Balloch v Police - [2019] NZHC 227

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2018-425-000031

[2019] NZHC 227

BETWEEN
QUENTIN PHILLIP BALLOCH

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 4 February 2019

Appearances:

J Mooney for the Appellant

S N McKenzie for the Respondent

Judgment:

21 February 2019

JUDGMENT OF NATION J

[1] On 24 September 2018, on two charges of driving while disqualified (third or subsequent), the appellant, Mr Balloch, was sentenced to four months’ imprisonment and 26 months’ disqualification from driving.1 He seeks to appeal on the basis that the further period of disqualification was excessive.

[2] When considering the length of disqualification for driving while disqualified, there can be good reason for a Judge to fix the length of the further disqualification as a punitive measure to bring home to the disqualified driver the obligation to respect a Court’s order for disqualification. In other situations, the emphasis may be on avoiding a disqualification which is for so long that it sets the offender up to fail, potentially resulting in a sentence of imprisonment that would not be in the interest of either the offender or the public. This appeal brings into focus the tension between these two rationales for the term of a disqualification.

1 Police v Balloch [2018] NZDC 20359.

BALLOCH v POLICE [2019] NZHC 227 [21 February 2019]

Application for leave to appeal out of time

[3] Mr Balloch’s appeal is just out of time. His notice of appeal was filed on 2 November 2018, nine working days after the due date of 22 October 2018. There is a rational explanation for the delay, given Mr Balloch was in custody during this period and his lawyer had difficulty contacting him. The application for leave to appeal is granted.

Facts

[4] Mr Balloch is a 36 year old solo father of two young children. He was unemployed but has a qualification as a site traffic management supervisor. He has been diagnosed with ADHD.

[5] On 4 May 2017, Mr Balloch was disqualified from driving for 15 months for driving with excess blood alcohol on 2 December 2016. That disqualification was due to end on 4 August 2018. He had been sentenced previously for driving while disqualified on 30 June 2005, 1 May 2001 and 9 February 2001.

[6] At around 3.00 pm on 15 May 2018, Mr Balloch was stopped by Police driving on Crawford Street, Invercargill. His explanation was that he was picking his children up from school.

[7] At around 4.00 pm on 14 June 2018, Mr Balloch was stopped by Police driving on Eye Street, Invercargill. He admitted he had driven to the probation office for a pre-sentence report relating to the 15 May 2018 driving offending, and said that after this he was driving to pick up his children.

The sentencing in the District Court

[8] At the time the Judge sentenced Mr Balloch for these two further offences of driving while disqualified, she also had to deal with…

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 Balloch v Police

Details

AGLC: Balloch v Police [2019] NZHC 227
Case: [2019] NZHC 227
Decision Date: 21 February 2019

CaseChat Overview and Summary

Quentin Phillip Balloch appeals against his sentence for two charges of driving while disqualified. The appeal is out of time, but leave to appeal is granted because of the appellant's incarceration at the time of the appeal. The appellant was sentenced to four months’ imprisonment and 26 months’ disqualification from driving. The appellant submits that the further period of disqualification was excessive. The court must determine whether the sentence was manifestly excessive or not justified by the relevant sentencing principles.

The court examined the rationale for disqualification in cases of driving while disqualified and noted that cumulative periods of disqualification can be justified where the offences are unconnected in time and do not constitute a continuing course of conduct. The court also considered the appellant's personal circumstances and previous offending. The court concluded that the sentence was not manifestly excessive, and the appeal against the sentence of disqualification is allowed only to correct a slip in the sentencing remarks.

The court ordered that the appellant remains disqualified from holding or obtaining a driver licence for 13 months from 24 September 2018 on the charge of driving while disqualified on 15 May 2018. On the charge of driving while disqualified on 14 June 2018, the appellant is disqualified from holding or obtaining a driver licence for 13 months from 24 October 2019.

Orders