ARAIA v NEW ZEALAND POLICE [2019] NZHC 3374

ARAIA v NEW ZEALAND POLICE [2019] NZHC 3374 [17 December 2019]IN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYI TE KŌTI MATUA O AOTEAROAAHURIRI ROHECRI-2019-441-000039[2019] NZHC 3374BETWEEN MOSES ARAIAAppellantAND NEW ZEALAND POLICERespondentHearing: 17 December 2019Counsel: W Hawkins for the AppellantC R Stuart for the RespondentJudgment: 17 December 2019JUDGMENT OF DOOGUE JIntroduction[1] The appellant, Moses Araia, appeals against a sentence of seven months'disqualification imposed1 by a Community Magistrate in the District Court at Hastingson 18 September 20192 for the following charges:(a) driving while suspended;3 and(b) driving in excess of the speed limit.41 A fine of $500 was also imposed.2 Police v Araia DC Hastings CRI-2019-020-00065, 18 September 2019.3 Land Transport Act 1998, s 32(1)(c); maximum penalty is three months' imprisonment or a finenot exceeding $4,500, and disqualification from holding or obtaining a driver licence for at leastsix months.4 Section 40; Land Transport (Offences and Penalties) Regulations, regs 3 and 4; and Land Transport(Road User) Rule 2004, r 5.1(1); maximum penalty is a fine not exceeding $1,000.[2] A first appeal was filed in the District Court at Hastings. That appeal was notopposed by the Police. However, on 14 November 2019, the appeal was dismissed byJudge A J Adeane.5[3] Mr Araia now appeals Judge Adeane's decision, leave having been granted bySimon France J on 26 November 2019.Approach on appeal[4] Mr Araia appeals his sentence under s 253 of the Criminal Procedure Act 2011.That provision outlines the process for second appeals, though the principles are thesame as for first appeals.[5] The Court must allow Mr Araia's sentence appeal if satisfied that, for anyreason, there is an error in the sentence imposed on conviction and that a differentsentence should be imposed.6[6] A sentence appeal is an appeal against a discretion and only if the sentence ismanifestly excessive or contains an error in principle should the appellate court re-exercise the discretion. An error of principle includes an error of fact or law, failingto take into account a relevant consideration, or if the decision was plainly wrong.7The focus is on the final sentence and whether that was in the available range, ratherthan the exact process by which it was reached.8Background[7] On 13 December 2018, Mr Araia was suspended from driving any motorvehicle for a period of three months due to having excess demerit points.[8] At about 10:20 a.m. on Saturday, 23 February 2019, Mr Araia was drivingalong Takapu Road, Hastings. He made a sudden sharp turn into his home address onthat road which caught the attention of an on-duty police officer.5 Police v Araia DC Hastings CRI-2019-020-003122, 14 November 2019.6 Criminal Procedure Act 2011, s 256(2).7 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 481 at [30]-[35].8 Ripia v R [2011] NZCA 101 at [15].[9] He was stopped for a routine traffic stop and his licence status was revealed.[10] On Sunday, 30 June 2019, at about 5:20 p.m., Mr Araia was the driver of amotor vehicle on SH2, Te Hauke, Hastings. The posted speed limit was 100km/h.Mr Araia was speeding and was checked at a speed of 176km/h. Police stopped himand he denied the facts as outlined.[11] Mr Araia pleaded guilty to both charges on 18 September 2019. On the drivingwhile suspended charge, he was convicted and fined $400.00, ordered to pay Courtcosts of $130.00, and disqualified for six weeks. On the driving with excessive speedcharge, he was convicted and fined $500.00 and was disqualified from holding orobtaining a driver licence for seven months commencing 18 September 2019. Thetwo sentences were to run concurrently.Parties' submissionsMr Araia[12] Mr Hawkins, for Mr Araia, argues that the District Court Judge should haveallowed the appeal against the Community Magistrate's decision and exercised hisdiscretion pursuant to s 94 to impose a community-based sentence in lieu ofdisqualification.[13] In upholding the refusal to impose a community-based sentence in lieu ofdisqualification, Mr Hawkins argues the Judge failed to impose the least restrictiveoutcome and as a result the sentence is manifestly excessive. Here he reliedsignificantly on the decision of Cooke J in Bartram v Police.9[14] Further, Mr Hawkins says in addition to there being no regard for the leastrestrictive outcome, there was no mention of any other relevant principle or purposeof sentencing.9 Bartram v Police [2019] NZHC 90.Crown[15] Mr Stuart, for the Crown, submits that there was no error in the CommunityMagistrate's decision. With reference to several decisions of this Court, he submitsthat it was entirely proper for the Community Magistrate to decline to exercise herdiscretion under s 94 after taking into account Mr Araia's poor driving history and therisk he posed to public safety.10[16] In response to Mr Hawkins' reliance on Bartram, Mr Stuart submits that it isonly helpful in respect of the "conversion rates of disqualification to community workhours". It does not however analyse the factors relevant to whether the discretionunder s 94 should be exercised in the first place. Therefore, the CommunityMagistrate did not err in failing to consider Bartram.The District Court decisions[17] The relevant facts and circumstances were not set out fully in either theCommunity Magistrate's decision or the District Court Judge's decision. 