IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE	
CRI-2018-412-000022
[2018] NZHC 2660	

BETWEEN	KANE STEPHEN EVANS
Appellant	
AND	NEW ZEALAND POLICE
Respondent	

Hearing:	11 October 2018	
Appearances:	L C Denton for Appellant C Ure for Respondent	
Judgment:	15 October 2018	

JUDGMENT OF GENDALL J

EVANS v NZ POLICE [2018] NZHC 2660 [15 October 2018]

Introduction

[1]	The appellant, Mr Evans pleaded guilty to one charge of driving whilst disqualified (third or subsequent) and one charge of providing false information. On 21 June 2018, Judge Turner sentenced him to six months’ community detention, imposed a fine of $1000, ordered payment of Court costs of $130, and disqualified him from holding or obtaining a driver’s licence for the minimum period of one year and one day. On the charge of providing false information he was convicted and discharged.

[2]	Mr Evans appeals his licence disqualification sentence only. He brings this appeal on the basis that, contrary to his instructions, his lawyer did not advance an argument under s 94 of the Land Transport Act 1998 whereby the disqualification would be substituted by a community-based sentence, having regard to all the circumstances prevailing in his case.

Background

[3]	On Wednesday 20 September 2017 at approximately 11am, Mr Evans, aged 21 at the time, was driving on the Omakau Chatto Creek road when he was stopped by police for a mobile breath screening test. When asked to give his details, Mr Evans provided a temporary paper driver’s licence in the name of Corey Brent Ross, and gave an address and Mr Ross’ date of birth. Mr Evans was issued two vehicle infringements in the name of Mr Ross and was told he was free to go. A short time later, inquiries established that the driver was in fact Mr Evans. He was spoken to later that day and admitted giving Mr Ross’ details, and that he was a disqualified driver.

[4]	Ms Denton, Mr Evans’ counsel for this appeal, was the duty solicitor when Mr Evans first appeared in the District Court on 26 September 2017. She spoke to Mr Evans and indicated that he should advance an application under s 94 to substitute disqualification for community work. She gave him advice on actions to take regarding a s 94 application, including appropriate licencing and securing work. At this point guilty pleas and convictions were entered, and Mr Evans was remanded on bail to 28 November 2017.

[5]	Mr Evans was then assigned a different lawyer, Russell Checketts, as his legal aid counsel for sentencing. On 9 November 2017, Mr Checketts emailed the District Court to advise that Mr Evans would not be continuing with the s 94 application. In Mr Evans’ affidavit he advises that he never instructed this. Mr Checketts says that he understood that a s 94 application was not to be pursued, and the whole focus was on keeping Mr Evans from being sentenced to a period of imprisonment. His later letter to Mr Evans dated 29 November 2017 indicated this position.

[6]	On 28 November 2017, Mr Evans’ sentencing was adjourned as no pre- sentence report had been prepared. A new date was set in early 2018, but this was changed due to a conflict of interest with the sitting Judge. Mr Evans did not appear on the revised date. He says Mr Checketts did not advise him of the new date, but  Mr Checketts says he called and left numerous messages. A warrant for Mr Evans’ arrest was issued to lie in Court. Mr Checketts wrote to Mr Evans about the warrant and advised that he would likely be put on the Court list on 29 May 2018. This did not turn out to be the case however, and Mr Evans inquired at Court to confirm the correct sentencing date, which was to be 21 June 2018.

[7]	By the time of this sentencing, Mr Evans had obtained his full driver’s licence. Mr Evans states that he saw Mr Checketts for only five minutes prior to sentencing on 21 June 2018 in the waiting room at the Alexandra District Court. Mr Evans showed Mr Checketts his full licence. Mr Evans claims that Mr Checketts said something to the effect that “there is a possibility you won’t keep your licence”. Mr Checketts refutes this, however. Mr Evans says he still believed he would argue for disqualification not to be imposed, and was surprised when Mr Checketts did not mention s 94 and the Judge disqualified him.

District Court decision

[8]	After setting out the circumstances of  the  offending,  Judge Turner  noted Mr Evans’ history of driving offences: two convictions for driving while his licence was suspended or revoked in 2014, and three convictions for driving while his licence was suspended, revoked or subject to an order for disqualification in 2016. Previously, fines, community work and community detention had been imposed.

[9]	The Judge took into account the pre-sentence report, particularly concerns expressed there about Mr Evans’ attitude to his offending. While Judge Turner said he would have imposed a sentence of seven months’ imprisonment, he acknowledged Mr Evans’ securing of fulltime employment and the positive recommendations from his employers. As such, the Judge imposed the maximum community detention sentence of six months, with weekend curfew periods set around Mr Evans’ work, and imposed a fine of $1000 and Court costs. Finally, the Judge imposed the minimum period of disqualification available, being one year and one day.

