Bluegum v Police - [2021] NZHC 1284

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2021-463-34

[2021] NZHC 1284

BETWEEN
CHRISTOPHER BLUEGUM

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 1 June 2021

Appearances:

R Raukawa for appellant G Banuelos for the Crown

Judgment:

2 June 2021

JUDGMENT OF POWELL J

This judgment was delivered by me on 02 June 2021 at 2.30pm Registrar/Deputy Registrar
Date:

BLUEGUM v NEW ZEALAND POLICE [2021] NZHC 1284 [2 June 2021]

[1] On 25 March 2021, Judge Snell convicted, fined ($400) and disqualified the appellant, Christopher Bluegum, from holding or obtaining a driver’s licence for six months.1 Mr Bluegum had pleaded guilty to one charge of driving while his licence was suspended.2

[2] The offending for which Mr Bluegum was sentenced arose on 22 April 2020. He was stopped by Police after losing traction as he drove around a corner. Checks on the Police National Intelligence Application confirmed that Mr Bluegum had been suspended for three months on 29 January 2020.

[3] Mr Bluegum appeals Judge Snell’s refusal to grant his application made under s 94 of the Land Transport Act 1998 (“the Act”) to receive a community-based sentence instead of disqualification.

Section 94

[4] Section 94 of the Act allows for the Court to impose a community-based sentence in lieu of disqualification where an offender has previously been disqualified from driving and the Court considers such a sentence would be appropriate. The section provides:

94 Substitution of community-based sentences

(1)This section applies if—

(a)the offender has previously been ordered on conviction for an offence to be disqualified from holding or obtaining a driver licence; and

(b)the court, having regard to—

(i)the circumstances of the case and of the offender; and

(ii)the effectiveness or otherwise of a previous order of disqualification made in respect of the offender; and

(iii)the likely effect on the offender of a further order of disqualification; and

1 Police v Bluegum [2021] NZDC 5883.
2 Land Transport Act 1998, ss 32(1)(c) and 32(3). Maximum penalty three months’ imprisonment or a fine not exceeding $4,500 and the Court must order the person to be disqualified from holding or obtaining a driver’s licence for six months or more.

(iv)the interests of the public,—

considers that it would be inappropriate to order that the offender be disqualified from holding or obtaining a driver licence; and

(c)the court considers that it would be appropriate to sentence the offender to a community-based sentence in accordance with Part 2 of the Sentencing Act 2002.

[5] For s 94 to apply the offender must therefore have been previously ordered to be disqualified; the Court must decide whether disqualification is inappropriate having regard to the s 94(1)(b) factors; and lastly, the Court must determine if it would be appropriate to sentence the offender to a community-based sentence.

[6] A decision under s 94 is an exercise of the Judge’s discretion. This discretion is broad,3 and is exercised in accordance with the need to remove recidivist disqualified…

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: [2021] NZHC 1284
Decision Date: 2 June 2021

CaseChat Overview and Summary

In this case, the appellant, Christopher Bluegum, appealed the decision of Judge Snell to refuse his application for a community-based sentence instead of disqualification under s 94 of the Land Transport Act 1998. Mr Bluegum had been convicted of driving while his licence was suspended and fined and disqualified from holding or obtaining a driver’s licence for six months. The appeal hinged on the court's interpretation and application of s 94, which allows for a community-based sentence in lieu of disqualification for certain offenders.

The court had to determine whether Judge Snell erred in assessing the criteria under s 94 when declining Mr Bluegum’s application for a community-based sentence. This involved considering whether Mr Bluegum was a recidivist disqualified driver, the effectiveness of previous orders, the likely effect of further disqualification on him, and the public interest. The court had to examine whether Judge Snell considered all relevant factors and whether his conclusions were supported by the evidence.

The court found that Judge Snell did not err in declining Mr Bluegum’s application. The court concluded that Judge Snell had considered all components of s 94(1)(b) and reached conclusions supported by the evidence. Judge Snell found that Mr Bluegum was not a recidivist disqualified driver, had successfully completed a previous disqualification, and that further disqualification would not be excessive. The court also agreed with Judge Snell’s conclusion that refusing to disqualify Mr Bluegum was not in the public interest, as it is important for people to take suspension notices seriously.

The appeal was dismissed, and the decision of Judge Snell was upheld. The court determined that Mr Bluegum's circumstances did not justify a variation from the norm, which is the compulsory period of disqualification under s 32 of the Act.

Orders