RAKESH REDDY v NEW ZEALAND POLICE [2020] NZHC 197

RAKESH REDDY v NEW ZEALAND POLICE [2020] NZHC 197 [18 February 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-404-524[2020] NZHC 197BETWEEN RAKESH REDDYAppellantAND NEW ZEALAND POLICERespondentHearing: 17 February 2020Counsel: T Clee for AppellantY Olsen for RespondentJudgment: 18 February 2020JUDGMENT OF WHATA JThis judgment was delivered by me on 18 February 2020 at 4.00 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate: .Solicitors: Kayes Fletcher Walker[1] Mr Reddy was charged on two separate occasions for driving whiledisqualified. On the first occasion, he was sentenced to community service anddisqualification for one year and one day. On the second occasion, a community-basedsentence was imposed in substitute for a mandatory period of disqualification unders 94 of the Land Transport Act 1998 (the Act).[2] This appeal relates to the first sentence. Mr Reddy claims that he was neverproperly advised, in relation to the first sentence, that he could have applied, pursuantto s 94 for a sentence of community service instead of disqualification. Alternatively,he says this Court should examine whether a substituted order pursuant to s 94 should,in any event, be imposed.[3] The appeal against the first sentence is out of time. Application for leave toappeal out of time is sought and is not opposed on the basis that Mr Reddy soughtadvice for a limited licence after sentencing and attention thus belatedly turned to theoriginal sentencing outcome. Leave is therefore granted to appeal out of time.Background[4] Mr Reddy was sentenced on 31 May 2019 on one charge of driving whiledisqualified (third or subsequent). He was sentenced to 60 hours community workand one year one day of disqualification from 24 July 2019. He subsequentlyreoffended and was charged with driving while disqualified (third or subsequent) on21 August 2019. Mr Reddy sought, in respect of this charge, an alternative sentencepursuant to s 94 of the Act. That was granted by Judge McIlraith. The Judge wassatisfied that a substituted order could be made. In this regard, the Judge noted:[11] There is no doubt from reading the affidavit and Mr Reddy's criminalhistory that he is what is referred to as a "treadmill" offender in terms ofdisqualified driving. In addition he is, of course, engaged in a business whichby its very nature required his driving. Relying on a substitute driver has puthis business at risk and Mr Reddy is under enormous pressure, as is his family.It is clear that he will suffer extreme financial hardship if he is furtherdisqualified and his business is at risk.[12] The public interest in the matter calls for consideration. I accept whatMr Clee submits which is that the public interest is not to imposedisqualification and it is preferable to allow Mr Reddy to find a path towardslegal driving and maintaining his business.[5] The Judge therefore substituted disqualification for a community-basedsentence, namely 100 hours community work.Evidence[6] Mr Reddy tendered in support of his appeal:(a) An affidavit dealing with sentencing; and(b) information in support of a s 94 application.[7] The respondent does not oppose the affidavit dealing with sentencing given thebasis of the appeal, namely counsel error. It also does not oppose the admission of thes 94 material given that the appeal involves considerations of the merits of a s 94application.[8] As the Court of Appeal stated in Orchard (helpfully cited by the respondent):4.2 In declining to receive a new victim impact statement and apsychological report concerning an appellant, the Court of Appeal inOrchard v R recently set out the test for fresh evidence on a sentenceappeal:1[23] We decline to receive either document. The question beforethis Court is whether the sentence imposed was erroneous anda different sentence should be imposed.2 Appellate processdoes not permit new evidence on a sentence appeal unless theevidence is credible, fresh and cogent:3[16] The principles for assessing the admissibility of freshevidence for appeals against conviction are now wellestablished. There is no reason why differentprinciples should be engaged where an appellantwishes to adduce fresh evidence for an appeal againstsentence. Thus, if the fresh evidence is not credible itshould not be admitted. If it is credible, anassessment needs to be made as to whether it couldnot have been presented to the sentencing Court withreasonable diligence. If the evidence is both credibleand fresh it should be admitted unless the appellate1 Orchard v R [2019] NZCA 429.2 Criminal Procedure Act 2011, s 250(2); and Tutakangahau v R [2014] NZCA 279, [2014] 2 NZLR482 at [30] – [31].3 Mark v R [2019] NZCA 121, citing Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].See also Campbell v R [2017] NZCA 623 at [15]; and Antonievic v R [2017] NZCA 87 at [39].court is satisfied it would have had no effect on thesentence. If the evidence is credible but not fresh, theappellate court should assess its strength and itspotential impact on the sentence. If the appellatecourt considers that the sentence could be manifestlyexcessive if the evidence is excluded, then it shouldbe admitted notwithstanding that it is not fresh.[9] The affidavit evidence is fresh and credible and thus admissible. The s 94material while not fresh, is plainly credible, given the conclusion reached by JudgeMcIlraith. I therefore admit it too.Counsel error?