IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE	
CRI-2019-425-10
[2019] NZHC 985	

BETWEEN	JADEN MORRIS FOWLDS-KOTUHI
Appellant	
AND	NEW ZEALAND POLICE
Respondent	

Hearing:	6 May 2019	
Appearances:	P Noorland for Appellant
S McKenzie for Respondent	
Judgment:	8 May 2019	

JUDGMENT OF MANDER J

[1]	The appellant, Jaden Fowlds-Kotuhi, was sentenced to 100 hours’ community work on a charge of driving while disqualified, being his third or subsequent offence. He was disqualified for 13 months. He appeals the disqualification on the basis that he was not provided the opportunity of applying under s 94 of the Land Transport Act 1998 (the Act) to have a community-based sentence imposed in lieu of a further period of disqualification.

Factual background

[2]	On 14 April last year, Mr Fowlds-Kotuhi was suspended from driving due to the accumulation of demerit points. A month later, on 14 May, in the early hours of the morning, after choosing to drive home from  work, he  was  stopped by police. Mr Fowlds-Kotuhi acknowledged that he should not have been driving.

FOWLDS-KOTUHI v NEW ZEALAND POLICE [2019] NZHC 985 [8 May 2019]

[3]	At the time he was stopped, the appellant was working on a dairy farm approximately 20 km from his residence. The job did not come with onsite accommodation and he was required to commute. Initially, the appellant had biked to work if he could not make other arrangements. However, this took a significant amount of time and required him to negotiate rural highways during the hours of darkness. His normal working hours were between 4.30 am and 8.00-9.00 pm heading into the winter period. In explanation for his breach, Mr Fowlds-Kotuhi stated that he was not able to get a ride. He stated he had just finished a long shift working on the tractors on the farm and had been disking and preparing silage.

[4]	When Mr Fowlds-Kotuhi appeared before Judge Farnan in the Invercargill District Court on 31 May, he entered a guilty plea and was sentenced the same day. He saw the duty lawyer but did not seek to engage his own lawyer or apply for legal aid. As a result of the disqualification, Mr Fowlds-Kotuhi was unable to continue in his employment because he simply did not have the means of getting to and from his work on the dairy farm.

[5]	The appellant has since secured employment with a firm in Queenstown. His role to date has been a casual one, which has involved him assisting in the firm’s yard. That casual yard work has come to an end, but his employer has offered to engage him on a fulltime basis as a driver. This is a position Mr Fowlds-Kotuhi has previously held with this particular company. Obviously, the appellant needs a driver’s licence  to be able to take up that opportunity. The offer of fulltime employment caused him to seek legal advice regarding the possibility of obtaining a limited licence.

Extension of time for filing appeal

[6]	The appeal was filed out of time. When Mr Fowlds-Kotuhi sought legal advice regarding a limited licence, he was informed that he was not eligible to make such an application because the present offending occurred four months before the expiration of the five year period from his conviction for a specified offence.1 As a result, attention turned to why a s 94 application had not been made at the time of his sentencing in May 2018.

1	Land Transport Act, s 103(2)(d).

[7]	The Crown does not oppose an extension of time. It is not prejudiced by the lateness of the appeal, and I accept it should be determined on its merits. Leave is granted accordingly.

Further evidence

[8]	In support of the sentence appeal, leave was sought to admit affidavit evidence from the appellant himself and from his employer, Mr Simon Spark. Mr Fowlds- Kotuhi’s evidence relates to his situation at the time of his offending, what occurred when he attended Court and was sentenced, the loss of his employment and the opportunity he now has to take up a fulltime role with the firm in Queenstown.      Mr Sparks’ evidence provides details of the appellant’s previous and current employment. He deposes to Mr Fowlds-Kotuhi’s part-time role in the yard no longer being available as a result of the busy events season in Queenstown coming to an end, but that a fulltime vacancy as a truck driver could be filled by Mr Fowlds-Kotuhi but for his disqualification which expires on 15 August 2019.

[9]	Mr Sparks’ evidence largely takes the form of updating information, the admission of which is not objectionable. Mr Fowlds-Kotuhi’s evidence insofar as it relates to his current position is of a similar nature. However, there are aspects of his affidavit which relate to the offending itself and his circumstances at that time and is therefore not fresh, it being evidence that was available at the time of his sentencing. That said, the Crown had no objection and I consider the interests of justice favour its admission in the circumstances of this case.