11 This is notsurprising given the extremely busy environment in which District Court judicialofficers operate. But a minimum description of the reasons for the exercise ofdiscretion one way or the other is always necessary to demonstrate that the judicialofficer has had regard to all of the relevant purposes and principles of the relevant Actsincluding the Sentencing Act 2002.12[18] In this case, the relevant provision is s 94 of the Land Transport Act 1998,which provides:94 Substitution of community-based sentences(1) This section applies if—(a) the offender has previously been ordered on conviction for anoffence to be disqualified from holding or obtaining a driverlicence; and10 Wilson v Police [2014] NZHC 3028; Parata v Police [2016] NZHC 3026; Tarei v Police [2017]NZHC 1270.11 I have only a draft unsigned oral decision of Judge Adeane but both counsel accept it is an accuraterecord of what was said in Court by the Judge on 14 November 2019.12 Sentencing Act 2002, s 31. For a similar discussion in respect of giving reasons for factual findingsand evidential inferences which result in conviction in judge-alone trials, see Sena v Police [2019]NZSC 55 at [36]-[37].(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,—considers that it would be inappropriate to order that theoffender be disqualified from holding or obtaining a driverlicence; and(c) the court considers that it would be appropriate to sentencethe offender to a community-based sentence in accordancewith Part 2 of the Sentencing Act 2002.(2) Despite any provision of this Act that requires a court (in the absenceof special reasons relating to the offence) to order a person convictedof an offence to be disqualified from holding or obtaining a driverlicence, 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 notto make an order of disqualification,—(a) the court must impose a community-based sentence on theoffender; and(b) the imposition of such a sentence does not limit or affect thepower of the court to impose any other sentence for theoffence that, in accordance with the provisions of theSentencing Act 2002, it may impose in addition to thecommunity-based sentence; and(c) in determining the appropriate sentence to be imposed on theoffender in respect of the offence, the court must take intoaccount the gravity of the offence and the fact that theoffender would otherwise have been liable to disqualificationfrom 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-basedsentence if—(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(aa) an alcohol interlock sentence has been ordered under section65AC(1); or(b) the offender is prohibited from applying for a limited licenceunder section 103(2)(a), (b), or (d).[19] Section 94 applies to Mr Araia because although this particular offendingconcerns a suspension of licence and not a disqualification, he has previously beenordered on conviction to be disqualified from holding or obtaining a driver licence.13[20] I turn now to Judge Adeane's decision which contains a pithy five paragraphs.In the first paragraph he sets out the grounds of appeal. In the second paragraph hefinds that the Community Magistrate applied s 94 "unimpeachably".[21] At [3] and [4], the Judge discusses the relative merits of the imposition of afine compared to a period of community work and held that in imposing the fine theCommunity Magistrate was correct — she must have considered community work tohave been manifestly excessive, hence the imposition of a fine. The Judge also heldthat s 94 was not applicable in this case.[22] With respect, the Judge appears to have been confused. The relevantconsideration is not whether a fine or community work ought to have been imposed,but rather whether community work should be imposed as a substitute for themandatory period of disqualification. The Judge has therefore misdirected himselfand is in error.[23] The Judge is also in error because "any other sentence" in s 94(3)(b) allows fora fine to be imposed in addition to community work when a judicial officer decidesnot to impose the mandatory disqualification but rather some form of substitutedsentence. Therefore, the fine, of itself, was in no way determinative of what the leastrestrictive outcome was in the circumstances; it was always available.14[24] As the District Court Judge erred in law, that leaves me to review theCommunity Magistrate's decision.13 See Police v Smith [2012] NZHC 2346, [2012] NZAR 965.14 This is also true given the maximum penalty for contravening s 32(1) of the Land Transport act1998 is three months' imprisonment or a fine not exceeding $4,500, and disqualification fromholding or obtaining a driver licence for at least six months.The Community Magistrate's decision[25] In applying s 94, the Court must have regard to certain mandatoryconsiderations set out in s 94(1)(b). They are:(a) the circumstances of the case and of the offender;(b) the effectiveness or otherwise of a previous order of disqualificationmade in respect of the offender;(c) the likely effect on the offender of a further order of disqualification;and(d) the interests of the public.