Bull v Police - [2019] NZHC 899

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI 2019-419-8

[2019] NZHC 899

BETWEEN
KELVIN DAVID BULL

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 12 April 2019

Counsel:

J McLeod for Appellant B Vaili for Respondent

Judgment:

24 April 2019

JUDGMENT OF DUFFY J

This judgment was delivered by me on 24 April 2019 at 11.30 am pursuant to
Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Solicitors:
Public Defence Service, Hamilton Crown Solicitor, Hamilton

BULL v NEW ZEALAND POLICE [2019] NZHC 899 [24 April 2019]

[1] The appellant, Kelvin Bull, appeals against his disqualification from driving which was part of a sentence that was imposed upon him by Judge Burnett on 21 December 2018. This sentence followed Mr Bull’s conviction, after entry of guilty pleas, on charges under the Land Transport Act 1998 (LTA) of driving while disqualified; failing to stop; and giving false information. There is no challenge to the other sentences that the Judge imposed on Mr Bull.

[2] The above charges all arose from the same incident when Police stopped Mr Bull and the vehicle he was driving on 14 May 2018 and found he was a disqualified driver. Other charges also arose from this incident: namely, refusing to permit a blood specimen; aggravated assault; and resisting arrest. However, because Mr Bull maintained not guilty pleas to these charges they were not heard until March this year by Judge Rollo in the Tauranga District Court. The Judge alone trial resulted in findings of guilty and convictions were entered on these charges, for which Mr Bull is due to be sentenced on 8 May 2019.

[3] The sentence appeal is essentially based on an argument that the sentencing before Judge Burnett has miscarried through process error.

[4] The incident arose in Tauranga. The charges were all originally based in the Tauranga District Court. After guilty pleas were entered to some of the charges at some time a District Court Judge transferred those charges to the Hamilton District Court for sentencing. This is when Ms McLeod, who works for the Public Defender at Hamilton, came to be involved.

[5] At the sentencing hearing before Judge Burnett Ms McLeod sought an adjournment. She had only learned about the sentencing date at short notice from Mr Bull. The prosecuting sergeant had not been notified and he did not have the file. There was no agreed summary of facts for the charges to which the guilty pleas were entered. In addition, Ms McLeod had wanted to file an application pursuant to s 94 of the LTA for disqualification to be substituted with a community-based sentence, but the short notice she received had left her no time to take that step. Accordingly, Ms McLeod requested the sentencing be adjourned to the same date as the Judge alone trial for the defended charges. This presumably would also have required the

sentencing to be transferred back to the Tauranga District Court so that…

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: [2019] NZHC 899
Decision Date: 24 April 2019

CaseChat Overview and Summary

Kelvin David Bull appeals against the disqualification from driving that was part of a sentence imposed on him by Judge Burnett on 21 December 2018. The sentence followed Bull’s conviction on charges under the Land Transport Act 1998 (LTA) of driving while disqualified; failing to stop; and giving false information. The court was required to determine whether the sentence appeal was valid and if the sentencing process had errors that warranted appeal. The court found that the procedural management of the charges and the way the sentencing proceeded before Judge Burnett had led to errors that warranted the court interfering on appeal with the sentence imposed. The court set aside the three disqualifications and remitted the charges of driving while disqualified and failing to stop back to the District Court for it to consider whether it was appropriate to order disqualification on those charges. The sentences are to be reconsidered by Judge Rollo as part of the sentencing for the remaining charges which he is currently scheduled to hear on 8 May 2019.

Orders