Brown v The King - [2024] NZHC 960

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2024-409-39

CRI-2024-409-40 [2024] NZHC 960

BETWEEN
JOSHUA WIRIMU BROWN

Appellant

AND

THE KING

Respondent

Hearing: 24 April 2024

Appearances:

B P A Shamy for Appellant

B W D Alexander for Respondent

Judgment:

29 April 2024

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 29 April 2024 at 9.30 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar
Date……………

BROWN v R [2024] NZHC 960 [29 April 2024]

Introduction

[1] Joshua Brown pleaded guilty to charges of driving while suspended (third or subsequent) (x3),1 theft,2 perverting the course of justice,3 unlawful possession of explosive,4 and unlawful possession of an imitation firearm.5 Mr Brown was sentenced by Judge Ruth to eight months’ home detention and disqualified from driving for 12 months.6 Mr Brown now appeals the Judge’s refusal to grant an application under s 94 of the Land Transport Act 1998 (LTA), to have a community-based sentence imposed in place of the period of disqualification.

Facts

[2] On 22 October 2022, Mr Brown was suspended for excess demerit points for three months. On 5 November 2022, Mr Brown was stopped by police while driving. On 8 November 2022, Mr Brown was again stopped by police while driving.

[3] On 20 November 2022, Mr Brown entered a petrol station, hired and paid for a trailer for two hours and then never returned it. Mr Brown provided a false phone number when hiring the trailer. The trailer was reported stolen on 22 November 2022 and found by a member of the public on 11 December, abandoned on Brookside Terrace. On discovery, the trailer had a damaged axle, punctured tyres, welding damage and was filled with rubbish. Reparation of $513 is sought for the damage and disposal costs.

[4] On 22 December 2022, Mr Brown was scheduled to appear in the Christchurch District Court. Mr Brown advised his lawyer that he had COVID-19 and could not attend. On being told to send confirmation of this to the Court, Mr Brown sent a cropped image of a positive test taken from an American public health website. An affidavit was provided by one Samantha Ayers confirming that she had witnessed Mr Brown take a positive test on 19 December 2022.

1      Land Transport Act 1998, ss 32(1)(c) and 32(4); maximum penalty two years’ imprisonment.
2      Crimes Act 1961, ss 219 and 223; maximum penalty seven years’ imprisonment.
3      Section 117(e); maximum penalty seven years’ imprisonment.
4      Arms Act 1983, s 46(1); maximum penalty four years’ imprisonment.
5      Section 46(1); maximum penalty two years’ imprisonment.
6      R v Brown [2024] NZDC 2958.

[5] On 4 April 2023 Mr Brown was served with a driver suspension notice and his licence was suspended for three months. On 24 April 2023, Mr Brown was convicted of two charges of driving while disqualified (third or subsequent).

[6] On 25 April 2024, Mr Brown was stopped by police and spoken…

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 Brown v The King

Details

AGLC: Brown v The King [2024] NZHC 960
Case: [2024] NZHC 960
Decision Date: 29 April 2024

CaseChat Overview and Summary

Joshua Brown appeals the Christchurch District Court's refusal to grant his application under section 94 of the Land Transport Act 1998 (LTA) to replace a 12-month period of disqualification from driving with a community-based sentence. Brown had been found guilty of multiple charges including driving while suspended, theft, perverting the course of justice, and possession of an explosive and an imitation firearm. The District Court imposed an eight-month sentence of home detention, two months of home detention on each of the driving while disqualified charges, and a 12-month period of disqualification from driving. The sole issue before the High Court was whether the District Court erred in refusing Brown's application under section 94 of the LTA.

The High Court found that the District Court did not err in refusing Brown's application. The Court observed that the District Court's decision expressed its conclusion that a community-based sentence would not be appropriate, as the offending was sufficiently serious to warrant a sentence of imprisonment and the requisite period of disqualification. The High Court further determined that even if the District Court had misunderstood its jurisdiction to impose a community-based sentence alongside home detention, the requirements of section 94 of the LTA would not be met in this case. The Court found that disqualification was not inappropriate given Brown's repeated instances of driving while disqualified, and his history of non-compliance with community work sentences. The appeal was therefore dismissed.

Orders