Boag v Police - [2019] NZHC 3097

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-0362

[2019] NZHC 3097

BETWEEN
DION WARRICK BOAG

Appellant

AND

NEW ZEALAND POLICE

Respondent

Date of hearing: 26 November 2019

Appearances:

J F Mather for the appellant

A G Wiltshire for the respondent

Date of judgment:

26 November 2019

JUDGMENT OF JAGOSE J

The judgment was delivered by me on 26 November2019 at 4.00pm.

……………………………… Registrar/Deputy Registrar

Solicitors/Counsel:
John Mather Barrister, Auckland Meredith Connell, Auckland

BOAG v NEW ZEALAND POLICE [2019] NZHC 3097 [26 November 2019]

[1] Dion Boag was sentenced to five months’ home detention and reparation payments of $2000 and $37,650 by Judge S J Maude in the District Court at North Shore on 8 May 2019,1 after pleading guilty to being a person in charge of a motor vehicle causing bodily injury while driving with excess breath alcohol.2 Mr Boag’s appeal is brought on the sole ground the latter reparation order is manifestly excessive.

Application out of time

[2] Mr Boag requires an extension of time to appeal,3 as his appeal was not filed within 20 working days of sentence.4 Mr Boag’s appeal was filed on 12 August 2019, over three months after his 8 May 2019 sentencing. Extensions of time are granted in the interests of justice.5 Such applications “routinely reduce to two heads”: first, why was the appeal filed late; and second, what (if any) merit may the appeal have?6

[3] Mr Boag explains he was unaware at sentencing the larger reparation order was made, as it was contained in an addendum to the notes of the Judge’s sentencing remarks, only obtained on 12 August 2019. The notice of appeal was filed that day. The delay is short and explained.7 Police take no issue with the appeal being filed out of time. The contested reparation payment offers grounds for challenge. I will grant the extension of time.

Background

—offending

[4] On 23 March 2018 at approximately 11.50 pm, Mr Boag was driving north on Matakana Valley Road with the victim, who owned a construction company. The road has a speed limit of 100 kilometres per hour and was wet at the time. Mr Boag entered a left-hand corner at speed, causing him to lose control. The car ran into a dirt embankment, overturning before landing back on its wheels.

1      Police v Boag [2019] NZDC 8645.
2      Land Transport Act 1998, s 61(1)(b). Maximum penalty is five years’ imprisonment or a fine not exceeding $20,000.
3      Criminal Procedure Act 2011, s 248(4).
4      Section 248(2).
5      Mikus v R [2011] NZCA 298 at [26], citing R v Knight [1998] 1 NZLR 583 (CA) at 587.
6      R v Slavich [2008] NZCA 116 at [14]; see also Mikus v R, above n 5, at [26].
7      See R v Lee [2006] 3 NZLR 42 (CA) at [115].

[5] The victim was not wearing a seatbelt. He was flung from the vehicle when it overturned. Mr Boag was trapped…

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 Boag v Police

Details

AGLC: Boag v Police [2019] NZHC 3097
Case: [2019] NZHC 3097
Decision Date: 26 November 2019

CaseChat Overview and Summary

Dion Warrick Boag appealed against his sentence, imposed by the District Court, for driving a motor vehicle while over the legal alcohol limit and causing injury to another person. The appeal was filed outside of the 20 working day window provided by statute. The appeal was allowed on the basis that the reparation order was manifestly excessive and the court was not satisfied the offender had the means to pay. The court granted an extension of time for the appeal, quashed the reparation order, and remitted the matter to the District Court for reconsideration of the reparation order. The court also ordered a reparation report be prepared for the District Court for the purpose of sentencing.

The court considered the legal issues to be whether the appeal should be allowed despite being filed out of time, and whether the reparation order was manifestly excessive. The court held that the appeal should be allowed as the delay was short and explained, and the reparation order offered grounds for challenge. The court held the reparation order was manifestly excessive as the offender’s financial circumstances were not properly considered and the amount of the order was not justified.

Orders