[10] Mr Reddy avers that he was not advised of the option of seeking a substitutedsentence pursuant to s 94 or that it was not otherwise possible to obtain a limitedlicence. That section states: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; 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 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 thatthe offender be disqualified from holding or obtaininga driver licence; 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.[11] The rationale for s 94 was explained in Maeva v Police as follows: 4Section 30AC of the Transport Act 1962, from which s 94 derives, was alwaysunderstood to be "remedial". It was to abstract recidivist disqualified driversfrom an unending "wheel of offending", where any further disqualificationwas likely only to engender further offending. It also came to be invokedwhen the offender could not obtain a limited licence.(Footnotes omitted)[12] It is common ground that failure to advise about s 94 would amount to anappealable error.5 However, Mr Maddox (who was Mr Reddy's counsel at the time ofsentencing) avers that he advised him that if he wanted to have no furtherdisqualification, he would have to serve a sentence of community work. He did not,however, mention the terms of s 94 or that it was the only means of obtaining a limited4 Maeva v Police HC Auckland CRI-2010-404-402, 11 March 2011 at [30]. See also Fowlds-Kotuhiv Police [2019] NZHC 985 at [18].5 Fowlds-Kotuhi v Police, above n 4.licence. Mr Maddox also said that Mr Reddy did not want to do community work andhe had a driver to help him with his employment. Given this account, the respondentsays there has been no error on the part of sentencing counsel insofar as it concernss 94.[13] Unfortunately, Mr Clee was unable to obtain instructions to cross-examineMr Maddox in time for the hearing. An adjournment was not sought to enable that tooccur. Mr Clee instead rested his case on what was not said, namely that a limitedlicence could not otherwise be sought, and this amounted to counsel error leading tosentencing error. Ms Olsen had filed a notice of application to cross -xamineMr Reddy, but I did not consider that was necessary given Mr Maddox's account wasnot able to be challenged.[14] I have come to the view that this is not a case of counsel error. In this regard,I prefer the evidence of Mr Maddox as both plausible and credible. First, Mr Maddoxis an experienced duty lawyer having practiced in that capacity since 2001. Second,his recollection was clear – Mr Reddy wanted the matter settled on the first appearanceand he made him aware of the consequences of dealing with the matter that day. Hesaid that if he wanted to avoid disqualification, he would have to serve a communitysentence. As noted, Mr Maddox was not tested about this. Third, Mr Reddy was notcategorical about what he was told or not told at the time. He could only recall thelawyer saying he would "try to get the minimum consequences for me". Fourth, andnotably in my view, on Mr Reddy's own evidence he had been relying on his father todrive until his father's health declined. There is then no appeal until after the secondoffending. This suggests that at the time of the first sentencing, the requirement todrive was not as pressing as it later became.[15] This basis for review of the sentence is therefore dismissed.Should s 94 apply?[16] Mr Clee submits that I should, in any event, apply s 94. In support of this herefers to the following observation made by Asher J in Yu:66 Yu v NZ Police HC AK CRI 2006-404-000273 at [5].[5] Given that the issue of s 94 was not addressed in the District Court, itis submitted by the Defence and accepted by the Crown that this Court has thepower to consider the matter de novo. Section 119(3) of the SummaryProceedings Act 1957 gives the High Court all the jurisdiction and authorityof the District Court, and full discretionary power to hear and receive furtherevidence. The Courts, on a consent basis, will conduct an appeal hearing inthis way: R v Police (High Court Palmerston North, AP 8/95, 9 March 1995,Greig J).[17] In that case, the District Court Judge was not asked to consider s 94. Unlikethe present case, we do not know why. But I think it can be safely assumed that AsherJ was not dealing with a situation where a defendant, as appears here, actively soughtto avoid a community-based sentence at first instance. However, I do not considerthat what Mr Reddy sought in the District Court is determinative of whether he canseek a different outcome on appeal. It remains open to Mr Reddy to challenge hissentence on the basis that it was manifestly excessive in the circumstances.7[18] As Ms Olsen submits, this Court is exercising an error based supervisoryjurisdiction on a sentencing appeal. So, this Court must identify a material error.However, that error may be either intrinsic to the decision or a result of additionalmaterial submitted on appeal, and:8... the appellate decision ultimately focuses on the end result rather than theprocess by which it was reached; and once satisfied that a different sentenceshould have been imposed, this Court will normally substitute its own opinionfor that of the sentencing judge.[19] In the present context there is no error intrinsic to the sentence. It is correct onits face. I have also dismissed counsel error. However, the central claim now made isthat while the Judge's sentence may have been correct on the information thenavailable to him, new information available to me, and the operation of s 94, revealsthat the sentence is manifestly excessive.