RICHARD EARNEST HOOD v NEW ZEALAND POLICE [2022] NZHC 120

RICHARD EARNEST HOOD v NEW ZEALAND POLICE [2022] NZHC 120 [8 February 2022]IN THE HIGH COURT OF NEW ZEALANDBLENHEIM REGISTRYI TE KŌTI MATUA O AOTEAROATE WAIHARAKEKE ROHECRI-2021-406-000014[2022] NZHC 120BETWEEN RICHARD EARNEST HOODAppellantAND NEW ZEALAND POLICERespondentHearing: 4 February 2022Counsel: M Zintl for the AppellantM A Harris for the RespondentJudgment: 8 February 2022JUDGMENT OF GENDALL JSolicitors:M Zintl, BlenheimM Harris, NelsonIntroduction[1] The appellant Mr Richard Hood pleaded guilty in the District Court tonumerous drug charges, namely offering to supply methamphetamine (x 29),1 offeringto sell cannabis2 and offering to supply morphine.3 In addition he pleaded guilty to thecharge of driving while suspended.4 He was sentenced on 18 October 2021 by JudgeRuth to 18 months' imprisonment, with leave to apply for home detention.5 He wasalso disqualified from driving for six months to commence from the date ofsentencing.[2] On 20 December 2021, Judge Zohrab converted the appellant's remaining termof imprisonment to 46 days of home detention. This sentence is due to expire earlyFebruary 2022.6 This means that once his sentence of home detention is finished, theappellant will still have two and a half months' left of his disqualification period.[3] Mr Hood appeals this sentence solely in relation to the disqualification fromdriving penalty. He says that Judge Ruth erred in failing to backdate the period fromwhich the disqualification began, pursuant to s 85(1) of the Land Transport Act 1998(the Act).Background to the offending[4] The drug charges are as follows:(a) Between 1 October 2020 and 1 April 2021, the appellant offered tosupply methamphetamine to approximately 29 persons by way of textmessage on 79 occasions.(b) On 18 October 2020, the appellant offered to supply morphine to oneperson.1 Misuse of Drugs Act 1975, ss 6(1)(c) and (2); maximum penalty life imprisonment.2 Section 6(1)(e); maximum penalty 8 years' imprisonment.3 Sections 6(1)(c) and (2); maximum penalty 14 years' imprisonment.4 Land Transport Act 1998, ss 32(1)(c) and (3); maximum penalty 3 months' imprisonment, or afine of $4,500; and minimum disqualification period of six months.5 Police v Hood [2021] NZDC 20539.6 Department of Corrections v Hood [2021] NZDC 25483.(c) Between 21 October 2020 and 2 January 2021, the appellant offered tosell cannabis to three persons.[5] The driving while suspended charge arose from an incident on 10 February2021. On 8 December 2020, the appellant was suspended from driving for threemonths due to excess demerit points. At about 5.25 pm on 10 February 2021 he wasseen driving a vehicle in Blenheim in breach of supervision. When spoken to Police,he admitted to doing this.District court decision[6] The appellant pleaded guilty to the charges and was sentenced in the DistrictCourt by Judge Ruth as follows:(a) In relation to the drug offending, 18 months' imprisonment wasimposed, with leave to apply for home detention.(b) In relation to the driving offence, the appellant was sentenced only tosix months' disqualification.(c) The appellant's outstanding fines of $2,708 were remitted, and hiscommunity work requirement of 75 hours was cancelled.[7] The Judge in sentencing the appellant referred to a number of documents thathad been submitted for the Court's consideration, these included a pre-sentence report,an alcohol and drug addiction report and, what he described as "most prominent", a s27 report. The Judge observed that the pre-sentence report suggested a term ofimprisonment as the appropriate sentence, but with leave to apply for home detentionso the appellant could attend a rehabilitative facility.[8] He noted too the appellant's substance use and addiction history as recorded inthe alcohol and drug report. This included social drinking (as opposed to drinking toexcess) from late teenage years and social use of cannabis for a couple of years fromthe age of 22. The Judge referred to the appellant's use of other drugs, particularly IVmethamphetamine, and his addiction and health issues, including a "needle fixation"7and tooth pain.[9] It was recorded that the appellant explained he would purchase and sellmethamphetamine to cover the cost of his own drug use, and this was the same formorphine. The Judge noted that based on evidence supplied in the s 27 report,"although [the appellant's drug dealing] was a commercial enterprise, it was anenterprise of diminishing returns heading for a net loss".8 He said the appellant was"a sole trader dealing in amounts to enable your own addiction to be maintained" andwas "motivated by that addiction rather than anything else."9 The dealing was "verymuch to cater for your own addiction".