The grounds of appeal

[10]	The appeal against the imposition of the disqualification is based on the proposition that Mr Fowlds-Kotuhi was not advised by the duty lawyer at the time of his sentencing to pursue a s 94 application, and that as a result his sentencing miscarried. Ms Noorland, who appeared on behalf of Mr Fowlds-Kotuhi, submitted Mr Fowlds-Kotuhi was an appropriate candidate to make a successful application and that the disqualification should have been substituted with a community-based sentence.

The approach to a sentence appeal

[11]	In order to succeed on an appeal from a sentence imposed by the District Court, this Court must be satisfied that there is an error in the sentence imposed and that a different sentence should be imposed.2 In Tutakangahau v R, the Court of Appeal confirmed that the approach to be taken to sentence appeals under the Criminal Procedure Act 2011 is the same that prevailed under its predecessor, the Summary Proceedings Act 1957.3 Not every error in a sentence will provide the basis for a successful appeal. The appeal Court does not start afresh, nor simply substitute its own view for that of the original sentencer. Rather, the appellant must show that there has been a material error, in which case the Court may then form its own view as to the appropriate sentence.4

Has there been a material error?

[12]	Mr Fowlds-Kotuhi’s evidence is that he was not provided with advice by the duty lawyer about the possibility of making a s 94 application. Ms McKenzie, who appeared on behalf of the Crown, observed that while Mr Fowlds-Kotuhi has deposed to that fact no evidence has been obtained from the lawyer regarding what transpired at sentencing and the content of his/her advice to the appellant at that time. That was no doubt raised because Mr Fowlds-Kotuhi’s appeal may be construed as essentially raising an issue of counsel incompetence. The Crown queried whether I would be prepared to determine the appeal in the absence of hearing from the duty lawyer. If I was, Ms McKenzie invited me to determine the appeal on the basis of the merits of the s 94 application without opposition.

[13]	I do not consider the issue that arises in the present case is strictly one of counsel incompetence. The role of the duty lawyer is a busy one, requiring that practitioner to attend on a series of defendants appearing in a criminal list. As was acknowledged by Ms Noorland, any oversight in not traversing the possibility of a s
94  application  during  the  course  of  a  brief  consultation  with  the  defendant  is

2	Criminal Procedure Act 2011, s 250(2).
3	Summary Proceedings Act 1957, s 121 (repealed).
4	Tutakangahau v R [2014] NZCA 279 at [26]-[36].

unsurprising when regard is had to the workload and brief contact that duty lawyers have with defendants.

[14]	Mr Fowlds-Kotuhi’s evidence was that during his meeting with the duty lawyer, he accepted he had driven while suspended and agreed that he was guilty. The appellant informed the duty lawyer that at the time he was working as a dairy farmer and that his suspension had already been causing him difficulties. The duty lawyer advised him he would be disqualified for at least one year and that a community-based sentence was likely. Mr Fowlds-Kotuhi accepted that he did not wish to instruct a lawyer or make a legal aid application. He understood the duty lawyer had outlined all of the options available to him and he did not think he required any further assistance. No application was made to Judge Farnan pursuant to s 94 of the Act. It follows that no reference is made to such a possibility in the sentencing Judge’s notes on sentencing.

[15]	The authorities that deal with questions of counsel competence are, almost exclusively, associated with appeals against conviction. The leading authority is that of the Supreme Court, Sungsuwan v R.5 Ultimately, the appropriate enquiry will not turn on the performance of counsel but whether the verdict is unsafe because of some deficiency, however caused. The essence of the Supreme Court’s approach to such issues was summarised in the following way:

[70] ...while the ultimate question is whether justice has miscarried, consideration of whether there was in fact an error or irregularity on the part of counsel, and whether there is a real risk it affected the outcome, generally will be an appropriate approach. If the matter could not have affected the outcome any further scrutiny of counsel's conduct will be unnecessary. But whatever approach is taken, it must remain open for an appellate court to ensure justice where there is real concern for the safety of a verdict as a result of the conduct of counsel even though, in the circumstances at the time, that conduct may have met the objectively reasonable standard of competence.

