Bartram v Police - [2019] NZHC 90

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CRI-2018-454-24

[2019] NZHC 90

BETWEEN
LOGAN BARTRAM

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 4 February 2019

Appearances:

W Hawkins for the Appellant

R D Davies and E Pairman for the Respondent

Judgment:

7 February 2019

JUDGMENT OF COOKE J

[1] On 6 December 2018 Mr Bartram was sentenced by the District Court at Dannevirke on one charge of driving while disqualified.1 The Judge decided to impose a sentence of community work in relation to that charge. In addition he decided that it was inappropriate to impose a period of further disqualification in accordance with ss 32 and 94 of the Land Transport Act 1998, and that the period of community work should instead be increased. The Judge imposed a total sentence of 200 hours community work.

[2] The appellant appeals on the basis that the sentence was manifestly excessive. This is a first appeal under s 244 of the Criminal Procedure Act 2011, and under s 250 the appeal Court must allow the appeal if satisfied that:

1 Land Transport Act 1998, s 32(1)(a) and s 32(3), maximum penalty three months imprisonment,
$4,500 fine.

BARTRAM v NEW ZEALAND POLICE [2019] NZHC 90 [7 February 2019]

(a)for any reason, there is an error in the sentence imposed on conviction; and

(b)a different sentence should be imposed.

[3] A sentence appeal is an appeal against a discretion and only if there is an error of principle should the appellate court reconsider the discretion. An error of principle includes an error of fact or law, failing to take into account a relevant consideration, or if the decision was plainly wrong.2 The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.3

Factual circumstances

[4] The relevant facts and circumstances were not fully set out in the Judge’s very brief decision, and neither were they fully apparent from the parties’ written submissions, or indeed the Court file. Counsel were able to provide me with some assistance during the hearing however, although Mr Hawkins explained that he had initially appeared for the appellant in his capacity as duty solicitor.

[5] Mr Bartram was 20 years old at the time of the offending. On 22 May 2018 he was disqualified from driving for a period of six months commencing on 18 May 2018. Neither counsel were able to tell me the reason for the original disqualification, although both surmised that it was likely to have been the result of an accumulation of demerit points. That does appear likely. Mr Bartram has only one other previous conviction in 2017 for offending in 2015 (receiving stolen property).

[6] The appellant was stopped by the police on High Street, Dannevirke on 5 November 2018, within the last month of the six months disqualification. When stopped he stated to police that he did not think he…

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 Bartram v Police

Details

AGLC: Bartram v Police [2019] NZHC 90
Case: [2019] NZHC 90
Decision Date: 7 February 2019

CaseChat Overview and Summary

The appeal in Bartram v Police was heard by Cooke J in the High Court of New Zealand. The appellant, Logan Bartram, was appealing against the sentence imposed by the District Court at Dannevirke on a charge of driving while disqualified. Bartram was sentenced to 200 hours of community work, a sentence which he argued was manifestly excessive. The appeal was assessed under the Criminal Procedure Act 2011, and the court was required to determine whether there was an error in the sentence imposed on conviction and whether a different sentence should be imposed.

The appeal hinged on the interpretation of ss 32 and 94 of the Land Transport Act 1998. Section 32 mandates that a person convicted of driving while disqualified must be disqualified for six months or more, while s 94 allows the court to impose a community-based sentence in lieu of disqualification if it is deemed inappropriate. The court was required to decide whether the sentence imposed by the District Court was appropriate given the circumstances of the case and the relevant legal provisions.

Cooke J found that the sentence of 200 hours of community work was manifestly excessive. The court considered the appellant's age, limited criminal history, and employment circumstances, which necessitated driving for work purposes. The court compared the sentence with other cases where the s 94 discretion had been exercised and found that the sentence imposed in this case was significantly longer than those in similar cases. Cooke J concluded that the appropriate sentence would have been 40 hours of community service, which corresponds to the general starting point of an additional 20–40 hours’ community work in lieu of a six month disqualification period.

The appeal was allowed, and the sentence of 200 hours’ community work was replaced with a sentence of 40 hours’ community work. This decision brings the case in line with those addressed in previous authorities and ensures consistency in sentencing for similar offences.

Orders