[20] In the present context the "error" assessment thus involves two steps:(a) Whether, based on the new information, an order per s 94 would havebeen available; and, if so,7 As noted by the Court of Appeal in Kumar v R [2015] NZCA 460, "manifestly excessive" is ajudicial gloss on the threshold test stated at s 250 at [81].8 Above.(b) whether the end sentence was manifestly excessive.[21] While not literally applicable, the principle of the Sentencing Act 2002 that theleast restrictive sentence be imposed per s 8(g) resonates in this context. The rationaleunderpinning s 94 (as explained above at [11]) is also relevant and to my mind supportsa flexible approach to appeals of this kind.Section 94 assessment[22] Turning then to whether s 94 applies; it is common ground that Mr Reddyqualifies per s 94(1)(a) because he is an offender who has previously been ordered ona conviction for an offence to be disqualified from holding or obtaining a driverlicence. I turn then to assess the application by reference to the matters set out ins 94(1)(b).Circumstances of the case and of the offender[23] Save for the breach of the order not to drive while disqualified, there are noaggravating features of the offending. Mr Reddy was simply found driving andstopped and it was subsequently assessed that he was a disqualified driver, to whichhe admitted. This is a neutral factor.Effectiveness of previous orders[24] Previous orders have not deterred Mr Reddy from driving while disqualified.He is, as Judge McIlraith noted, a "treadmill" offender in terms of disqualified driving.Including the subsequent offending, he now has four convictions for driving whiledisqualified.Effect on Mr Reddy[25] As to the effect on Mr Reddy, as Judge McIlraith noted, Mr Reddy's income isdependent on his ability to drive and therefore any lengthy disqualification will havea very significant impact on him. This is a strong factor in favour of making an order.Public interest[26] As Lang J noted in Thomas v Police,9 the public interest will generally favoura period of disqualification being imposed. In the present case, however, those aspectsof the public interest must be weighed against the public interest in the retention ofgainful employment. There is here, as there was in Thomas, the public interest inensuring persons who have paid employment and who can employ others, do notneedlessly lose their livelihood. I therefore consider the public interest factor weighsin favour of Mr Reddy, rather than against him.[27] Taking all of those factors together, and notwithstanding the unfortunatepattern that has appeared to have emerged in this case, including further subsequentoffending, I am satisfied that a s 94 order would have been available to Mr Reddy hadit been sought by him at first instance.Is the sentence manifestly excessive?[28] A curious feature of this case is that Mr Reddy drove while disqualified whilesubject to the order for disqualification imposed for the present offending. He doesnot, therefore, present as an offender who should attract the mercy of this Court onappeal. But I am prepared to take my queue from Judge McIlraith who handed downa s 94 substituted sentence for the subsequent offending. Like him, I think theimposition of disqualification on Mr Reddy would have very significant impact onhim and one that should not be imposed in this case. In this regard, Ms Olsen, quiteproperly acknowledged that there would have been some merit in a s 94 application inthe present case given the impact of disqualification on him.[29] Ms Olsen, however, maintains that there has been no error to trigger thisCourt's supervisory jurisdiction and that the appellant finds himself in a predicamentof his own making. But I think there are two responses to this. First, the method bywhich a sentence is imposed is not the important inquiry.10 The important inquiry iswhether, in the end, and in light of new information, the sentence is manifestlyexcessive. Second, Mr Reddy, it appears, sought disqualification only, but got both9 Thomas v Police CRI-2010-470-15 at [29] – [30].10 Kumar v R, above n 6 at [81].disqualification and community work. So, even if his instructions to counsel arerelevant in terms of the appropriateness of sentence, he did not get what he wantedand may exercise his appeal rights to seek a different outcome.[30] On that basis, the appeal is allowed. While the Judge was correct on theinformation available to him, I am satisfied that with the benefit of the informationsupplied to me in relation to a s 94 application, a sentence of disqualification wasmanifestly excessive. The sentence of disqualification is quashed. That only leavesthe issue of community service. Mr Reddy has completed the 60 hours imposed bythe Judge. Mr Clee tentatively submitted that is enough given he has already servedfive months of the disqualification. But, given the subsequent offending, the Court'smercy has reached its limit. A further 40 hours community service remains necessaryin the circumstances of this case.[31] I wish to record that whether a sentence of disqualification is "manifestlyexcessive" will depend on the facts of each case. There can be no presumption thatthe availability of a substituted order implies that disqualification is thus excessive.[32] In any event, the order for disqualification is quashed and a further 40 hourscommunity service is imposed.