[16]	In Quinlivan v Police, Moore J accepted that the comments in Sungsuwan are broadly applicable where there is a challenge to a sentence on the grounds that the actions or omissions of counsel created a real risk of affecting the outcome on sentence.6 It is tolerably clear from the way Mr Fowlds-Kotuhi’s sentencing

5	Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730.
6	Quinlivan v Police [2014] NZHC 3163 at [34].

proceeded that the possibility of making an application under s 94 of the Act was not raised with the sentencing Court despite the opportunity it provides to an offender to break the cycle of recidivism. The appellant himself was not aware of that possible sentencing option.

[17]	Whether the duty lawyer’s actions were reasonable in the circumstances of his brief engagement with Mr Fowlds-Kotuhi in not canvassing with him the possibility of a s 94 application is not the critical question. Rather, the question devolves to whether that omission raises a real concern regarding the sentencing process and in particular the appropriateness of the disqualification in the absence of the sentencing Court being afforded the opportunity to consider whether the appellant was a suitable candidate to have the disqualification period substituted with a community-based sentence. The answer to that question turns on the merits of such an application.

Land Transport Act 1998, s 94

[18]	Section 94 of the Act permits the Court, in circumstances where it considers it appropriate, to impose a community-based sentence in preference to ordering a further period of disqualification. In Maeva v Police, the rationale for providing a sentencing Court with that option was explained in the following terms:7
Section 30AC of the Transport Act 1962, from which s 94 derives, was always understood to be “remedial”. It was to abstract recidivist disqualified drivers from an unending “wheel of offending”, where any further disqualification was likely only to engender further offending. It also came to be invoked when the offender could not obtain a limited licence.

(Footnotes omitted)

[19]	A number of factors are required to be established before an application can succeed. The offender must have previously been subject to a disqualification and the Court must decide that disqualification is inappropriate after having regard to the following factors:8

7	Maeva v Police HC Auckland CRI-2010-404-402, 11 March 2011 at [30].
8	Land Transport Act 1998, s 94(1)(b).

(a)	the circumstances of the offender;

(b)	the effectiveness of a previous order of disqualification;

(c)	the likely effect on the offender of a further order of disqualification; and

(d)	the interests of the public.

[20]	The criteria set out in s 94 enables the sentencing Judge to have regard to a wide range of relevant considerations to assess whether it is appropriate to impose a community-based sentence in substitution of a further order of disqualification.9

The appellant’s history of disqualification

[21]	Mr Fowlds-Kotuhi has a regrettably lengthy record of disqualifications and suspensions of his licence. He received his first three month period of suspension due to excess demerit points in November 2004. A year later, in December 2005, he was further suspended and again in May 2007. Another three month suspension was incurred in March 2012. More recently, as a result of excess demerit points, he received a three month suspension both in March 2017 and April 2018.

[22]	Set against that background are some six convictions which have resulted in periods of disqualification. That offending started in his youth when, in May 2003, Mr Fowlds-Kotuhi was convicted of excess breath alcohol and made the subject of a four month disqualification order. He did not comply with the disqualification and was convicted in July of that year of driving while disqualified, in respect of which a further six months’ disqualification was imposed, coupled with 60 hours’ community work. In January 2005, he was convicted of driving while suspended and a six month disqualification imposed. There then followed a lengthy gap before Mr Fowlds- Kotuhi was convicted in June 2013 of dangerous driving, for which he was disqualified for six months and ordered to undertake 40 hours’ community work. It is this specified offence which, by only a matter of four months, prevented him from

9	See Police v Body [2013] NZHC 1586 at [6]-[7].

applying for a limited licence, the conviction having been entered within the five year period from his last conviction in May 2018 for driving while suspended (third or subsequent offence), for which he received the disqualification the subject of this appeal. Mr Fowlds-Kotuhi was also convicted in December of 2013 of driving while disqualified (being a third or subsequent offence) and was disqualified for a further year. Three months’ community detention and 100 hours’ community work were also imposed.

[23]	The demerit points that have led to the suspension of his licence result from a number of different infringements. These include driving unlicensed motor vehicles but also include infringements for speeding. As previously noted, court-imposed disqualifications include one conviction for dangerous driving and driving with excess breath alcohol when he was a youth. Overall, despite those convictions and the demerit points incurred for speeding, it is not apparent that disqualification is required in order to provide protection to the public. In Mr Fowlds-Kotuhi’s circumstances the suspensions appear to have served a largely punitive purpose.

