordingly, that disqualification requires removal.The length of disqualification on the charge of failing to remain stopped should, therespondent submits, be six months cumulative on the disqualification for driving whiledisqualified. In this regard I note the respondent has not filed a cross appeal. However,the setting aside of the disqualifications will provide the respondent with anopportunity to address the District Court on this topic should the respondent wish todo so.[12] The offence of refusing to permit a blood specimen, which led to Mr Bull'sconviction before Judge Rollo qualifies for the imposition of an alcohol interlocksentence. However, it would be pointless to do so given the disqualification imposedby Judge Burnett. Judge Rollo is aware of the appeal against the disqualificationimposed by Judge Burnett and accordingly he has deferred sentencing on theoutstanding matters until the outcome of the appeal is known.[13] The short point is that if all the charges relating to the one incident had beenkept together the sentences on all charges would have been dealt with at the same time.It would then have been open to a sentencing Judge to impose an alcohol interlocksentence and to not impose any disqualification. This is a possible outcome becauseunder s 65AH(3)(b) of the LTA if a concurrent offence (which is what the disqualifieddriving and failing to stop offending would be) did not result in injury or death (whichit did not), the Court may take into account the alcohol interlock sentence that isordered for the qualifying offence under s 65AC and choose not to order anydisqualification that might otherwise apply to the concurrent offence/s. Accordingly,if all offences had been dealt with at the one time it would have been open to thesentencing Judge to impose an alcohol interlock sentence for the qualifying offence(refusing to permit a blood specimen), and also to not impose disqualification for theconcurrent offences which, here, would be the disqualified driving and failing to stopoffences.[14] Because of the way the charges were split it necessarily followed that there wasno qualifying offence for an alcohol interlock sentence before Judge Burnett, so shecould never have imposed such sentence. One of the offences before Judge Rollo doesqualify for an alcohol interlock sentence, but there is no practical point in imposingthat sentence given the disqualification that was imposed by Judge Burnett. Itnecessarily follows from all this that Mr Bull has been prejudiced by the splitting ofcharges which have arisen from the same incident.[15] Section 250 of the Criminal Procedure Act 2011 provides that the first appealCourt in an appeal against sentence must allow the appeal if satisfied that for anyreason there is an error in the sentencing imposed on conviction, and a differentsentence should be imposed.[16] Here Mr Bull has lost the opportunity to be considered for an appropriatesentence for his offending in the form of an alcohol interlock sentence. This is not tosay he should receive an alcohol interlock sentence, but simply to recognise that itappears to be an appropriate sentence for someone like him, but because of the waythe District Court has procedurally managed the charges it is not available to him. Hehas suffered further prejudice by Judge Burnett's refusal to grant an adjournmentwhich meant the sentencing proceeded in circumstances where Mr Bull's counselappeared at short notice, where no proper summary of facts was before the Judge,where adverse information was wrongly placed before the Judge and there wasinsufficient time for Ms McLeod to prepare a s 94 application.[17] In total these errors suggest Mr Bull did not have a fair and proper opportunityto be heard on sentencing; which amounts to a material procedural irregularity, thatconstitutes an error in the sentence imposed by Judge Burnett.[18] The respondent argued that Mr Bull had suffered no prejudice through thesentencing proceeding before Judge Burnett. The absence of an agreed summary offacts was not prejudicial to the Judge's determination of the appropriate sentencebecause she made no reference to those parts of the summary which related to thedisputed charges. The respondent also argued that it cannot be assumed that Mr Bullwould, in fact, be granted an alcohol interlock sentence if all charges had been beforethe one Judge for sentence.[19] I accept that the pressures of the District Court's workload may require counselto sometimes appear at short notice and to represent their client in circumstances thatmay be less than ideal. I also accept that Judge Burnett made no reference to thepassages in the Police summary of facts that did not directly relate to the charges onwhich she was sentencing Mr Bull. Nonetheless, the additional information containedin the Police summary of facts placed Mr Bull in a poor light. A Judge reading thatsummary of facts may well have been adversely influenced by it when it came todealing with the adjournment application. Having such prejudicial information beforethe sentencing Judge may, at the least, create the appearance that Mr Bull did not havea fair opportunity to be heard that day.[20] Then, there is the fact that the splitting of charges relating to the one incidenthas precluded the imposition of an alcohol interlock sentence. Everything aboutMr Bull's criminal history shows him to be a recidivist offender when it comes todriving under the influence of alcohol. He clearly has a serious alcohol problem. Hehas taken steps to overcome the problem and has been in the past successful. Hemanaged to acquire a driver's licence following a period of indefinite disqualificationsome years earlier. However, the present offending shows he has fallen by the waysideagain.[21] Alcohol interlock sentences provide a technological answer to the problem ofalcoholics who are recidivist drunk drivers. Driving under the influence of alcoholendangers the safety of the community. Such conduct requires denunciation anddeterrence. However, the reality is that persons in the grip of an alcohol addictionhave little real control over their actions from time to time. This is where an alcoholinterlock sentence is ideal. The insertion of these devices in an offender's vehicleeffectively stops him or her from driving the vehicle after the consumption of alcohol.When those type of drivers have not touched alcohol they usually are no danger toothers.[22] Until the availability of alcohol interlock sentences the only way thecommunity could be kept safe from recidivist drunk drivers was by significant periodsof disqualification from driving. This often resulted in repeated offending of drivingwhile disqualified. It also could lead to other offending, which is exemplified by thepresent charges that Mr Bull faced. Such persons often realise the consequences oftheir actions once stopped by Police, which can lead to them attempting to resist arrestor in other ways become uncooperative.[23] The general comments I make are not to say that Mr Bull should receive analcohol interlock sentence. However, I think he should have been given theopportunity of seeking such a sentence. Further, that the Court sentencing should havehad the opportunity to consider the imposition of this sentence. The way matters haveturned out here, what appears, in principle, to be a suitable and appropriate answer toMr Bull's offending has been precluded by the procedural management of the chargesin the District Court.[24] I am satisfied that when the matter is looked at overall, the proceduralmanagement of the charges coupled with the way the sentencing proceeded beforeJudge Burnett have led to errors that warrant this Court interfering on appeal with thesentence imposed.[25] Accordingly, I consider the appropriate outcome here is to allow the appealagainst the sentence of disqualification. I therefore set the three disqualifications asideand remit the charges of driving while disqualified and failing to stop back to theDistrict Court for it to consider whether it is appropriate to order disqualification onthose charges. This will require the charges of driving while disqualified and failingto stop to be placed before Judge Rollo so that Mr Bull can be sentenced by one Judgeon all charges relating to the same incident.Result[26] The appeal against sentence is allowed. All disqualifications from drivingimposed in the Hamilton District Court are set aside. The question of whether anydisqualifications for the two relevant charges are imposed or not is remitted to theTauranga District Court for reconsideration.[27] The sentences are to be reconsidered by Judge Rollo as part of the sentencingfor the remaining charges which he is currently scheduled to hear on 8 May 2019.Duffy J