[26] It is reasonably clear that the Community Magistrate declined the applicationto substitute community work for disqualification for two reasons: Mr Araia'sextensive demerit point history and his driving at 176km/h in a 100km/h speed limitarea was such that he put the public at risk. Disqualification was necessary in theCommunity Magistrate's view so as to keep Mr Araia off the road in the interests ofpublic safety. In other words, Mr Araia failed the threshold test in s 94 of the LandTransport Act 1998.[27] In this case the Community Magistrate appears to have confined her attentionto subs (1)(b)(iv). It is not necessary for a judicial officer to explicitly refer to each ofthe factors in s 94(1)(b), provided that he or she has regard to them.15 However, inthis instance, there is an absence of attention to the circumstances of the offender andthe likely effect on the offender of a period of disqualification. These are mandatoryconsiderations under s 94(1)(b)(i)–(iii). Because of this, I am satisfied the CommunityMagistrate erred by failing to take into account relevant mandatory considerations indeclining to exercise her discretion under s 94.[28] Accordingly, I will consider Mr Araia's sentence afresh.15 Police v Body [2013] NZHC 1586 at [19]; Poona v Police [2018] NZHC 791 at [25].Analysis of Bartram[29] Mr Hawkins has placed significant weight in his submissions on Bartram vPolice. In that case, Mr Bartram was stopped, it would appear, at a routine policecheckpoint rather than because of the manner in which he was driving. At thatcheckpoint however, it was revealed that he had been driving while disqualified.[30] Mr Bartram was employed as a rural farm hand at the time and needed to beable to drive to remote rural areas as part of that employment. He was young and heentered an early guilty plea.[31] Mr Bartram was sentenced in the District Court for one charge of driving whiledisqualified. The District Court Judge decided to impose a sentence of communitywork in lieu of a period of disqualification, but also increased the period of communitywork. The Judge imposed a total sentence of 200 hours' community work.Mr Bartram appealed on the basis that the sentence was manifestly excessive.[32] Cooke J reviewed a series of District and High Court decisions discussing s 94of the Land Transport Act 1998. Little can be drawn from that review in respect ofthis particular case. Indeed, the Judge himself observed:16 there may have been some lack of consistency in the application of periodsof community work in the cases since Body. This lack of consistency is notcompletely explained by the personal circumstances giving rise to the exerciseof the s 94 discretion.[33] Nonetheless, Cooke J found that the amount of the period of community workimposed in that case was excessive.[34] He concluded that given the decision in Police v Body considered a number ofcases for offending of this kind, it provided the best guidance for the appropriaterange.17 He found that there is a general starting point of an additional 20-40 hours'community work in lieu of a six-month disqualification period. 20-40 hours'community work might also be a starting point for breach of a six-monthdisqualification period concerning a first or second offence without aggravating16 Bartram v Police, above n 9, at [16].17 Police v Body, above n 15.factors, although this will be heavily influenced by the circumstances of the particularcase.[35] Cooke J allowed the appeal because there were no concerning features ofMr Bartram's driving, he was young and in settled employment.18 In doing so, heobserved:19Care should be exercised to ensure that discretion is not exercised tooleniently, and to make it plain that escalating driving offending is not to betolerated. But 40 hours' community work is still a significant period forMr Bartram to manage within his work commitments...[36] I agree with Mr Hawkins that Bartram provides guidance in respect of applyings 94, that is in determining the appropriate amount of community work once thedecision to exercise the discretion in that provision has been made. However, it doesnot assist me in determining whether the discretion should be exercised in the firstplace. That falls to a consideration of the factors in s 94(1)(b).[37] Mr Hawkins' written submissions did not provide me with any relevantinformation in terms of the factors in s 94(1)(b). Therefore, by way of a minute dated12 December 2019, I asked for Mr Araia to provide an affidavit explaining his personalcircumstances and addressing the factors in that provision.Mr Araia's personal circumstances[38] Mr Araia lives in Hastings and is a father to five children between the ages ofseven years and eight months. Mr Araia's four youngest children live with theirmother who is a registered nurse living in Te Hauke, some 20kms from Hastings.Mr Araia assists where he can such as by providing transport to and from school andday care.[39] For the past three years, Mr Araia had been employed as a machine operator.That employment ended in mid-November of this year. Since then, he has beenlooking for employment in the horticulture industry. However, he has been turneddown by three employers within the past month because of his disqualification.18 Bartram v Police, above n 9, at [18].19 At [18].