[10] It was accepted the appellant was "well regarded" in the building industry andthat "it is to be hoped that, at the far end of this process, you might be able to return toall of that." The Judge said this would "only happen if you can be free of the blight onyour life that drugs have provided".[11] The Judge found the s 27 report prepared for the appellant instructive. He notedthe appellant's upbringing, work success and pain problems as well as his difficultieswith depression, addiction and family members. The report writer had said he foundthe appellant to be "a polite and respectful person".10 The Judge accepted "withoutquestion" that factors such as the appellant's addiction and any social, cultural andeconomic deprivation were things he must take into account here.11[12] Ultimately, in relation to the drug charges, the Judge opted for a starting pointof 36 months' imprisonment. The Judge applied a full discount of 25 per cent for theappellant's guilty pleas. He factored in a 20 per cent discount for the appellant'saddiction and social factors, including those outlined in the s 27 report, noting theappellant's attempts at rehabilitation and his desire to continue doing so. The Judge7 Where the use of the needle is often as pleasurable as the drugs being injected. The report writerrecorded that this is "not an unknown phenomenon among persons who use intravenously": Policev Hood [2021] NZDC 20539 at [11].8 Police v Hood [2021] NZDC 20539 at [20]–[21].9 At [23].10 At [19].11 At [24].also granted a five per cent discount for the appellant's remorse as recorded in anapology letter. In total the discounts came to 18 months, leaving an end sentence of 18months' imprisonment. Standard and special conditions of release were imposed, thespecial conditions being:12(a) attendance at an assessment for a drug and alcohol problem;(b) attendance and completion of any counselling, treatment or programmerecommended by that assessment;(c) neither possessing, consuming nor using any alcohol or non-prescribedcontrolled drugs; and(d) residing at an approved address.[13] The Judge also remitted the appellant's fines of $2,708. In relation to themorphine dealing, the Judge sentenced the appellant to six months' imprisonment andin relation to the cannabis offending, the Judge sentenced him to three months'imprisonment. All to be served concurrently.[14] In relation to the driving charge the appellant understood the law requires aminimum six-month disqualification, but asked that it be backdated, taking intoaccount his circumstances. For this charge, the Judge said:[38] On the charge relating to the driving matter, Mr Hood, the only penaltywill be that you will be disqualified for six months from now. You arereasonably close to release and I am satisfied that disqualification from nowis appropriate. The 75 hours of community work that are outstanding are nowcancelled.[15] In so ordering, the Judge recorded his reasoning in this way:[39] My intention is that, when you are released, you will not haveoutstanding fines, outstanding community work and effectively you will havea clean slate hopefully with the view in mind that you will undertake therehabilitation aspects of the sentence that I have imposed and get back on theright track again and use the skills that you undoubtedly have.12 At [34].[16] On 20 December 2021, Judge Zohrab converted the remaining term ofimprisonment to 46 days of home detention.SubmissionsAppellant's submissions[17] The appellant submits that Judge Ruth erred in failing to backdate thedisqualification period for two main reasons.[18] First, the appellant submits that the Judge failed to provide reasons forchoosing not to backdate the disqualification period, and that this amounted to amiscarriage of justice.[19] Second, the appellant submits that the Judge's decision not to backdate thedisqualification was contrary to his stated intention, namely that the appellant finishhis sentence with a clean slate and put his building skills to use. The appellant submitsthat the additional two and a half months' of disqualification following the completionof his home detention sentence will inhibit his ability to recommence his buildingbusiness and work again.[20] Accordingly, the appellant submits that backdating the period ofdisqualification to 16 August 2021, being the date at which the appellant pleaded guiltyto the driving charge, is appropriate in the circumstances.Respondent's submissions[21] The Crown contends that there is no identifiable error in the District Court'sdecision to refuse to backdate the start date of the disqualification period. The Judgewas alive to the appellant's request to backdate the starting point, acknowledging thisin the sentencing notes,13 before going on to conclude that he was satisfieddisqualification from the sentencing date was suitable.1413 At [29].14 At [38].