Bardwell v Police - [2019] NZHC 1292

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2019-412-000009

[2019] NZHC 1292

BETWEEN
SEAN CHRISTOPHER BARDWELL

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 7 June 2019

Appearances:

A Dawson for Appellant C Ure for Respondent

Judgment:

7 June 2019

ORAL JUDGMENT OF GENDALL J

BARDWELL v NEW ZEALAND POLICE [2019] NZHC 1292 [7 June 2019]

Introduction

[1] On 30 January 2019 in the District Court at Dunedin Judge Crosbie sentenced the appellant Sean Bardwell to 11 months’ home detention and ordered him to be disqualified from holding or obtaining a driver’s licence for three years. Mr Bardwell was sentenced on the basis he had pleaded guilty to a range of charges. These included dangerous driving causing injury; possession of methamphetamine; robbery; driving while impaired by methamphetamine; unlawfully taking a motor vehicle; aggravated injury; and criminal conversion of a motor vehicle. It was for the offences under the Land Transport Act 1998 that Mr Bardwell was disqualified from holding or obtaining a driver’s licence.

[2] Mr Bardwell appeals against this sentence on the single ground that the three- year licence disqualification period was manifestly excessive.

Facts

[3] Turning now to the factual background in this matter, at 1.40 a.m. on 30 May 2018 Mr Bardwell approached the Splash N Dash carwash at Blenheim Road in Christchurch. A man was washing his vehicle and had left it running as he washed it. Mr Bardwell got into the driver’s seat of this vehicle and attempted to drive away. The victim tried to stop Mr Bardwell by getting into the front passenger’s side of the vehicle to remove the keys. Mr Bardwell hit him over the head and managed to get the vehicle into gear. He then accelerated away, crashing through a fence and then into a skip at the back of the carwash. During these events, the victim’s leg was crushed between the vehicle and the skip, causing a hematoma to his knee, nerve damage and swelling.

[4] Upon his arrest, Mr Bardwell admitted he had recently consumed a large amount of methamphetamine. He failed to complete a compulsory impairment test to the satisfaction of the police officer and a blood sample taken later confirmed Mr Bardwell had been using methamphetamine.

District Court decision

[5] Turning now to the District Court decision, on the charges of dangerous driving causing injury and driving while impaired by methamphetamine, Judge Crosbie ordered Mr Bardwell to be disqualified from holding or obtaining a driver’s licence for three years. His Honour did not appear to provide any explicit reasons to indicate how that period was determined.

Principles on appeal

[6] Turning now to the principles to be applied on this appeal, 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…

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 Bardwell v Police

Details

AGLC: Bardwell v Police [2019] NZHC 1292
Case: [2019] NZHC 1292
Decision Date: 7 June 2019

CaseChat Overview and Summary

In this appeal, Sean Christopher Bardwell sought to challenge the sentence imposed upon him by the District Court at Dunedin. The appellant was sentenced to 11 months' home detention and disqualified from holding or obtaining a driver's licence for three years. The basis for this sentence was a range of charges including dangerous driving causing injury, possession of methamphetamine, robbery, driving while impaired by methamphetamine, unlawfully taking a motor vehicle, aggravated injury, and criminal conversion of a motor vehicle. The appellant appealed against the three-year disqualification period, arguing that it was manifestly excessive. The central issue for the court was whether the three-year disqualification period was justified under the relevant sentencing principles.

The High Court considered the principles applicable to appeals against sentence, which include the court intervening only if the sentence being appealed is manifestly excessive and not justified by the relevant sentencing principles. The court examined the facts of the case, the submissions of both parties, and relevant precedents. The court determined that while the offending was serious, it was not of the same magnitude as in some of the cases cited by the Crown, particularly in terms of the duration of the driving, the number of victims, and the location of the offending. The court also considered that the appellant's first significant punishment, in the form of home detention, represented a substantial deterrent effect and thus lessened the need for a lengthy disqualification period.

Ultimately, the court concluded that the three-year disqualification period was manifestly excessive and not justified by the circumstances of the case. The court substituted a two-year disqualification period, which it deemed appropriate to protect public safety while reflecting the seriousness of the appellant's driving offences. The appeal was allowed, and the three-year disqualification period was quashed, replaced with a two-year disqualification period.

Orders