Burgess v Police - [2021] NZHC 362

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2020-409-000184

[2021] NZHC 362

BETWEEN
DANIEL BURGESS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 3 March 2021

Appearances:

K T White and B Ayrey for Appellant S Bicknell for Respondent

Judgment:

3 March 2021

ORAL JUDGMENT OF DUNNINGHAM J

Introduction

[1] The appellant, Daniel Burgess, drove while disqualified. It was the ninth time. Although he applied to substitute a community-based sentence for a period of disqualification, Judge Brandts-Giesen sentenced him to six months’ community detention and two years’ disqualification.1 Mr Burgess appeals the failure to grant the s 94 application.

Facts

[2] On 15 January 2020, Mr Burgess was disqualified from driving until 14 July 2020. He drove someone else’s motorcycle down Moorhouse Avenue on 14 May 2020. His evidence is he was taking the bike to be serviced and had otherwise complied with his disqualification.

1 Land Transport Act 1998, s 94.

BURGESS v NEW ZEALAND POLICE [2021] NZHC 362 [3 March 2021]

[3] Mr Burgess was also sentenced for wilful damage and disorderly behaviour. He does not appeal that sentence.

[4] Mr Burgess is 27 years old. He has 29 previous convictions, including eight for driving while disqualified or suspended. He is currently employed on a casual basis by Concrete Contractors Ltd. They have offered him full time work on the condition he retains his licence and I received a letter today confirming that remains the position. He has not had full time work since he was 21 years old.

District Court decision

[5] For the offence of driving while disqualified, Judge Brandts-Giesen adopted a starting point of one years’ imprisonment. He gave a discount of 25 per cent for Mr Burgess’ guilty plea. The Judge was reluctant to send Mr Burgess to jail so imposed a sentence of six months’ community detention.

[6] He also disqualified Mr Burgess from driving for two years. In doing so the Judge explained that this was his ninth conviction and there was no sensible explanation for driving on that occasion. The Judge did not expressly address the substitution application before him.

[7] For the other offending Mr Burgess was fined $800 and ordered to pay $500 in reparation.

Principles on appeal

[8] The only aspect of the Judge’s decision which is subject to appeal is the application for substitution of disqualification.

[9] Section 94 of the Land Transport Act provides discretion for the court to substitute a period of disqualification for a community-based sentence. This discretion is available if the offender has previously been disqualified from driving.2 It can be exercised if it would be inappropriate for the offender to be disqualified. In deciding that, the Court must have regard to:

2 Section 94(1)(a).

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

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

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

(d)the interests of…

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 362
Decision Date: 3 March 2021

CaseChat Overview and Summary

In the High Court of New Zealand, Daniel Burgess appeals against the sentence of two years' disqualification from driving imposed by Judge Brandts-Giesen, following his conviction for driving while disqualified for the ninth time. Burgess was sentenced to six months of community detention in addition to the disqualification. The appeal focuses on the refusal to substitute a period of disqualification with a community-based sentence under section 94 of the Land Transport Act 1998. The District Court Judge adopted a starting point of one year's imprisonment for the offence but reduced this to six months of community detention due to Burgess' guilty plea and reluctance to send him to jail. The court did not explicitly address the s 94 application.

The legal issues revolve around the discretionary power of the court to substitute a period of disqualification for a community-based sentence under s 94 of the Land Transport Act, considering factors such as the circumstances of the case and offender, the effectiveness of previous orders, the likely effect on the offender, and the interests of the public. The court must balance these considerations to decide if a substitution would be appropriate. The District Court Judge did not explicitly consider all the mandatory considerations, which led to the appeal. The court also considered whether the two-year disqualification was manifestly excessive if the s 94 appeal failed.

The High Court found that the District Court Judge failed to adequately consider the mandatory considerations set out in s 94, particularly the likely effect of a further order of disqualification and the public interest considerations. The court concluded that Burgess should be given an opportunity to break the cycle of offending and rehabilitate himself by contributing to society. The High Court allowed the appeal, quashed the sentence of two years' disqualification, and imposed a sentence of 50 hours of community work instead. The sentence of six months' community detention remained in place, but the conditions were varied to allow Burgess to start work earlier.

Orders