[22] The respondent submits the language used by the Judge is informative of hisreasoning process. First, in identifying the appellant was "reasonably close to release"from his sentence, he must have intended at least part of the disqualification period toremain operative upon the defendant's release from the sentence. Second, the words"the only penalty" indicate that the Judge intended the disqualification to apply in partbeyond the appellant's release date, in order to achieve the denunciation and deterrenceobjectives of sentencing in respect of the driving offending.Relevant law[23] Section 85 of the Land Transport Act provides discretion as to when the dateof disqualification is to run from:1585 When disqualification starts(1) If an order is made by a court under any Act disqualifying a personfrom holding or obtaining a driver licence, the period ofdisqualification starts on the day the order is made unless the courtotherwise directs or that Act otherwise provides.Approach to appeal[24] This appeal is brought under s 250 of the Criminal Procedure Act 2011. Underthis provision, an appeal against sentence is an appeal against a discretion and mustonly be allowed if the Court is satisfied that, for any reason, there was an error in thesentence imposed and a different sentence should have been imposed.16 The Courtmust dismiss the appeal in any other case.17 The focus is on the final sentence andwhether that was in the available range, rather than the exact process by which it wasreached.18 An appellate court will not intervene unless a sentence was outside the rangeavailable to the sentencing Judge.1915 Emphasis added.16 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].17 Criminal Procedure Act 2011, s 250(3).18 Ripia v R [2011] NZCA 101 at [15].19 At [36].[25] For the appeal to be successful in this case the appellant must show that theJudge erred in failing to exercise his discretion to backdate the start date of thedisqualification, so that the final sentence imposed was wrong.DiscussionDecision not to backdate the disqualification period[26] The Court certainly has the ability to backdate a period of disqualification.20The wording of the section directs that a disqualification period begins on the day theorder is made "unless the court otherwise directs or [the prescribing] Act otherwiseprovides."21 As Mander J observed in Neho v Police, "[i]t is now well established thata period of disqualification can be backdated."22 In Edwards v Police Venning J said:23The wording is unambiguous. The Court has an unfettered discretion as to thedate the disqualification is to run from. The Court may "otherwise direct" theperiod of disqualification be backdated or commence on a future date.[27] Thus the default position is that the order begins on the day the order is made,which is however subject to the Court's "unfettered discretion" to begin thedisqualification at another date, either in the future or backdated. The purposes andprinciples of sentencing, of course, continue to apply to the exercise of a discretionunder s 85(1).[28] Mr Zintl for the appellant refers to a number of cases where the Court hasbackdated a period of disqualification on appeal. The authorities, however,demonstrate that where a disqualification is backdated by the Court it is on the basisthat it would be unfairly prejudicial to the appellant not to do so, usually where theappellant has effectively already served the disqualification or there has been somesort of procedural error affecting the appellant.[29] In Edwards, for instance, Venning J noted that any injustice that arose from theappellant in that case being again convicted and disqualified (disqualification being20 Edwards v Police [2012] NZHC 1350; and Neho v Police [2016] NZHC 1290.21 Land Transport Act 1998, s 85(1).22 Neho v Police [2016] NZHC 1290 at [24].23 Edwards v Police at [26].mandatory under the Act) could be avoided by means of back-dating the period ofdisqualification by dint of s 85(1).24 Similarly, in Police v Smith (Matthew), Asher Jconsidered that the Court might utilise s 85(1) as a means of avoiding the defendantin that case unjustly receiving double punishment (disqualification being mandatoryunder the Act).25 Ultimately, the Judge rejected that option since there would be "gravedifficulties" in applying essentially a retrospective period of disqualification, such