BALLOCH v POLICE [2019] NZHC 227

BALLOCH v POLICE [2019] NZHC 227 [21 February 2019]IN THE HIGH COURT OF NEW ZEALANDINVERCARGILL REGISTRYI TE KŌTI MATUA O AOTEAROAWAIHŌPAI ROHECRI-2018-425-000031[2019] NZHC 227BETWEEN QUENTIN PHILLIP BALLOCHAppellantAND NEW ZEALAND POLICERespondentHearing: 4 February 2019Appearances: J Mooney for the AppellantS N McKenzie for the RespondentJudgment: 21 February 2019JUDGMENT OF NATION J[1] On 24 September 2018, on two charges of driving while disqualified (third orsubsequent), the appellant, Mr Balloch, was sentenced to four months' imprisonmentand 26 months' disqualification from driving.1 He seeks to appeal on the basis thatthe further period of disqualification was excessive.[2] When considering the length of disqualification for driving while disqualified,there can be good reason for a Judge to fix the length of the further disqualification asa punitive measure to bring home to the disqualified driver the obligation to respect aCourt's order for disqualification. In other situations, the emphasis may be onavoiding a disqualification which is for so long that it sets the offender up to fail,potentially resulting in a sentence of imprisonment that would not be in the interest ofeither the offender or the public. This appeal brings into focus the tension betweenthese two rationales for the term of a disqualification.1 Police v Balloch [2018] NZDC 20359.Application for leave to appeal out of time[3] Mr Balloch's appeal is just out of time. His notice of appeal was filed on 2November 2018, nine working days after the due date of 22 October 2018. There is arational explanation for the delay, given Mr Balloch was in custody during this periodand his lawyer had difficulty contacting him. The application for leave to appeal isgranted.Facts[4] Mr Balloch is a 36 year old solo father of two young children. He wasunemployed but has a qualification as a site traffic management supervisor. He hasbeen diagnosed with ADHD.[5] On 4 May 2017, Mr Balloch was disqualified from driving for 15 months fordriving with excess blood alcohol on 2 December 2016. That disqualification was dueto end on 4 August 2018. He had been sentenced previously for driving whiledisqualified on 30 June 2005, 1 May 2001 and 9 February 2001.[6] At around 3.00 pm on 15 May 2018, Mr Balloch was stopped by Police drivingon Crawford Street, Invercargill. His explanation was that he was picking his childrenup from school.[7] At around 4.00 pm on 14 June 2018, Mr Balloch was stopped by Police drivingon Eye Street, Invercargill. He admitted he had driven to the probation office for apre-sentence report relating to the 15 May 2018 driving offending, and said that afterthis he was driving to pick up his children.The sentencing in the District Court[8] At the time the Judge sentenced Mr Balloch for these two further offences ofdriving while disqualified, she also had to deal with charges of breaching conditionsof a sentence of imprisonment and two charges of breaches of conditions ofsupervision committed on 7 December 2017 and 7 June 2018, and failure to answerCourt bail on 10 May 2018. On those charges, Mr Balloch was convicted anddischarged. The sentencing Judge referred to Mr Balloch's significant breach history.She said he appeared to "thumb [his] nose" at Court orders, as exemplified by hisdriving to community probation for the purpose of his pre-sentence report. She saidthat his counsel had initially signalled he would be seeking a community-based penalty(under s 94 Land Transport Act) in lieu of disqualification. She said that would nothave had any success given his significant breach history and his then admission tobreaching several supervision sentences.[9] On the charge of driving while disqualified on 15 May 2018, the Judgesentenced Mr Balloch to two months' imprisonment and disqualified him from holdingor obtaining a driver licence for 13 months from 24 September 2018. That would havebeen until 24 October 2019.[10] On the charge of driving while disqualified on 14 June 2018, the Judgesentenced Mr Balloch to a further two months' imprisonment, cumulative on theearlier sentence of imprisonment (until 24 January 2019). She disqualified him fromdriving for a further 13 months, cumulative on the other term of disqualification.There was an error in her sentencing notes in that the Judge said this would becumulative from 24 October 2020 and he would thus be disqualified until towards theend of 2021.[11] The mistake in the Judge's remarks on sentencing has been reflected in hiscriminal and traffic history. It records that, on the charge of driving while disqualifiedon 14 June 2018, Mr Balloch was sentenced to two months' imprisonment, cumulativeon the sentence imposed on the other charge, and disqualified from driving for 13months from 24 October 2020.[12] That mistake needs to be corrected.