RYAN v NEW ZEALAND POLICE [2021] NZHC 2474

RYAN v NEW ZEALAND POLICE [2021] NZHC 2474 [20 September 2021]IN THE HIGH COURT OF NEW ZEALANDINVERCARGILL REGISTRYI TE KŌTI MATUA O AOTEAROAWAIHŌPAI ROHECRI-2021-425-000015[2021] NZHC 2474BETWEEN TASMAN JAMES RYANAppellantAND NEW ZEALAND POLICERespondentHearing: 20 September 2021Appearances: O L Taylor for AppellantR T Nye-Wood for RespondentJudgment: 20 September 2021JUDGMENT OF DUNNINGHAM JThis judgment was delivered by me on 20 September 2021 at 4 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDateIntroduction[1] The appellant, Tasman Ryan, pleaded guilty to a charge of threatening toinjure.1 On 14 May 2021, he was sentenced by Judge Brandts-Giesen to two months'imprisonment and disqualified from driving for a period of six months.2 Mr Ryanappeals the disqualification order, saying:1 Summary Offences Act 1981, s 21(1)(a). Maximum penalty three months imprisonment.2 Police v Ryan [2021] NZDC 9429.(a) he was not on notice that such an order would be sought;(b) the Judge did not give reasons why the discretion to disqualify unders 124 Sentencing Act 2002 was exercised; and(c) in the circumstances of the case, disqualification served no sentencingpurpose.Leave to appeal out of time[2] The statutory timeframe for filing an appeal against sentence is 20 workingdays from the date of judgment appealed against.3 Mr Ryan filed his appeal on2 August 2021, approximately three weeks outside the statutory timeframe.Accordingly, leave to appeal is required.[3] In explanation of the delay, counsel advises Mr Ryan was told by his previouslawyer that he did not have any grounds to appeal.[4] The touchstone in determining an application for an extension of time is theinterests of justice in the circumstances of the case.4 The relevant factors weresummarised in R v Lee as follows:5 factors of relevance to the balancing test include the wider interests ofsociety in the finality of decisions, the strength of the proposed appeal,whether the liberty of the subject is involved, the practical utility of anyremedy sought, the extent of the impact on others affected and on theadministration of justice, and any prejudice to the Crown.Relevant considerations include the merits of the appeal and the reasons for the delay.6[5] The respondent opposes leave being granted. It is submitted there is noevidence to support the application and there is little practical utility in the remedysought. It is noted Mr Ryan was sentenced on 22 April 2021 to two years and3 Criminal Procedure Act 2011, 248(2).4 R v Knight [1998] 1 NZLR 583 (CA).5 R v Lee [2006] 3 NZLR 42 (CA) at [99], cited in Smith v R [2021] NZCA 169 at [5].6 At [108]. See also Mikus v R [2011] NZCA 298 at [26], citing R v Slavich [2008] NZCA 116 at[14].one months' imprisonment for offending on 3 November 2020. On the face of it, hewill still be serving this sentence for the duration of the disqualification sentence.[6] I accept no evidence has been filed to support the application. However, thedelay in filing the appeal is modest and a reason for the delay has been provided, albeitinformally. I consider there is more utility in allowing the appeal to proceed and toaddress its merits, given this analysis would need to be done to consider the questionof leave in any event. Accordingly, leave to appeal out of time is granted.Background[7] On 31 August 2020, the victim, a Court bailiff, attended Mr Ryan's address toexecute a warrant ordering the seizure of Mr Ryan's vehicle. Mr Ryan was not at hisaddress, but arrived shortly after the victim, and parked his vehicle behind the victim.[8] Mr Ryan confronted the victim and began to yell at him in an aggressivemanner before getting out of his vehicle. The victim informed Mr Ryan his vehiclewas being seized. Mr Ryan continued to be verbally aggressive. He then advancedtowards the victim taking his sunglasses off and clenching his fists, making the victimfear for his safety. The victim stepped back and activated his safety alarm.[9] Mr Ryan then returned to his vehicle, reversed, and then drove it towards thevictim, narrowly missing him.District Court decision[10] Judge Brandts-Giesen gave a brief decision, noting that bailiffs are officers ofthe Court and "their task is a difficult enough one without people like you reacting inthe way you did".7 He also noted Mr Ryan had previous convictions for assault and,most recently, a conviction of wounding with intent to injure. He then sentencedMr Ryan as follows:8 I sentence you to two months in prison, cumulative on your present termof imprisonment. I also disqualify you for six months from today, bearing in7 Police v Ryan, above n 2, at [2].8 At [4].mind that a motor vehicle was involved in this offence and it could be saidthat you were trying to get