asthe fact the defendant would have been driving over past months while retrospectivelydisqualified.26[30] In Oldfield v Police the appellant pleaded guilty to driving with excess breathalcohol causing injury and was disqualified from driving for 12 months.27 However,the case against the appellant had been subject to prosecutorial delays, and theappellant was not sentenced until 14 months after his first appearance, during whichtime the appellant had been subject to a bail condition that considerably restricted hisdriving.28 On this basis the Judge backdated the disqualification by four months.29[31] In Mulligan v Police the appellant successfully appealed an order of indefinitedisqualification.30 The original sentence was substituted with an alcohol interlocksentence, which attaches a mandatory 28-day disqualification period. The appellanthad been disqualified for five months by the time the appeal was heard, so the Judgebackdated the mandatory disqualification by 28 days so that it was effectively servedduring the indefinite disqualification period initially imposed.31[32] In Moki, Doogue J observed that the two cases above in which adisqualification was backdated, namely Oldfield and Mulligan, "involve someprocedural defect or abnormality such that backdating is warranted to avoid excessivepunishment."3224 At [12].25 Police v Smith (Matthew) [2012] NZHC 2346, [2012] NZAR 965, 973.26 At 973.27 Oldfield v Police [2013] NZHC 3206.28 At [22].29 At [22].30 Mulligan v Police [2019] NZHC 145.31 At [22].32 Moki v Police [2019] NZHC 2393 at [19].[33] The authorities show it may also be appropriate to backdate a disqualificationperiod if the defendant had been prevented from driving due to strict bail conditionson the charge the disqualification applied to, so that they served what was effectivelya disqualification. In Prowse v Police, Hinton J did not consider there to be any basisfor backdating the disqualification in that case. However, the Judge described an"obvious example" where backdating a disqualification period may be appropriate:33[27] The obvious example of where a Court may direct that a period ofdisqualification be back-dated is where a person was on bail prior to thesentencing and a condition of the bail was that they not drive. Assuming theycomplied with that condition, the Court might reasonably back-date thedisqualification to some extent, so as not to inadvertently punish someone forlonger than was required.[34] Such an example occurred in R v Keepa.34 In that case, the appellant was onelectronically monitored (EM) bail on strict conditions which effectively amounted toa period of disqualification. Grice J agreed that the EM bail period should be takeninto account and backdated the disqualification by two months accordingly.35[35] However, in the absence of having (actually or effectively) served thedisqualification already, or some sort of procedural problem, courts have shownreluctance to backdate a disqualification period on appeal.[36] In Moki, the appellant had not driven from the date of the offending becauseshe was under the mistaken impression she was not allowed to.36 The Judge found noerror in the sentencing Judge's decision to refuse to exercise his discretion to backdatethe disqualification period.37 The refusal was considered appropriate since the Judgewas balancing the need to punish the appellant in that case (who was a repeat offender)while also imposing the least restrictive sentence in the circumstances.38[37] The facts in Reid v Police are similar to those in the present case, although inthat case the appellant did have a driving-related criminal history.39 There, the33 Prowse v Police [2019] NZHC 307.34 R v Keepa [2019] NZHC 3042.35 At [33].36 Moki v Police [20].37 At [22].38 At [21].39 Reid v Police [2021] NZHC 529.appellant had been sentenced to nine months' imprisonment on charges that wereunrelated to a driving charge. The only penalty imposed on the driving charge was asix-month disqualification commencing on the day of sentencing. The sentencingJudge refused to backdate the disqualification period to take into account time theappellant had been unable to drive while remanded in custody awaiting sentencing.Isac J upheld the Judge's refusal to backdate the disqualification period, finding noidentifiable error in the approach taken by the sentencing Judge in the exercise of theirdiscretion.40[38] The respondent submits that it would not be appropriate for a Court to backdatea disqualification period such that it would be entirely subsumed by time spent incustody on unrelated charges. Though in Oldfield Andrews J backdated thedisqualification by four months, he refused to backdate it to a point where there wouldbe nothing left to serve, stating "I cannot accept that it would be appropriate tobackdate [the disqualification] to such an extent that there is virtually no period ofdisqualification left".41[39] Indeed, the respondent submits that it will be appropriate for a Court to refuseto backdate a disqualification period to ensure that some effect is felt by the defendantbeyond a period of imprisonment, particularly when the time spent in custody is for asentence on distinct and unrelated charges.