Burley v Police - [2015] NZHC 149

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2014-409-126 [2015] NZHC 149

MARK JOSHUA BURLEY Appellant

v

NEW ZEALAND POLICE Respondent

Hearing: 12 February 2015

Counsel:

S A Law for Appellant
C D Newman for Respondent

Judgment:

12 February 2015

JUDGMENT OF BROWN J

[1] The appellant appeared in the Christchurch District Court on

20 October 2014 for sentence on a charge of excess breath alcohol. The maximum penalty for an offence against s 56(1) of the Land Transport Act 1998 is imprisonment for a term not exceeding three months’ imprisonment and a minimum disqualification from holding or obtaining a drivers licence for six months.

[2] This was the defendant’s third conviction, he having previously been convicted of an offence against s 57 committed on 6 June 2008 and an offence against s 56 committed on 18 December 2010.

[3] The appellant was sentenced to 100 hours community work and orders were

made confiscating the appellant’s motor vehicle and disqualifying him from holding

or obtaining a drivers licence under s 65 of the Act.

BURLEY v NZ POLICE [2015] NZHC 149 [12 February 2015]

[4] His appeal is confined to the order of a indefinite disqualification on the grounds that the Judge did not have jurisdiction to impose that penalty.

[5] It is common ground that there was no jurisdiction for the Court to impose an indefinite disqualification in this case. Section 65 of the Act states:

65 Mandatory penalties for repeat offences involving use of alcohol or drugs

(1) This section applies to offences against any of sections 56 to 62.

[(2) A court must make an order requiring a person to attend an assessment centre and disqualifying the person from holding or obtaining a driver licence until the Agency removes that disqualification under section 100 if—

(a) the court convicts that person of a second or subsequent offence against any of sections 56 to 62; and

(b) the previous offence was committed within 5 years of the date of the commission of the offence being dealt with by the court.]

(3) [Despite subsection (2), the] court may not make an order referred to in subsection (2) unless at least 1 of the offences was—

(a) An offence to which this section applies where either—

(i) The proportion of alcohol in the person's breath, as ascertained by an evidential breath test, exceeded
1,000 micrograms of alcohol per litre of breath; or

(ii) The proportion of alcohol in the person's blood, as ascertained from an analysis of a blood specimen, exceeded 200 milligrams of alcohol per 100 millilitres of blood; or

(b) An offence against section 59 or section 60 (which relate to failing to remain or to accompany or to permit a blood specimen to be taken for the purposes of the administration of breath tests and blood tests).

[(4) The court must make an order that requires a person to attend an Assessment Centre and that disqualifies that person from holding or obtaining…

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 Burley v Police

Details

AGLC: Burley v Police [2015] NZHC 149
Case: [2015] NZHC 149
Decision Date: 12 February 2015

CaseChat Overview and Summary

In the High Court of New Zealand, Burley appealed against a sentence imposed by the Christchurch District Court. The appellant was sentenced to 100 hours of community work and disqualified from holding or obtaining a driver's licence indefinitely, following his third conviction for a driving offence under the Land Transport Act 1998. The appeal was confined to the indefinite disqualification order, arguing that the District Court lacked jurisdiction to impose such a penalty.

The court had to decide whether the District Court had the jurisdiction to impose an indefinite disqualification for the appellant's third conviction under the Land Transport Act 1998. The appellant argued that the previous convictions did not involve the required levels of alcohol, nor did they involve convictions for offences against sections 59 or 60 of the Act. The court considered the provisions of section 65 of the Act, which applies to offences against sections 56 to 62. The court found that the appellant's previous convictions did not satisfy the criteria in section 65(3), and therefore, the indefinite disqualification order was not available to the sentencing judge. The court quashed the order for disqualification of the appellant pursuant to section 65 of the Act.

The court reviewed the appropriate period of disqualification for the appellant, taking into account all the relevant factors. The court found that the purpose of disqualification is to protect other road users from further driving that puts the public at risk. Considering the appellant's previous convictions, the level of intoxication, and the other aspects of the sentence, the court determined that a disqualification period of nine months would be appropriate. The court allowed the appeal and substituted the indefinite disqualification order with a nine-month disqualification period, taking into account the time which has elapsed since the sentencing in the District Court.

Orders