[13] With that error corrected, the Judge's intention was obviously that Mr Ballochwould be sentenced to two cumulative periods of 13 months' disqualification so thathe would be disqualified until 24 November 2020.Principles on appeal[14] Appeals against sentence are allowed as of right by s 244 of the CriminalProcedure Act 2011, and must be determined in accordance with s 250 of that Act. Anappeal against sentence may only be allowed by this Court if it is satisfied there hasbeen an error in the imposition of the sentence and that a different sentence should beimposed.2 As the Court of Appeal indicated in Tutakangahau v R, an appellate courtwill not generally intervene where the sentence is within the range that can properlybe justified by accepted sentencing principles.3 It is only appropriate for this Court tointervene and substitute its own views if the sentence being appealed is "manifestlyexcessive" and not justified by the relevant sentencing principles.4SubmissionsAppellant's submissions[15] Mr Mooney, counsel for Mr Balloch, submitted that the total period ofdisqualification of two years and two months was excessive. He submitted it wouldhave been appropriate to impose two concurrent sentences of disqualification for 12to 18 months. He submitted that Mr Balloch had come very close to completing aperiod of disqualification of one year, three months before the offending for which hewas being sentenced. He also submitted there was no issue of public safety requiringa lengthy period of disqualification. Mr Mooney submitted the period of 26 months'disqualification "amounts to an almost insurmountable hurdle that leaves little hopefor Mr Balloch and is setting him up to fail".[16] Mr Mooney referred to McKenzie J's observation in Leaupepe v Police thatthe "principal objective of disqualification is public safety".5 He referred to a numberof cases where the High Court had considered the periods of disqualification imposedon more than one charge of driving while disqualified, third or subsequent.6 In thesecases, the disqualification periods ranged from 12 to 18 months.2 Criminal Procedure Act, ss 250(2) and 250(3).3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].4 Ripia v R [2011] NZCA 101 at [15].5 Leaupepe v Police [2015] NZHC 1766 at [8].6 Whitley v Police [2016] NZHC 1025; Farrell v Police HC Tauranga AP31/02, 27 March 2003;Wilson v Police [2016] NZHC 506; Ropiha v Police [2016] NZHC 839.Respondent's submissions[17] Ms McKenzie submitted the imposition of cumulative periods ofdisqualification was justified where the offences, although similar in kind, wereunconnected in time and did not constitute a continuing course of conduct. Shesubmitted the periods of disqualification imposed were within range, having regard tosentences that had been upheld by the High Court in other cases. In that regard, shereferred to Hendry v R where the High Court had upheld a 36 month period ofdisqualification where Hendry was being sentenced on three charges of driving whiledisqualified, being his sixth, seventh and eighth such convictions.7 She also referredto Swanston v Police where two cumulative periods of 15 months' disqualificationwere held to be justified for two instances of offending occurring within the sameweek.8Analysis[18] In Leaupepe v Police, McKenzie J discussed the rationale for disqualificationwhere the Court was concerned with driving with excess blood alcohol causing death.The rationale for disqualification will often be different where driving whiledisqualified is the offence rather than where the nature of the driving is at issue. Aswas said by the High Court in Lambert v Police:9The fact that an offender is driving while disqualified attracts punishment notbecause there is any fresh dangerous conduct but rather because a Courtsanctions are meaningless unless they are obeyed. A penalty is needed toensure that the earlier sentence is carried out and to maintain respect for thelaw but not because of any fresh fears for the safety of the public.[19] In Police v Body, Mallon J agreed that, in situations where an offender ishabitually driving in breach of an order for disqualification, the object of sentencingfor disqualified driving is purely to punish and not to remove an offender from theroads for the safety of the public.10 This was relevant to Mallon J in consideringwhether the discretion in s 94 had been properly utilised when a sentencing Judge had7 Hendry v R [2018] NZHC 884.8 Swanston v Police HC Christchurch CRI-2008-409-057, 19 June 2008.9 Lambert v Police HC Rotorua, AP62/90, 11 October 1990 at [6], cited by Mallon J in Police vBody [2013] NZHC 1586 at [10].10 Police v Body, above n 9, at [12].imposed a community-based sentence rather than a further period of disqualification.There is no suggestion in this case that the sentencing Judge should or could haveapplied s 94 in this way.[20] The personal circumstances of an offender and his previous offending may alsomean that concerns as to public safety may properly influence the length of adisqualification imposed for driving while disqualified.