Christians v Police - [2024] NZHC 2191

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2024-404-282 [2024] NZHC 2191

BETWEEN
DINO CHRISTIANS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 5 August 2024

Appearances:

A M H Cranston for the Appellant J Kim for the Respondent

Judgment:

6 August 2024

JUDGMENT OF HARVEY J

This judgment is delivered by me on 6 August 2024 at 4 pm pursuant to r 11.5 of the High Court Rules.

.....................................................
Registrar / Deputy Registrar

Solicitors/Counsel:
Kayes Fletcher Walker, Auckland Public Defence Service, Auckland

CHRISTIANS v NEW ZEALAND POLICE [2024] NZHC 2191 [6 August 2024]

Introduction

[1] On 21 May 2024, Judge S Alofivae at the Manukau District Court sentenced Dino Christians to disqualification for a period of 12 months and one day on a charge of driving while suspended (third or subsequent).1 He appeals that sentence as manifestly excessive on the grounds that the Judge erred in declining his application under s 94 of the Land Transport Act 1998 (LTA).

[2] At yesterday’s hearing I confirmed that the appeal was allowed and the s 94 application was granted. The sentence would be quashed and instead the appellant was sentenced to 120 hours community work. Counsel then submitted that the completion of a defensive driving course might also be appropriate. However, Mr Kim was unsure as to whether that could be imposed without a sentence of supervision. Counsel were directed to file a joint memorandum on this issue which has now been received.

Summary of facts

[3] In 2019, the appellant’s class 2 driver’s licence was disqualified by the New Zealand Transport Agency (NZTA) due to him not being a fit and proper person to have a class 2 licence. On 26 July 2021, the appellant was convicted in the Manukau District Court of driving while suspended (third or subsequent). On 3 September 2023, Constable Qaraniqio served a demerit suspension notice to the appellant at his home address. Less than a month later on 1 October 2023, the appellant drove a heavy motor vehicle and was stopped as its certificate of fitness had expired. Police records confirmed that the appellant was suspended from driving due to the demerit suspension notice. NZTA confirmed his previous disqualification from driving class 2 vehicles in 2019. In explanation, the appellant stated that he could not remember being served anything.

District Court decision

[4] The Judge noted that the appellant had made a s 94 application under the LTA. The appellant had filed an affidavit but the Judge suggested it was more appropriate

1 Police v Christians [2024] NZDC 12254.

for a limited licence to be granted, and encouraged the appellant to apply for one. The Judge concluded:

[3] At some point the penny must drop for you that your behaviour on the roads is not acceptable. There are rules and laws for a reason. You lost your licence through demerit points, I understand you have now got it back, and the disqualification that would apply in…

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: [2024] NZHC 2191
Decision Date: 6 August 2024

CaseChat Overview and Summary

Dino Christians appeals the sentence imposed on him by Judge S Alofivae at the Manukau District Court for driving while suspended. The District Court sentenced Christians to disqualification for a period of 12 months and one day. Christians contends the sentence was manifestly excessive as the Judge erred in declining his application under s 94 of the Land Transport Act 1998. The appeal was allowed and Christians' s 94 application was granted. The sentence was quashed and Christians was instead sentenced to 120 hours community work. Counsel were directed to file a joint memorandum on whether a requirement for the completion of a defensive driving course might also be appropriate.

The key issue was whether it would be inappropriate to impose the otherwise mandatory period of disqualification, having regard to the matters listed in s 94(1)(b) and whether it is instead appropriate to sentence him to a community-based sentence. The Court accepted that the Judge erred in declining the appellant’s s 94 application on the grounds that he was able to apply for a limited licence. The Court considered the circumstances of the case and of the offender, the effectiveness or otherwise of a previous order of disqualification made in respect of the offender, the likely effect on the offender of a further order of disqualification, and the interests of the public. The Court concluded that it would be inappropriate to impose a further period of disqualification and that a community-based sentence would be appropriate in the overall circumstances.

The appeal is allowed. The period of disqualification imposed for the charge of driving while disqualified is accordingly quashed. Pursuant to s 94 of the LTA, Christians is sentenced to 120 hours community work, supervision for nine months and a special condition that he must complete a defensive driving course within that period of supervision.

Orders