[24]	It is difficult to judge the effectiveness or otherwise of previous orders of disqualification that have been imposed on the appellant. It appears he has sought to comply with previous disqualifications. On the other hand, the accumulation of five convictions for driving while suspended or disqualified between 2003 and 2018 would indicate a poor record of compliance, although there is a notable eight year gap between 2005 and 2013.

[25]	The current information shows Mr Fowlds-Kotuhi has, at least recently, sought to comply with his obligations. After his most recent disqualification he could not get to his work on the dairy farm on a regular basis and it cost him his job. His inability to drive rendered him ineligible for positions requiring a driver’s licence. As a result, he has not been able to sustain an income, and Mr Fowlds-Kotuhi has deposed that this has resulted in him getting into financial difficulties and debt. His compliance with the disqualification order over what is now some nine months has been at considerable cost to the appellant.  That  cost is likely to be aggravated  further  if  Mr Fowlds-Kotuhi is not provided with the opportunity of taking up the fulltime position which has been offered to him by his present employer.

[26]	Mr Spark has provided detailed information about Mr Fowlds-Kotuhi’s previous employment with his firm and the availability of the present position. During Mr Fowlds-Kotuhi’s employment with Mr Spark he has incurred at least three suspensions due to demerits and at least two disqualifications. Mr Spark advised in his affidavit that he has spoken to the appellant about improving his decision-making when driving. He was able to keep Mr Fowlds-Kotuhi on during his 2013 disqualification period because there was work in the yard for him to complete, and the firm was not short of drivers. He was also kept on in 2017, when Mr Fowlds- Kotuhi’s licence was suspended again due to demerit points, but not thereafter.

[27]	In October 2018, Mr Spark made contact with Mr Fowlds-Kotuhi who advised him that he was disqualified, unemployed and not earning a steady income. Because Mr Spark needed someone capable of running the yard and provide assistance during the events season in Queenstown, Mr Fowlds-Kotuhi was taken on. The role was a casual one and the hourly rate less than that of a fulltime driver. The events season has now come to an end and Mr Fowlds-Kotuhi’s position has become redundant.

[28]	Mr Spark vouches for the appellant’s value as a worker, particularly in respect of his firm’s business, about which Mr Fowlds-Kotuhi is highly knowledgeable. Despite having been a valued member of the workforce over a number of years and an employee who has discharged various roles and responsibilities, if Mr Fowlds-Kotuhi is unable to drive he is of no real further use to the company.  Mr Spark considers  Mr Fowlds-Kotuhi has made progress as a person and employee, and he attests to the detrimental  effects  on  him  when  he  is  unemployed.  Mr  Spark  has  provided  Mr Fowlds-Kotuhi with some support, including accommodation as part of his job, in an attempt to provide “stability and focus to keep him out of the legal system”.

[29]	Mr Spark has expressed concern about the appellant. He is unable to keep him on as a casual employee but could retain him as a fulltime employee as a driver. However, if he remains disqualified until August 2019, Mr Sparks would have to let Mr Fowlds-Kotuhi go, and he is worried the appellant will fall back into a cycle of offending. Mr Spark deposes that it is not financially viable to continue to employ Mr Fowlds-Kotuhi in the absence of non-driving work being available, and his need to employ a driver as soon as possible to relieve current drivers’ workloads.

[30]	As a truck driver, Mr Fowlds-Kotuhi holds a number of endorsements to his licence which enable him to drive various trucks and trailers. He has commenced a defensive driving course which is funded by his current employer. Mr Sparks’ firm has put in place steps to monitor and improve their employees’ driving. Those steps include “Eroad capability” in their trucks to alert drivers and its office manager of speed limit breaches. It has installed speed limiters in its trucks which limit their speed to 90 kilometres per hour and signage for public feedback on driver behaviour. It is submitted that any instances of speeding will be recorded and reported back to the company.

Conclusion regarding s 94 application

[31]	Mr Fowlds-Kotuhi is 34 years of age and presently has the opportunity through prospective employment to break the cycle which has seen him regularly appear before the Court for disqualification and suspension breaches. I accept that the public interest favours providing him with the opportunity to remain employed, be able to financially support himself, and to lawfully drive. Mr Fowlds-Kotuhi has completed nine months of his present disqualification which will end in August. His opportunity for fulltime employment is in jeopardy if he cannot immediately take up a driving role with the firm that has sought to assist him with his difficulties. It is apparent from Mr Sparks’ affidavit that Mr Fowlds-Kotuhi has a part to play within the business and is appropriately qualified to carry out a constructive role for his employer as a driver. I accept that these employment and personal welfare considerations strongly favour a s 94 application being granted.