Principles on appeal

[10]	Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.1

Error

[11]	Before me on this appeal, counsel agreed that an error of sorts has arisen in the circumstances I have outlined  above.  There  was  a  miscommunication  between Mr Checketts and Mr Evans at the District Court sentencing regarding the s 94 application, such that Mr Evans had a misunderstanding of the position Mr Checketts intended to advance. This means that a finding of error is effectively conceded here. No finding of blame on anyone’s part is appropriately made, however. This was particularly the case, given that at the District Court sentencing there was a significant risk of Mr Evans receiving a sentence of imprisonment for this offending, as indicated by the Judge at an earlier call-over. It was understandable, therefore, that Mr Checketts focused on mitigating that risk. However, the s 94 application should have been advanced and heard in the District Court. But this did not occur.

1	Criminal Procedure Act 2011, ss 250(2) and 250(3).

Jurisdiction to hear the s 94 application in the High Court

[12]	The question now arises whether I should make a decision on the present appeal which essentially involves that s 94 application, or whether it should be remitted back to the District Court for consideration. As there is little up to date discussion in the cases about this issue, I will take the opportunity to set out the law as I see it.

[13]	For a s 94 application to be heard de novo, further evidence will normally need to be adduced. In support of his application, Mr Evans seeks leave to adduce further evidence, namely affidavits from Mr Evans himself, his mother Ms Doreen Evans, and his employer Mr Jeffrey Walker.

[14]	In a comparable case to the present, Yu v Police, Asher J dealt with this issue as follows:2

[5]     Given that the issue of s 94 was not addressed in the District Court, it is submitted by the Defence and accepted by the Crown that this Court has the power to consider the matter de novo. Section 119(3) of the Summary Proceedings Act 1957 gives the High Court all the jurisdiction and authority of the District Court, and full discretionary power to hear and receive further evidence. The Courts, on a consent basis, will conduct an appeal hearing in this way: R v Police.3

[15]	A similar situation arose in Rollo v Police, in which Winkelmann J said:4

[13] I am satisfied that it is appropriate to consider this issue de novo because no application was made for an order under s 94 before the District Court Judge and I am satisfied that she did not turn her mind to the possibility of an order for community service in substitution for disqualification in the absence of such a submission. There is no reference to the section, or to the possibility of such an order by the Judge, as is to be expected in the circumstances.

[16]	Winkelmann J did not refer to the reasoning in Yu, nor to s 119(3) of the Summary Proceedings Act 1957. Section 119(3) has now been effectively replaced by s 334 of the Criminal Procedure Act 2011, although the two sections are not identical.

2	Yu v Police HC Auckland CRI-2006-404-273, 10 November 2006.
3	R v Police HC Palmerston North AP8/95, 9 March 1995.
4	Rollo v Police HC Whangarei CRI-2007-488-9, 3 May 2007.

[17]	Section 119(3) of the Summary Proceedings Act 2011 provided:

The High Court shall have the same jurisdiction and authority as the District Court, including powers as to amendment, and shall have full discretionary power to hear and receive further evidence, if that further evidence could not in the circumstances have reasonably been adduced at the hearing, and for that purpose shall have the same jurisdiction and authority to make any order under section 31 or section 32 of this Act as the Court from whose decision the appeal is made, or a District Court Judge, had.

[18]	Section 334 of the Criminal Procedure Act 2011 reads:

334	Power to receive and hear evidence

(1)	An appeal court may require the court appealed from to provide it with –

(a)	documents, exhibits, or other things relevant to the appeal; and

(b)	a copy of notes made by the judicial officer who presided at the hearing about any matter arising at or relating to the hearing.

(2)	The appeal court may rehear the whole or any part of the evidence.

(3)	The appeal court has the same jurisdiction and authority as the court appealed from had –

(a)	to hear and receive evidence, and to require evidence to be taken before another court or Registrar; and

(b)	to make any related order or issue any related summons, warrant, or other process.

[19]	There are High Court cases discussing this issue since the enactment of the Criminal Procedure Act 2011, but none of them mention s 334.

[20]	In McColl v Police, where the District Court Judge discussed s 94 but it was unclear whether he considered all the specific criteria in the section, Fogarty J considered it appropriate to rehear the application in the High Court.5 In doing so he referred to Asher J’s reasoning in Yu. His Honour did consider referring the matter back to the District Court, but was influenced by the police considering it appropriate

5	McColl v Police [2014] NZHC 702.

to hear it in the High Court, having particular regard to the “efficient use of judicial resources”.6

[21]	Whata J in Lawrence v Police did not appear to see jurisdiction as a barrier to him considering the application of s 94, simply stating that he saw himself able to do so “because it appears it was not a matter raised with the Judge for his consideration”.7

[22]	In Nair v Police, Lang J would have considered the s 94 application without it having been heard in the District Court, however relevant documents necessary to make a decision were not available to him.8 Thus, Lang J remitted the matter to the District Court.