[40] The respondent's contention is supported by authority. In Prowse v Police,Hinton J noted it would be appropriate for a sentencing court to future-date adisqualification period if the person is serving a sentence of imprisonment.42 Similarly,in Lester v Police the Court on appeal upheld the sentencing Judge's decision to extendthe disqualification period from the minimum period of 12 months to 18 months, toaccount for the fact that the first six months of the disqualification period would elapsewhile serving imprisonment on a range of separate charges.4340 At [53].41 Oldfield, above n XX, at [22].42 Prowse v Police [2019] NZHC 307 at [28].43 Lester v Police at [31]–[35].[41] The fact the Judge recorded that the defendant was "reasonably close torelease" means he would have been aware that commencing the disqualification onthe date of sentencing would mean that the disqualification would be in place upon theappellant's release, with only part of it having elapsed while the appellant carried outhis remaining detention.44 The respondent submits that in referring to the six-monthdisqualification as "the only penalty", the Judge intended for the disqualificationperiod to apply in part beyond the defendant's release date.45[42] I accept this argument. If the Judge had acceded to the appellant's request tobackdate the disqualification period so that it would run concurrently to hisimprisonment, this would have amounted affectively to a conviction and discharge.This would have meant essentially that the appellant incurred no penalty orconsequence for the quite separate driving offending. This would have beeninconsistent with the legislative intent behind a mandatory disqualification period andwould arguably fail to meet the denunciation and deterrence principles of sentencing.46[43] The authorities demonstrate the utility of s 85 in appropriate circumstances,particularly where to refuse to backdate the disqualification would result in an injusticeto the appellant. The only authorities where a Court has backdated the start date of adisqualification period on appeal are Keepa, Oldfield and Mulligan. None of thesecases involved the Court finding an error in the sentencing Judge's exercise of itsdiscretion under s 85(1).[44] Ultimately the decision whether to backdate a period of disqualification is amatter of discretion. The appropriateness of doing so depends on the particularcircumstances of the case before the sentencing Judge, and that Judge's best judgment.[45] The test for a successful appeal is not whether the appeal court would havereached a different decision had the matter come before it at first instance, but ratherwhether the sentencing Judge erred in failing to properly exercise his discretion. InTutakangahau v R, the Court of Appeal noted that "the appellate court does not just44 Police v Hood [2021] NZDC 20539 at [38].45 At [38].46 Land Transport Act, s 32(3)(b); and Sentencing Act, s 7(1)(f) and (g).start afresh or simply substitute its own opinion for that of the original sentence".47The appeal court "will not intervene where the sentence is within the range that canproperly be justified by accepted sentencing principles".48 In Palmer v R the Court ofAppeal noted that "it can be very difficult in a marginal case to articulate reasons forpreferring one approach to another. In consequence, the margin of appreciationextended to sentencing judges is usually significant."49[46] In my view, there was no error in the sentencing Judge's decision not tobackdate the disqualification period here.