Blackburn v Police - [2018] NZHC 3199

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2018-409-000082

[2018] NZHC 3199

BETWEEN
STEPHEN THOMAS BLACKBURN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 29 November 2018

Appearances:

J Tupaea for the Appellant

S Mallett for the Respondent

Judgment:

6 December 2018

JUDGMENT OF NATION J

Introduction

[1] Stephen Blackburn pleaded guilty to a charge of driving while disqualified, third or subsequent. He indicated he wanted to make an application to replace his mandatory disqualification with a community-based sentence under s 94 Land Transport Act 1998. However, no application was filed and served in accordance with the Judge’s directions. At sentencing, Judge Garland refused to grant an adjournment for the application to be heard and proceeded to disqualify Mr Blackburn for the mandatory one year, along with three months’ community detention and nine months’ supervision. The car was also confiscated.

[2] Mr Blackburn appeals the disqualification imposed. He submits that the Judge erred in refusing to adjourn the proceedings for the s 94 application to be heard, and in refusing to substitute the disqualification for a community-based sentence under s
94. The appeal should be dismissed.

BLACKBURN v POLICE [2018] NZHC 3199 [6 December 2018]

Facts

[3] On 19 June 2017, Mr Blackburn was disqualified from driving for a period of one year and one day for driving with excess breath alcohol, third or subsequent.

[4] At 10.15 am on Thursday 5 October 2017, Mr Blackburn was stopped by Police driving on Heaton Street, Rotherham. His explanation was that he was driving to the medical centre to get his daily dose of Suboxone, used to treat opioid addiction.

District Court decision

[5] Judge Garland noted that, when Mr Blackburn was remanded for sentencing, he indicated he wanted to make an application under s 94. The Judge had directed that evidence and submissions on that application had to be filed and served by 15 December 2017 and the police then had until 10 January 2018 to respond. These directions were not complied with and no application was filed.

[6] Mr Blackburn came before Judge Garland on 19 January 2018 for sentencing. Mr Dickson, then counsel for Mr Blackburn, sought the Judge’s approval to file affidavit evidence that day. Judge Garland declined his request, indicating that to allow it would require an adjournment. The Judge said:1
… too often now these applications are indicated, then timetabled, and then when it comes to the sentencing date nothing has been filed. The offenders then request the Court for another adjournment to do what they were directed to do long before that day. In my view the interests of justice require this sentencing to proceed today.

[7] The Judge then proceeded with sentencing, discussing the pre-sentence report, Mr Blackburn’s attitude to the offending, his potential employment, his family and his prior convictions. The Judge also noted that this is Mr Blackburn’s fourth conviction for driving while disqualified, third or subsequent, and the last time he was before…

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.

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Details

Case: [2018] NZHC 3199
Decision Date: 6 December 2018

CaseChat Overview and Summary

The appellant, Stephen Thomas Blackburn, pleaded guilty to driving while disqualified, third or subsequent. Blackburn indicated he wanted to make an application to replace his mandatory disqualification with a community-based sentence under s 94 of the Land Transport Act 1998. However, no application was filed and served in accordance with the Judge’s directions. At sentencing, the District Court Judge refused to grant an adjournment for the application to be heard and proceeded to disqualify Mr Blackburn for the mandatory one year, along with three months’ community detention and nine months’ supervision. The car was also confiscated. Blackburn appeals the disqualification imposed. He submits that the Judge erred in refusing to adjourn the proceedings for the s 94 application to be heard, and in refusing to substitute the disqualification for a community-based sentence under s94. The appeal should be dismissed. The court considered the principles applicable to appeals against sentence and whether the appeal was filed out of time. The court held that the appeal was filed out of time, as the Notice of Appeal was not filed until 3 September 2018, and there was no explanation for the delay. The court also held that the Judge was entitled to refuse an adjournment and to act as he did, and that the appeal did not appear to have any merit. The court declined the application for leave to appeal.

The final orders of the court were that the application for leave to appeal was declined.

Orders