[40] Mr Araia is repentant for his actions and the impact his disqualification mayhave on his ability to assist the mother of his children with child care responsibilities.He has given his word that if this Court were to substitute his disqualification forcommunity work, he would do his utmost to ensure it was completed around anyemployment obligations he may have. He also indicated he is happy to complete adefensive driving course.[41] Mr Araia also provided context to the driving while suspended charge. Hedeposed that he had been drinking with a friend and they had gone out to buy somefood. Mr Araia did not drive. When they got back to Mr Araia's house, he decided tomove the car off the road as feared it may be broken into or stolen over the weekend.He was stopped by a police officer who discovered Mr Araia had had his licencesuspended. While Mr Araia denies having driven other than to move the car off theroad, he acknowledges that he should not have even done that.[42] Finally, Mr Araia has confirmed that he has two previous convictions whichresulted in disqualifications. These were for driving while suspended in April 2012which resulted in disqualification for six months, and driving in excess of the speedlimit in May 2013 which resulted in disqualification for 30 days. Mr Araia says thatthese convictions occurred before he had his children and during a very differentperiod of his life.Analysis[43] Mr Stuart submits that Mr Aria's personal circumstances are unremarkable;there is nothing in his affidavit that supports his appeal. On the contrary, he submitsthat there is no compelling evidence pointing towards the need for a licence tomaintain employment or care for his children. While it may be that there is moral andfinancial pressure placed on Mr Araia as a result of his disqualification, this is simplythe unfortunate but natural consequence of a conviction for recidivist drivingoffending.[44] It is the Crown's view that s 94 should be used infrequently. In Wilson v Police,Dobson J said:20[12] Section 94 should only justify a variation from the norm where thepersonal circumstances of the offender, and in particular the rehabilitativeprospects, justify affording the offender an opportunity to break the cycle ofcircumstances contributing to the recidivist offending.[45] Subsequently in Parata v Police, Downs J cited Wilson with approval, statingthat s 94 "makes plain the offender's interests are but part of the statutory mix... tooready resort to s 94 could undermine the efficacy of disqualification as a penalty moregenerally." 21 Downs J reiterated this view in Tarei v Police, noting there is "publicinterest in the imposition of at least the presumptive penalty when the associateddriving was dangerous."22[46] However, the Courts have on a number of occasions described s 94 as beingremedial in nature.23 As Paul Davison J said in Poona v Police:24[Section 94] gives recidivist offenders who may for a variety of reasons havefailed to comply with the prohibition from driving while disqualified anopportunity to break the cycle of offending by substituting a different form ofsentence.[47] His Honour went on to observe that there is some divergence in the approachtaken by the Courts in respect of s 94.25 Where, as in Wilson, a strict view of s 94 hasbeen taken, the Courts have more readily declined to employ s 94 in the absence ofevidence of extraordinary consequences resulting from disqualification, or an expressdesire by the offender to rehabilitate.26 On the other hand, some Judges have beenwilling to exercise their discretion under s 94 where it has been recognised that theoffender is trapped in a cycle of offending and that the purposes of sentencing are bestachieved by imposing a different sentence.2720 Wilson v Police, above n 10.21 Parata v Police, above n 10, at [10].22 Tarei v Police, above n 10, at [13].23 Maeva v Police HC Auckland CRI-2010-404-402, 11 March 2011 at [30]; Wilson v Police, aboven 10, at [10]; Paikea v Police [2017] 3032 at [12]; Poona v Police, above n 15, at [17].24 Poona v Police, above n 15, at [17].25 At [20].26 At [21].27 At [21].[48] While acknowledging the concerns expressed in cases where a strict view hasbeen taken, Paul Davison J concluded (footnotes omitted):[23] Certainly it is necessary to use caution in applying s 94 so that it doesnot become a means by which those with a wilful disregard for the law areable to avoid a penalty of disqualification. Nevertheless the section needs tobe employed realistically in order to break a cycle of offending which appearslikely to continue and which means that disqualification is ineffective as apenalty. The starting point is that disqualification is to be ordered. However,where an offender is repeatedly driving in breach of an order ofdisqualification, the penalty of disqualification is demonstrably ineffective indeterring the offender...[24] The imposition of a community-based sentence under s 94 should notbe regarded as a lenient sentencing option. Rather, it is simply the court'schoice of a penalty that more effectively meets the purposes of sentencing.[49] Unlike many recidivist offenders who seek recourse to s 94, Mr Araia'sconviction history is limited. His only two convictions are those entered in 2012 and2013. However, he has amassed six licence suspensions as a result of accumulating asufficient number of demerit points on each occasion.28[50] Further, it appears that Mr Araia's demerit points have predominantly beenobtained as a result of him breaching the conditions of his learner licence. He hasbeen caught driving unaccompanied 18 times and driving without displaying 'L' platessix times. While this non-compliance history is peculiar, in my view it does not poseany material risk to public safety.