RYDER-WARE v NEW ZEALAND POLICE [2022] NZHC 3172

RYDER-WARE v NEW ZEALAND POLICE [2022] NZHC 3172 [30 November 2022]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2022-404-000341[2022] NZHC 3172BETWEEN KYLE HENARE RYDER-WAREAppellantAND NEW ZEALAND POLICERespondentHearing: 28 November 2022Appearances: Tony Beach for the AppellantLilla Dittrich for the RespondentJudgment: 30 November 2022JUDGMENT OF MOORE J[Appeal against sentence]This judgment was delivered by me on 30 November 2022 at 12:00 pm.Registrar / Deputy RegistrarDate:Background[1] Kyle Ryder-Ware pleaded guilty to charges relating to firearms offending, fourdriving-related offences under the Land Transport Act 1998 ("LTA") and resistingPolice.1 On 1 October 2020, Judge C J Field convicted and discharged him on threeof the driving-related charges, but imposed a sentence disqualifying him from drivingfor a period of two years on the remaining charge of failing to remain stopped.2[2] Mr Ryder-Ware seeks leave to appeal his sentence of disqualification out oftime. He argues that in light of this Court's decision in Martin v Police,3 the Judgeerred by finding that the relevant offence was a third or subsequent offence for whichdisqualification must be imposed.[3] The Crown concedes that this was an error and accepts that the sentence ofdisqualification ought to be quashed and substituted for an appropriate sentence.[4] In light of the Crown's position, I consider that an extension of time to bringthe appeal should be granted.The offending[5] For present purposes it is only necessary to briefly summariseMr Ryder-Ware's offending.[6] On 8 August 2020, Mr Ryder-Ware was driving a vehicle down a street inPonsonby, Auckland. He overtook other drivers, narrowly missing oncoming traffic.The Police identified the vehicle as having stolen registration plates and pulled himover. Mr Ryder-Ware did not have a driver licence at the time. He got out of thevehicle and ran away. The Police found him hiding in the backyard of a nearbyproperty.1 These were for being a person on a road and failing to give his name and address; failing to remainstopped; being an unlicensed driver and failing to comply with the prohibition; and carelessdriving.2 Police v Ryder-Ware [2020] NZDC 20074. See also Land Transport Act 1998, ss 52A(1)(b) and114. If a person is convicted of an offence against s 52A(1) for a third or subsequent time, themaximum penalty is three months' imprisonment and the court must order the person to bedisqualified from holding or obtaining a driver licence for two years.3 Martin v Police [2021] NZHC 1356.District Court sentencing[7] The Judge took the firearms offending as the lead charge and imposed asentence of three months' imprisonment.4 He then convicted and dischargedMr Ryder-Ware on three of the four driving charges. He left undisturbed the charge offailing to remain stopped.5 The Judge went on to say that "the law requires" that heimpose a disqualification of two years,6 seemingly a reference to Mr Ryder-Ware'sprior convictions from 2016. With commendable prescience, the Judge noted that hedid "not know whether that is perhaps an unintended consequence of the legislation".7Did the Judge err by imposing the two-year disqualification period?[8] The issue is whether the Judge erred by imposing that two year disqualificationperiod and whether a different sentence should be imposed.8[9] After the Judge imposed the disqualification, but before the disqualificationperiod ended, this Court issued its decision in Martin. There, Palmer J determinedthat s 52A of the LTA, inserted by the Land Transport Amendment Act 2017, preventeda sentencing Judge to take into account previous disqualifications which pre-dated theamendment.9 Section 52A provides that if a person commits a third or subsequentoffence against "subsection (1)", the Court must order the person to be disqualifiedfrom holding or obtaining a driver licence for two years.10[10] Palmer J considered that s 52A did not refer to the repealed predecessorprovision, although it incorporated the same wording.11 The text was clear in referringto a person "convicted for a third or subsequent offence against subsection (1) [ofs 52A]".12 The Judge thus found that convictions pre-dating the enactment of s 52Awere not captured by the provision and could not be taken into account.134 Police v Ryder-Ware [2020] NZDC 20074 at [1]–[3].5 At [4].6 At [5].7 At [5].8 Criminal Procedure Act 2011, s 250.9 At [2].10 At [2] citing Land Transport Act 1998, s 52A(5).11 At [12].12 At [14].13 At [16]–[17].[11] Palmer J's approach has since been followed in Hallmond v R andTongalahi v Police.14 Both parties to this appeal agree that it should be applied in thepresent case. For completeness I agree.[12] No criticism can be levelled at the sentencing Judge for imposing thedisqualification prior to this Court's decision in Martin. In fact, as previously noted,the Judge recognised that this may be an unintended consequence of the insertion of s52A. However, I am satisfied that the Judge erred in doing so. Mr Ryder-Ware'sconvictions which pre-date the amendment should not have been taken into account.For that reason the appeal must be allowed.[13] The next question is what should be the appropriate sentence? Given thesentence of imprisonment imposed on the firearms charges, this issue relates solely tothe appropriate disqualification period (if any).[14] Mr Beach, for Mr Ryder-Ware, and Ms Dittrich, for the Crown, agreed that theapplicable provision was s 52A(2), rather than s 52A(5). That sub-section providesthat the maximum penalty for an offence against s 52A(1) is a fine not exceeding$10,000. As Mr Ryder-Ware has served his sentence of disqualification in full, counselagreed that this Court substituting a fine would result in double punishment. Theproper result was said to be a conviction and discharge.[15] I agree that this is the appropriate course. The penalty for a first offence unders 52A is prescribed by ss 52A(2) and (3). Subsection (3) applies only where the drivingis dangerous. The applicable penalty under s 52A(2) is a fine. To substitute a fineafter Mr Ryder-Ware has served his two year disqualification period would constitutedouble punishment. The fine may also be incompatible with the sentence ofimprisonment imposed on the firearms charges.15[16] It follows, in my view, that the two year disqualification period should bequashed and substituted with a conviction and discharge.14 Hallmond v R [2021] NZHC 2369; and Tongalahi v Police [2022] NZHC 1409.15 Sentencing Act 2002, s 19(3) and (9) provides that a fine may only be imposed with a sentence ofimprisonment in respect of a particular offence if authorised by the enactment specifying theoffence.Result[17] The application for an extension of time to bring the appeal is granted.[18] The appeal is allowed:(a) On the charge of failing to remain stopped, the two year disqualificationfrom obtaining or holding a driver licence is quashed and substitutedwith a conviction and discharge.(b) The sentence on the remainder of the charges is unaffected.Moore JBarristers/Solicitors:Mr Beach, AucklandCrown Solicitor, Auckland