[23]	By contrast, in Thompson v Police, Woodhouse J stated “In my judgment it would not be appropriate for a s 94 application to be heard in this Court. It is most appropriate that it be considered in the District Court”, and he remitted the proceeding to the District Court accordingly.9

[24]	In light of these cases, particularly Yu10 and McColl,11 I consider that in usual circumstances, the High Court has jurisdiction to hear a s 94 application on appeal from a District Court decision where it was not argued. That being so supports the argument that in this case, I should adduce the further evidence pursuant to s 334 of the Criminal Procedure Act 2011 and make a decision on the substantive merits of the application.

The present case

[25]	However, in this case there is a complicating factor. Mr Evans, between the date of the District Court sentencing appealed from and this hearing, has been convicted  for  an  eighth  time  for  driving  whilst  disqualified.  This  occurred  on 6 September 2018. He is due for sentencing on this eighth driving whilst disqualified

6	At [7].
7	Lawrence v Police [2013] NZHC 3372 at [10].
8	Nair v Police [2014] NZHC 2859.
9	Thompson v Police [2017] NZHC 2347 at [13].
10	Yu v Police, above n 2.
11	McColl v Police, above n 5.

offence in the District Court on 2 November 2018. As for his seventh conviction, there is also a mandatory disqualification period of one year for this eighth conviction. Thus, it is possible that if I grant the s 94 application in the appeal before me here and substitute his mandatory disqualification for a community-based sentence, it might very well simply be overridden within a matter of weeks if the District Court Judge on 2 November 2018 decides not to grant another s 94 application.

[26]	As such, the appropriate course here, as I see it, is for me to adopt a similar position to the one taken by Lang J in Nair.12 I uphold the appeal to the extent that an error was made, and although I consider it open to me to make a decision on the merits of the s 94 application, in the circumstances, I remit the entire matter back to the District Court for reconsideration in light of that s 94 application. It is hoped for efficiency this s 94 consideration might be able to proceed in tandem with the sentencing on 2 November 2018. A direction to this effect is now made.

[27]	Notwithstanding this decision, and the direction outlined at [26] above, as I did hear full argument on the s 94 application, it is appropriate here, in my view, to make one or two preliminary comments relating to s 94 that may be useful. I will now do so.

Section 94 Land Transport Act 1998

[28]	The relevant parts of s 94 of the Land Transport Act are as follows:

94	Substitution of community-based sentences

(1)	This section applies if –

(a)	the offender has previously been ordered on conviction for an offence to be disqualified from holding or obtaining a driver licence; and

(b)	the court, having regard to –

(i)	the circumstances of the case and the offender; and

(ii)	the effectiveness or otherwise of a previous order of disqualification made in respect of the offender; and

12	Nair v Police, above n 8.

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

(iv)	the interests of the public, -

considers that it would be inappropriate to order that the offender be disqualified from holding or obtaining a diver licence; and

(c)	the court considers that it would be appropriate to sentence the offender to a community-based sentence in accordance with Part 2 of the Sentencing Act 2002.

(2)	Despite any provision of this Act that requires a court (in the absence of special reasons relating to the offence) to order a person convicted of an offence to be disqualified from holding or obtaining a driver licence, 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 not to make an order of disqualification, -

(a)	the court must impose a community-based sentence on the offender; and

(b)	the imposition of such a sentence does not limit or affect the power of the court to impose any other sentence for the offence that, in accordance with the provisions of the Sentencing Act 2002, it may impose in addition to the community-based sentence; and

(c)	in determining the appropriate sentence to be imposed on the offender in respect of the offence, the court must take into account the gravity of the offence and the fact that the offender would otherwise have been liable to disqualification from holding or obtaining a driver licence.

[29]	In Maeva v Police, Keane J discussed the purpose of s 94:13

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 further disqualification was likely only to engender further offending.

[30]	In Police v Body, Mallon J noted that s 94 does not apply just to those caught in a cycle of offending, but includes others who meet the criteria in the section.14 For example, the public interest consideration under s 94(1)(b)(iv) can include the public

13	Maeva v Police HC Auckland CRI-2010-404-402, 11 March 2011 at [30].
14	Police v Body [2013] NZHC 1586 at [5].

interest in an offender maintaining employment.15 The starting point is disqualification, but the starting point is subject to a broad discretion to substitute it with a community-based sentence where the disqualification is inappropriate and a community-based sentence is appropriate.16

[31]	In this case, it could be said that Mr Evans fulfils all the legislative requirements so that substituting disqualification for community work under s 94 is a possibility.