[32]	Ms Noorland drew my attention to numerous cases where such considerations, in particular the loss of employment, have influenced the Court to exercise its discretion under s 94 of the Act.10 I accept Ms Noorland’s submission that it is apparent that Mr Fowlds-Kotuhi has reached a point in his life where he appears to

10 Yu v Police HC Auckland CRI-2006-404-273, 10 November 2006; Grimwood v Ministry of Transport HC Christchurch AP184/91, 16 August 1991; Chapman v Police HC Christchurch AP55/94, 10 March 1994; Peake v Ministry of Transport HC Dunedin AP86/91, 17 September 1991; Peaufa v Ministry of Transport and Police HC Christchurch AP19/92, 13 February 1992; Crosby v Ministry of Transport HC Hamilton AP123/92, 13 October 1992.

value the importance of having and, importantly, retaining his driver’s licence. It is central to him being able to maintain a livelihood.

[33]	The current disqualification has resulted from driving while suspended which was not itself aggravated by any driver fault, and while there is some background to the appellant’s past offending which raise safety concerns, his last conviction of that type is now of some five years vintage. In terms of infringement points for excessive speed, I am satisfied that the steps taken by his employer should mitigate that risk. In any event, Mr Fowlds-Kotuhi must by now be well aware that speeding infringements or driving offences that carry the risk of disqualification or suspension will result in severe consequences for him. He could expect no further latitude from the Court. Any further revocation of his licence will likely result in the termination of his employment with Mr Spark’s company.

Conclusion

[34]	An issue that I raised with Ms Noorland was a concern that the circumstances relied upon for the purposes of the appeal and in support of a successful s 94 application arose after Mr Fowlds-Kotuhi was sentenced and the disqualification imposed in May 2018. The merits of his application before me were based on matters which could not have been relied upon before the sentencing Court had a s 94 application been made, as it is argued it should have been, at the time the appellant was sentenced before Judge Farnan.

[35]	However, I am content to proceed on the basis that the identified error is the failure to raise the issue of s 94 before the sentencing Court and allow the Judge the opportunity to consider that possibility on the basis of the circumstances as they then stood. While less compelling, the fact remained that Mr Fowlds-Kotuhi had employment on a dairy farm which required him to travel a considerable distance and that, because of the rural location, public transport was unavailable to him. The potential effects  of  disqualification  are  borne  out  by  what  actually  happened. Mr Fowlds-Kotuhi lost his employment and that resulted in ongoing financial difficulties.

[36]	I am satisfied therefore that there was at the time of sentencing a proper basis, at least, for the application to be made and possibly for the disqualification to be substituted with a community-based sentence. It is difficult to assess what the outcome may have been, but such an application was not by any means unrealistic having regard to Mr Fowlds-Kotuhi’s history and his personal circumstances. An error having been identified, it has fallen to me, as the appeal Judge, to consider the merits of the s 94 application on the basis of the current information to hand.

[37]	For the reasons canvassed, I consider that, on balance, the s 94 application should be granted because both Mr Fowlds-Kotuhi’s rehabilitation and the wider public interest favour him being afforded the opportunity to maintain his employment, to support himself, and avoid the cycle of disqualification and breach which may follow should he be unable to take up the opportunity which has been provided to him by his current employer.

[38]	Both his conviction and the sentence of community work imposed for driving while suspended will remain in place. The appellant has already served some nine months of his disqualification without breach. Taking into account the time that has elapsed since the filing of Ms Noorland’s submissions, I consider an appropriate amount of community work to be imposed in substitution of the balance of the disqualification period to be one of 30 hours, and that will be the substituted sentence.

Result

[39]	The order disqualifying Mr Fowlds-Kotuhi for a period of 13 months is quashed. Pursuant to s 94 of the Act, I substitute in its place a sentence of 30 hours’ community work which is to be served in addition to the sentence of 100 hours’ community work imposed at the time of the appellant’s conviction in March last year for driving while suspended (being a third or subsequent offence).

Solicitors:
Todd & Walker Law, Queenstown Preston Russell Law, Invercargill