[47] The Judge did not fail to provide reasons for choosing not to backdate thedisqualification period. He was aware he had the authority to backdate thedisqualification period to an earlier date and specifically turned his mind to the back-dating request from the appellant.50 The Judge was aware that the appellant was"reasonably close to release" at the date the order was made and consequentlytherefore that the disqualification period would extend beyond the appellant'srelease.51 Nevertheless, at sentencing, the Judge expressly stated that the appellantwould be disqualified for six months "from now" and that he was "satisfied thatdisqualification from now is appropriate."52 Though not stated explicitly, in referringto the disqualification as "the only penalty" for the driving charge, and knowing thatit would continue beyond the appellant's release, the Judge clearly intended that somesort of penalty would remain for the driving offending independently of and beyondthat incurred for the drug-related offending.53 From this there is no doubt as I see itthat the decision not to backdate the disqualification to begin at an earlier date wasconsidered and intentional.[48] It is also not correct to say that the Judge's decision not to backdate thedisqualification period was contrary to his stated intention, that is that the appellanthave a clean slate upon release. It must first be acknowledged that the Judge did not47 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 [30].48 At [36].49 Palmer v R [2016] NZCA 541 [16]–[19].50 Police v Hood [29].51 At [38].52 At [38].53 At [38].promise an entirely clean slate, but rather said "effectively you will have a cleanslate".54 As a preliminary consideration, this clearly allows for some penaltyoutstanding upon release. Moreover, this comment was made specifically in relationto the Judge's decision to wipe the appellant's outstanding fines and cancel hisremaining community work. In so doing, the Judge clearly desired that the appellantupon his release should be unencumbered by these. However, despite this the Judgeimposed a disqualification which he knew would continue beyond the appellant'srelease. In my view it needs to be accepted that the Judge considered this struck anappropriate and acceptable balance between a desire to allow the appellant torecommence his building business while achieving the legislative intention of therebeing some penalty for the appellant's driving offending. In terms of what would beoutstanding upon the appellant's release, this outcome gave the appellant a fresh startupon which to recommence his building business, while ensuring there was somepenalty for the driving offending, the disqualification being "the only penalty".[49] The disqualification period imposed by the Judge too was certainly within therange permitted by the legislation. Indeed, it was entirely open to the Judgealternatively to future-date the period of disqualification to begin from the date of theappellant's release from imprisonment or home detention.55 The fact the Judge chosenot to do so, but instead opted to begin the disqualification from the date of sentencing,accorded both with the default position under the Act that the disqualification beginsfrom the date the order is made as well as the goal of ensuring that someone isn'tdisqualified for longer than is reasonably necessary.56 Meanwhile an overlapping butcontinuing disqualification beyond the appellant's detention meant there was someindependent penalty for the separate and unrelated offending, as envisaged by theinclusion of a minimum disqualification under the Act.Conclusion[50] To recap, Section 85(1) of the Act provides that a period of disqualificationstarts from the day of sentencing unless the Judge directs otherwise. The decision54 At [39].55 This would have reflected that the disqualification was for a separate and unrelated piece ofoffending, that of driving while suspended.56 Sentencing Act 2002, s 8(g); and see Hitchens v R CA380/03, 25 March 2004 at [10].whether to backdate a period of disqualification is a matter of discretion for thesentencing Judge. The appropriateness of doing so depends on the particularcircumstances of the case before the sentencing Judge.[51] No discernible error occurred here in the sentencing Judge's approach. TheJudge clearly turned his mind to the request and opted not to exercise his discretion tobackdate the disqualification, in the knowledge that the disqualification period wouldextend beyond the appellant's release. It is acknowledged that the appellant hasobviously suffered greatly as a result of his addiction problems. While the Judgeexpressed the wish that the appellant have "essentially a blank slate" upon hisrelease to allow him to rebuild his building business and begin contributing to societyagain, it appears that with his outstanding fines wiped and remaining community workcancelled, the Judge considered potentially a two-and-a-half month period ofdisqualification after the appellant's release would be appropriate. This was clearlywithin an appropriate range. I see no identifiable error in the Judge's approach or theexercise of his discretion here.Result[52] For all these reasons this appeal is dismissed.Gendall J