[32]	Regarding the circumstances of the offending and the offender, the first consideration under s 94(1)(b), Mr Evans’ driving history is admittedly unenviable. However, counsel for Mr Evans contended that his offending at hand has not put the public directly in danger, and there are few and minor instances of Mr Evans doing so. Counsel maintained that most of his accumulated substantial demerit points have resulted from Mr Evans driving outside the terms of his restricted licence, and this was a proper case for the fresh approach envisaged in s 94 to be applied. Nevertheless, the deception involved here and the fact Mr Evans organised to hold an associate’s paper licence to avoid detection as a disqualified driver certainly does provide some additional serious degree to the particular offending engaged here.

[33]	Previous disqualifications have evidently not been effective for Mr Evans, who may be thought to be a defiant young man. He has repeatedly breached them. He has also shown complete disregard for these orders of the Court. This is despite already receiving what the Crown says are indulgences from the Court including a disqualification of just six months at a previous sentencing, half of the mandatory minimum, and also in the present case in receiving what is described overall as a “generous sentence” and narrowly avoiding imprisonment.

[34]	Given Mr Evans’ situation, his counsel says it is inevitable that he will continue to drive and thus continue to offend. He lives in Central Otago, a little distance from Cromwell where he currently works under what I understand to be a building apprenticeship. Limited public transport options are available. While his mother can

15	At [5].
16	At [7].

drive him to work on construction sites around the region two days a week, other days she cannot and transportation to these proves more difficult. There has been some inconclusive discussion of the appropriateness of cycling to work, but it remains the case that it takes a significant burden off his employer if Mr Evans can drive during the work day.

[35]	There are distinct aspects to the public interest in this case which must be balanced. On one hand, there is clearly public interest in ensuring people respect Court orders. This was memorably outlined by Savage J in Ministry of Transport of Ure,17 cited by Asher J in Yu, in these words:18

It seems to me that the recalcitrant offenders must have it plainly pointed out that unless there (are) very exceptional circumstances, the law is to be observed and, if it is not, then severe and disagreeable sanctions will follow, even if those sanctions seem to be ineffective. It appears to me that in the overall public interest they must be imposed because they are effective as far as most people are concerned. Should it appear that if a person made a big enough nuisance of himself, the law would stop trying to enforce compliance, then it would be destructive of the legal process generally, and also very importantly in my view, be a source of great resentment to other offenders who were treated and punished in a more conventional way. They might, with some justification, feel there was considerable injustice in the judicial process.

[36]	On the other, there is significant public interest in breaking a cycle of offending for a young man aged 22 like Mr Evans starting out here in his career.

[37]	I acknowledge that while Mr Evans’ employer, Mr Walker of O’Callaghan & Walker Builders Ltd, originally gave a positive character reference to the Court, in his affidavit before me, Mr Walker expressed concerns about Mr Evans’ attitude and recorded that he had given him a final warning. Hopefully, if Mr Evans is seen as able to drive again this would remedy some of the issues that have arisen, by putting the onus on him to get to work on time and allowing him a greater degree of independence. Even if this particular employment relationship was unable to be salvaged, the fact of not being able to drive would be a significant hindrance for Mr Evans in finding work as a tradesman in Central Otago.19 In his affidavit, Mr Walker states that having a driver’s licence “is absolutely essential for someone in a trade, particularly in Central

17	Ministry of Transport v Ure HC Wellington AP79/91, 26 June 1991.
18	Yu v Police, above n 2, at [25].
19	In Yu v Police, above n 2, employability was held to be equivalent to retaining employment.

Otago where there are very limited transport options, a broad geographical area and sometimes volatile weather conditions”.

[38]	Ultimately, Mr Evans might seem here to be broadly the type of offender s 94 was designed for. Further disqualification could well be seen as ineffective and disproportionate to the level of his offending but that is a matter for the District Court to determine here. Suffice to say simply that a community-based sentence may well be seen as more effective in holding Mr Evans accountable, while retaining his ability to move past this offending. While substitution of a community-based sentence for disqualification is a level of indulgence by the Court, it is not undermining the Court’s authority. It is exercising a discretion, specifically granted by Parliament, to hold an offender accountable in a way that is more effective, that does not trap them in a cycle of offending, and that is, on balance, in the public interest.

Conclusion

[39]	As I have outlined at [26] and for all the reasons I have set out above, this appeal is allowed. The sentence imposed is quashed, and the proceeding is remitted back to the District Court for rehearing in light of the s 94 application.

...................................................
Gendall J

Solicitors:
Todd & Walker Law, Queenstown RPB Law, Dunedin