[51] The same cannot be said for Mr Araia's speeding history. Since 2010, Mr Araiahas amassed eight fines for driving in excess of the posted speed limit. On four ofthose occasions, the speed limit was 100km/h. And on two of those occasions,Mr Araia received 50 demerit points — the greatest number that can be given, reservedfor instances where a driver exceeds the speed limit by more than 35km/h. Theconviction for speeding which is the subject of the present appeal is of particularconcern. Put simply, driving at 176km/h is extremely reckless. It is perhaps by astroke of luck that Mr Araia did not lose control and kill himself or someone else. Itherefore agree with the Community Magistrate that this behaviour, along with28 If a person accumulates 100 demerit points over a two-year period, their licence is automaticallysuspended for a period of three months.Mr Araia's history of speeding, weigh against the exercise of my discretion under s 94;the risk Mr Araia poses to public safety is significant and there is public interest inprecluding him from driving for a period of time.[52] It is against this public interest that the factors in s 94(1)(b)(i)-(iii) must bebalanced.[53] First, Mr Araia's personal circumstances. I accept that a lengthy period ofdisqualification would likely mean that the mother of Mr Araia's children will have toassume sole responsibility for transporting her and Mr Araia's children to day care andschool. However, in his affidavit Mr Araia states that she already has full custody ofthe oldest four children and that he "supports the kids where [he] can". I infer fromthis that Mr Araia's support is not extensive and disqualification is unlikely todisproportionately burden the mother of his children to the extent submitted onMr Araia's behalf.[54] Turning next to the effectiveness of previous orders made in respect ofMr Araia, to his credit he successfully complied with both Court-ordereddisqualification periods resulting from his 2012 and 2013 convictions. Nevertheless,Mr Araia has an extensive history of breaching road rules and licence conditions,resulting in six licence suspensions in the space of eight years. As was noted in Poona,s 94 has previously been applied to address this sort of cycle of offending. However,the predominant issue for Mr Araia was compliance with the conditions of his learnerlicence, in particular, the requirement that he does not drive unaccompanied. He hassince obtained a restricted licence. Given he can now drive unaccompanied betweenthe hours of 5 a.m. and 10 p.m., I am optimistic that Mr Araia will have less troublecomplying with the conditions of his new licence and that the previous cycle ofoffending will be broken.[55] Finally, the likely effect on Mr Araia of a further period of disqualification. Iam conscious of the impact a period of disqualification may have on a person livingin a rural area where driving may be paramount to securing employment. In manyinstances, a period of disqualification in these circumstances may be significantlymore onerous than in respect of a person living in a metropolitan area with access topublic transport.[56] In Mr Araia's case however, I note three things. First, Mr Araia does not liverurally himself; he lives in Hastings. Second, until very recently he was employed asa machine operator. He has since sought employment in the horticulture sector not outof necessity, but because he is familiar with it. While a disqualification maytemporarily impede him from finding employment outside of Hastings, it does notpreclude him from finding employment within the town itself. Third, Mr Araia hashad to live with the same obstacle on each of the six occasions he has had his licencesuspended. There is no evidence before this Court that he found those occasionsdisproportionately onerous.[57] Overall, I consider that these factors weigh against the exercise of mydiscretion under s 94. While I acknowledge the hardship raised by Mr Araia in hisaffidavit and the matters submitted on his behalf, they are not to such a level thatrecourse to s 94 is warranted. That his convictions have come at Christmas time, aswas submitted by Mr Hawkins, is unfortunate but unremarkable in itself. On thecontrary, the factors to which I have had regard are the natural and ordinaryconsequences of offending of this kind.Appropriate sentence?[58] While I consider the Community Magistrate to have erred in her application ofs 94, I nonetheless consider the sentence imposed to have been appropriate. In myview, an elevated level of denunciation and deterrence to that inherent in the minimumdisqualification period of six months was warranted given the risk Mr Araia posed tothe public in grossly exceeding the speed limit and his history of similar offending.[59] I also consider a period of disqualification of seven months and a fine of $500to be the least restrictive outcome in Mr Araia's circumstances.Result[60] The appeal is dismissed._______________________Doogue JSolicitors:Bramwell Bates Lawyers, HastingsCrown Solicitor, Napier