Affleck v Police - [2023] NZHC 2643

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2023-409-143

[2023] NZHC 2643

BETWEEN
DYLAN WILLIAM AFFLECK

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 20 September 2023

Appearances:

A J Greaves for Appellant C E Martyn for Respondent

Judgment:

21 September 2023

JUDGMENT OF MANDER J

This judgment was delivered by me on 21 September 2023 at 3 pm pursuant to Rule 11.5 of the High Court Rules 2016

Registrar/Deputy Registrar Date: .

AFFLECK v POLICE [2023] NZHC 2643 [21 September 2023]

Introduction

[1] Dylan Affleck pleaded guilty in the Christchurch District Court to two charges of driving with excess breath alcohol (third or subsequent),1 and charges of dangerous driving,2 failing to stop (third or subsequent)3 and driving while suspended (third or subsequent).4 Mr Affleck was sentenced to two years’ imprisonment by Judge Gilbert.5 He appeals that sentence.

Facts

Driving with excess breath alcohol (third or subsequent)

[2] In the early hours of 12 April 2022, Mr Affleck was apprehended travelling 32 kph over the speed limit. An evidential breath test returned a result of 473 mcg of alcohol per litre of breath.

Failing to stop (third or subsequent) and driving in a dangerous manner

[3] On the evening of 23 February the next year, Mr Affleck was the driver of a car on Ferry Road. Police signalled for the car to stop using red and blue flashing lights and their siren. Mr Affleck accelerated heavily and drove on the wrong side of the road at an estimated speed of 120 kph. The speed limit was 50 kph. The road was busy with commuters and pedestrians. Mr Affleck continued to drive until he became trapped in a cul-de-sac blocked by police. Mr Affleck responded by driving onto the footpath for approximately 20 m in order to evade police.

[4] Mr Affleck was located a short time later. He was again driving at a high speed. He swerved towards a police patrol car and pulled the finger at its occupants as he drove past. Mr Affleck’s speed was recorded at 136 kph in a 60 kph zone. Police went to the vehicle’s registered address to conduct enquiries. While they were there,

1      Land Transport Act 1998, s 56 — maximum penalty two years’ imprisonment or a $6,000 fine, and a minimum mandatory one-year disqualification from holding or obtaining a driver licence.
2      Section 35(1)(b) — maximum penalty three months’ imprisonment or a $4,500 fine, and a minimum mandatory six-month disqualification from holding or obtaining a driver licence.
3      Section 52A(1)(a)(ii) — maximum penalty three months’ imprisonment and a mandatory two- year disqualification from holding or obtaining a driver licence.
4      Section 32(1)(c) — maximum penalty two years’ imprisonment or a $6,000 fine, and a minimum mandatory one-year disqualification from holding or obtaining a driver licence.
5      New Zealand Police v Affleck [2023] NZDC 14259.

Mr Affleck arrived in the vehicle. On seeing police, he reversed out of the driveway and drove away at…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Affleck v Police

Details

AGLC: Affleck v Police [2023] NZHC 2643
Case: [2023] NZHC 2643
Decision Date: 21 September 2023

CaseChat Overview and Summary

Dylan Affleck appeals the sentence imposed on him by the Christchurch District Court for multiple driving offences. The High Court of New Zealand was required to determine whether the starting point for the sentence was too high and if leave should have been granted to apply for home detention instead of imprisonment. The court found that the starting point for the sentence was within the appropriate range, considering Mr Affleck's criminal history and the seriousness of his offences. The court also concluded that the District Court Judge had valid reasons for not granting leave to apply for home detention, as Mr Affleck presented a significant risk to the community's safety and had previously failed to comply with court orders and rehabilitation programs. The appeal against the sentence was dismissed.

Orders