[21] The Judge here would have been entitled to take safety into account, given theinformation in the pre-sentence report that prison notes recorded Mr Balloch as havingadmitted he had been smoking methamphetamine for the past two years and as recentlyas the morning of 19 June 2018. That was just five days after the latter driving whiledisqualified offence for which he was being sentenced. The report to the Courtidentified that drug use was a possible factor in relation to his non-compliance andquestionable behaviour, as had been detailed in the application to cancel hissupervision sentence.[22] Mr Mooney referred to various cases where disqualification periods rangedfrom 12 to 18 months when the offender was being sentenced on more than one chargeof driving while disqualified (third or subsequent). Although the periods ofdisqualification imposed in those cases were shorter than here, the periods ofimprisonment in those cases ranged from eight months to two years and four months,significantly longer than the four months imposed on Mr Balloch.[23] On an appeal, the focus is on the end sentence that has been imposed. Wherea period of disqualification has been imposed in addition to a sentence ofimprisonment, it is appropriate to look at both the sentence of imprisonment as wellas the period of disqualification in deciding whether or not the sentences imposed weremanifestly excessive.[24] It is well recognised that cumulative periods of disqualification can be justifiedwhere, although offences are similar in kind, they are unconnected in time and do notconstitute a continuing course of conduct.11[25] Here, there were two distinct and separate offences of driving whiledisqualified, each committed in different circumstances. The offence of driving whiledisqualified on 14 June 2018 was committed while he was on bail for the offence ofdriving while disqualified on 15 May 2018 and in breach of a condition of bail that hehad been granted on the charge for that earlier offence.[26] Given the way Mr Balloch appeared to "thumb [his] nose" at Court orders andhis disqualification through his admitted offending, little credit could be given to himfor the fact that his then period of disqualification would come to an end in August2018. He had also filed an affirmation in support of an anticipated s 94 application.In that he referred to his driving one night on 2 December 2016 when he said he "madea silly decision to drive with a lady [he] had just met to get some fast food". As to thedriving while disqualified on 15 May, he had told the Police he was driving to collecthis children from school. In his affirmation he said that he had initially travelled(which must have been through driving his car) to a friend's house when it was a coldday. He explained his driving to an appointment with a probation officer on 15 Juneby saying that he needed to drive to avoid being late for an appointment and so hecould then go from the appointment to collect his children from school.[27] As a result of his sentencing on 24 September 2018, Mr Balloch was going tobe subject to sentences of imprisonment for a total of four months of the 26 months'disqualification period to which he had been sentenced.[28] Part of the reality before me too is that Mr Balloch, on 25 January 2019, wassentenced to imprisonment for one year and eight months on various charges. Theseincluded receiving committed on 26 April 2018, theft on 13 May 2018, burglary bynight on 14 May 2018 and burglary by night on 23 May 2018. He also received thatsentence for unlawfully taking a motor vehicle on 13 May 2018 and 22 May 2018.11 Hendry v R, above n 7, at [12]; citing Schruba v Police HC Dunedin, CRI-2008-412-30, 25September 2008, at [13]; R v Wallace [1983] NZLR 758 (CA).These last two offences must have been further instances of his driving whiledisqualified after the disqualification imposed on 4 May 2017. Mr Balloch will besubject to that current prison sentence until September 2020, by which time there willbe only approximately one month to run on the periods of disqualification that he isnow appealing.[29] It is hoped that Mr Balloch will address the factors which have led to all hisoffending, including driving while disqualified, while he is in prison and is subject tothe release conditions that were imposed with that sentence. He should have anopportunity to do so. Only though addressing those issues will he be ultimately ableto care for his children and obtain gainful employment, as he said he wanted to do.[30] I have not been persuaded there was any error in the sentencing which MrBalloch appeals, apart from the slip earlier referred to. I have not been persuaded thatthe sentence was manifestly excessive, or that a different sentence should otherwisehave been imposed.[31] Mr Balloch's appeal against the sentence of disqualification is allowed but onlyto correct the slip already referred to. As a result, on the charge of driving whiledisqualified on 15 May 2018, Mr Balloch remains disqualified from holding orobtaining a driver licence for 13 months from 24 September 2018.[32] On the charge of driving while disqualified on 14 June 2018, Mr Balloch isdisqualified from holding or obtaining a driver licence for 13 months from 24 October2019.Solicitors:J Mooney, Barrister, QueenstownPreston Russell Law, Invercargill.