away.Principles on appeal[11] 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 that therehas been an error in the imposition of the sentence and that a different sentence shouldbe imposed.9 As the Court of Appeal mentioned in Tutakangahau v R quoting the lowercourt's decision, a "court will not intervene where the sentence is within the range thatcan properly be justified by accepted sentencing principles".10 It is only appropriatefor this Court to intervene and substitute its own views if the sentence being appealedis "manifestly excessive" and not justified by the relevant sentencing principles.11SubmissionsAppellant's submissions[12] Mr Ryan appeals solely against the imposition of the period of disqualificationfrom driving.[13] The first ground of appeal is the Judge erred in not giving any reasons in forexercising the discretion to disqualify under s 124 Sentencing Act nor for the lengthof disqualification ordered. Ms Taylor, for Mr Ryan, draws a comparison between thecircumstances of this case and those of Mathias v Police.12 There, the District Courtdid not give an explanation as to why the order was needed for punitive reasons or toprotect the public, in the circumstances of the case.13 Here, Mr Ryan will be in prisonfor most, if not all, of his disqualification period, so there is little, if any utility in theorder.149 Criminal Procedure Act 2011, ss 250(2) and 250(3).10 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].11 Ripia v R [2011] NZCA 101 at [15].12 Mathias v Police [2016] NZHC 959.13 At [41].14 I was advised by counsel that Mr Ryan was remanded in custody prior to being sentenced inApril 2021 to 25 months' imprisonment so he may be eligible for parole before the period ofdisqualification ends.[14] The second ground of appeal is Mr Ryan was not warned that the discretionpursuant to s 124 was going to be exercised and, therefore, he was not able to addressthe Court on that issue. Ms Taylor refers to Wright v Police where the High Court setaside a disqualification order because the appellant was not given warning that a 124order may be made and, therefore, was not given the opportunity to address the courton the issue.15Respondent's submissions[15] The respondent opposes leave to appeal being granted out of time, because thedelay in appealing is not supported by evidence and the merits of the appeal are weak.[16] Mr Nye-Wood submits the exercise of the s 124 discretion was appropriate andnot wrong in principle, in the circumstances of this case. The District Court Judgeprovided reasons for engaging s 124 when he stated "bearing in mind the motor vehiclewas involved in this offence".16 In the respondent's submission, reasons do not needto be lengthy and can be read in light of pre-sentence exchanges between the court andcounsel.17[17] However, if this Court considers the reasons given were inadequate,Mr Nye-Wood submits the appropriate approach on appeal is to consider the matterafresh. If that exercise is conducted, the respondent submits a six month period ofdisqualification is appropriate and in accordance with the principles and purposes ofsentencing. It is submitted the use of the vehicle in this case was more critical to theoffending behaviour than in Mathias, where the driver fled the scene of a burglarywith items in the boot of the car.18 Here, the respondent submits, Mr Ryan's ability todrive the vehicle directly contributed to the offending, namely, intimidating the victim.Furthermore, the sentence has utility, both to hold the offender accountable and todeter him and others from such offending. He may be eligible for parole before thedisqualification period ends and, in any event, will have to apply to have his licence15 Wright v Police [2020] NZHC 2980 at [16].16 Police v Ryan, above n 2, at [4].17 Kennedy v Ryan [2015] NZCA 257.18 Mathias v Police, above n 11.reinstated at the end of his sentence, which has an element of punitive effect on theoffender.[18] In relation the second ground of appeal, the respondent submits if it is foundthat Mr Ryan was not given the opportunity to be heard on the s 124 disqualification,the appropriate remedy is to consider the matter afresh. Again, the respondent submitsthe six month period of disqualification is appropriate.Discussion[19] Section 124 provides the court with power to disqualify offenders from drivingif a person is convicted of an offence punishable by imprisonment, not being anoffence under the Land Transport Act 1998. Relevantly, s 124(2) provides:(2) A court may exercise the power in subsection (3) if a person isconvicted of an offence referred to in subsection (1) and the court issatisfied that,—(a) the commission of the offence was facilitated by the use of amotor vehicle by the offender, whether or not the offender wasthe driver