Bush v Police - [2024] NZHC 3847

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2024-404-000533

[2024] NZHC 3847

BETWEEN
MARTYN CHARLES BUSH

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 9 December 2024

Counsel:

PHH Tomlinson for Appellant JT Lowyim for Respondent

Judgment:

16 December 2024

JUDGMENT OF DOWNS J

This judgment was delivered by me on Monday, 16 December 2024 at 1 pm.

Registrar/Deputy Registrar

Solicitors/Counsel:
Crown Solicitor, Auckland. PHH Tomlinson, Auckland.

BUSH v POLICE [2024] NZHC 3847 [16 December 2024]

The appeal

[1] Martyn Bush drove while disqualified for the fifth time. The Judge declined to substitute a community-based sentence for the otherwise mandatory period of disqualification.1 Mr Bush appeals.2

Background

[2] In the early hours of 15 September 2023, Mr Bush was stopped at a Police checkpoint. He failed to provide a driver’s licence when asked for one. A check revealed he was disqualified from driving. Mr Bush said he was going to the hospital.

[3] Mr Bush was later charged with driving while disqualified, being a third or subsequent offence.3 He pleaded guilty promptly.

[4] Mr Bush argued “special reasons” existed in relation to the offence in terms of s 81 of the Land Transport Act 1988 and he should not, therefore, be further disqualified from driving. Mr Bush said he was driving to hospital as he had a broken ankle that was swollen and painful, and cellulitis in the other foot. Mr Bush said he was worried about the latter “spreading up my leg”.

[5] Mr Bush also argued a community-based sentence should be imposed rather than the otherwise mandatory disqualification period. That application was based on s 94 of the Land Transport Act, which provides:

94 Substitution of community-based sentences

(1)This section applies if—

(a) the offender has previously been ordered on conviction for an offence to be disqualified from holding or obtaining a driver licence; and

(b) the court, having regard to—

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

1      Police v Bush [2024] NZDC 23901.
2      Criminal Procedure Act 2011, s 250(2).
3      Land Transport Act 1998, s 32(1)(a) and (4); maximum penalty, two years’ imprisonment,
$6,000 fine.

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

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

(iv)the interests of the public,—

considers that it would be inappropriate to order that the offender be disqualified from holding or obtaining a driver licence; and

(c) the court considers that it would be appropriate to sentence the offender to a community-based sentence in accordance with Part 2 of the Sentencing Act 2002.

(2)Despite any provision of this Act that requires a court (in the absence of special reasons relating to the offence) to order a person convicted of an offence to be disqualified from holding or obtaining a driver licence, the court may instead make an order referred to in subsection (3) if this section applies.

(3)If…

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 Bush v Police

Details

AGLC: Bush v Police [2024] NZHC 3847
Case: [2024] NZHC 3847
Decision Date: 16 December 2024

CaseChat Overview and Summary

In Bush v Police, the appellant, Martyn Charles Bush, appealed against the decision of Judge P L Murray, who declined to substitute a community-based sentence for the mandatory period of disqualification for driving while disqualified. The case involved Mr Bush's fifth instance of driving while disqualified, following a stop at a police checkpoint where it was revealed that he was currently disqualified from driving. Mr Bush argued for "special reasons" under s 81 of the Land Transport Act 1998 and requested a community-based sentence under s 94 instead of the mandatory disqualification. The Judge found no special reasons existed and rejected the application for a community-based sentence, citing Mr Bush's history of unsafe driving and the public interest in maintaining his disqualification.

The primary legal issue in this case was whether the Judge correctly exercised his discretion under s 94 of the Land Transport Act 1998 in declining to substitute a community-based sentence for the mandatory period of disqualification. The court had to determine if the Judge erred in principle, failed to consider a material factor, or took into account an irrelevant consideration. The appeal hinged on whether Mr Bush's circumstances warranted a substituted sentence despite his repeated history of driving while disqualified. The court found that while the circumstances of the immediate offence and Mr Bush's personal situation could support a substituted sentence, the Judge's assessment of the public interest and Mr Bush's driving history justified his decision. The appeal was dismissed as the Judge correctly exercised his statutory discretion.

Orders