or person in charge; or(b) a motor vehicle was used by the offender, whether or not theoffender was the driver or person in charge, for the purpose offacilitating his or her flight or avoiding his or her detection orarrest after the commission of the offence.No opportunity to be heard[20] I start with whether Mr Ryan was on notice that an order of disqualificationwas sought. The legal discussion before the District Court has been provided to thisCourt. It records the prosecutor, having read the summary of facts for the Court, madethe following submission:You have his history, Sir, and I would ask the Court to consider the matter ofdisqualification in terms of sentencing. It is acknowledged however that thedefendant is a sentenced prisoner and any disqualification may well, for sixmonths or thereabouts, may well be expired before he gets out of jail, Sir.[21] In my view, Mr Ryan's counsel was on notice that a s 124 disqualification orderwas sought by the prosecution and had the opportunity to address the Court on thisissue, although it appears he did not do so. The case of Wright v Police can bedistinguished.19 There, neither the appellant nor the respondent were given warningthat a s 124 disqualification order may be made and were not afforded the opportunityto address the Court.[22] I do not consider Mr Ryan was denied his right to be heard on this matter.Disqualification under s 124 Sentencing Act 2002[23] The District Court Judge provided only cursory reasons as to why s 124 wasengaged and failed to articulate why disqualification was appropriate. I consider theJudge erred in that regard. As such, I consider the matter afresh.[24] The summary of facts records Mr Ryan "started the vehicle before proceedingto reverse and drive towards the victim who was situated out the front of the addressnarrowly missing him." This conduct may be viewed as a continuation of theintimidation of the victim by approaching him with clenched fists.20Judge Brandts-Giesen, however, took the view that Mr Ryan was attempting to fleeafter the offence,21 when he stated "it could be said that you were trying to get away."22It is not obvious from the summary of facts that the driving was an attempt to flee butI accept the threshold in s 124(2) is met on the basis the driving formed part of thethreatening behaviour and the District Court Judge had discretion to disqualifyMr Ryan from driving.[25] In Taiapa v R the Court of Appeal emphasised the loss of a licence is a way tohold an offender accountable, denounce the conduct and deter the offender and othersfrom committing similar offending.23 The Court recognised the inability to drive mayhinder an offender's rehabilitation and reintegration. It may also offend the principlethat the court must impose the least restrictive outcome that is appropriate in thecircumstances.2419 Police v Wright, above n 15.20 Under Sentencing Act, s 124(2)(a).21 Under s 124(2)(b).22 Police v Ryan, above n 2, at [4].23 Taiapa v R [2019] NZCA 524 at [28], endorsing the analysis in Mathias v Police, above n 11.24 Sentencing Act, s 8(g).[26] In my view, the imposition of the disqualification does not serve the purposeof protecting the public because for most, if not all the period of disqualification,Mr Ryan is removed from the community due to his sentence of imprisonment forother offending. Similarly, because of that factor, there is negligible impact uponMr Ryan's rehabilitation and reintegration.[27] I accept though that a period of disqualification serves the purpose ofdenouncing Mr Ryan's conduct and deterring him and others from committing similaroffending. However, the imposition of the period of disqualification must beconsidered in the totality of the sentence imposed. Mr Ryan received a period oftwo months' imprisonment after pleading guilty to the charge, when the maximumpenalty is three months' imprisonment. This was a reasonably stern sentence in anyevent.[28] In my view, the imposition of the period of disqualification was not the leastrestrictive outcome in the circumstances. The sentence of imprisonment alone issufficient to meet the relevant sentencing principles of holding the offenderaccountable for the harm done, denouncing his conduct, and deterring him and others.In the circumstances of this case, where Mr Ryan will be in custody for the majority,if not all, of the period of disqualification, there is no other practical benefit ofimposing such a sentence. Accordingly, I would not impose a sentence ofdisqualification having regard to factors relevant to the exercise of my discretion.Outcome[29] Leave to appeal out of time is granted.[30] The appeal is allowed. The sentence of six months' disqualification unders 124 is quashed.Solicitors:John K Fraser Law Ltd, InvercargillCrown Solicitor, Invercargill