Collett v Police - [2017] NZHC 489

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2016-488-41 [2017] NZHC 489

BETWEEN
BRYAN WAYNE COLLETT

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 15 March 2017 (heard at Whangarei)

Appearances:

M Pecotic for Appellant
MB Smith for Respondent

Judgment:

15 March 2017

ORAL JUDGMENT OF TOOGOOD J

Collett v NZ Police [2017] NZHC 489 [15 March 2017]

[1] This judgment replaces my oral judgment delivered on 15 March 2017, which was recalled after I discovered that part of the decision was based on an error by me.

[2] On 3 December 2015, Bryan Wayne Collett’s licence was suspended, for

acquiring excess demerit points under the Land Transport system, for a period of

3 months ending 3 February 2016. He had reached 100 demerit points by exceeding the 100 kilometres per hour speed limit on four occasions, and exceeding 80 kilometres per hour once. That was the fourth time Mr Collett had been suspended for accumulating excessive demerit points; and it appears from his history of infringements that most of the points he has accumulated in the past have been the result of speeding offences.

[3] Only nine days after the suspension was imposed, at around 12 noon on Saturday 12 December 2015, Mr Collett drove a motor vehicle along State Highway 1 at Orewa. The vehicle was seen speeding at 131 kilometres per hour by a mobile police patrol and Mr Collett was stopped. Mr Collett could not produce a driver’s licence and, after his details were obtained, Police checks revealed that his license was suspended. Mr Collett explained that he was driving his son to see his family.

[4] On 12 January 2016, Mr Collett pleaded guilty to one charge of driving a motor vehicle on a road while his driver’s licence was suspended, having been convicted at least twice previously of similar offending.1 It was, in fact, Mr Collett’s thirteenth conviction for driving while disqualified or suspended.

[5] It was not until 6 December 2016 that Mr Collett appeared in the District
Court before Judge DJ McDonald for sentence. He received 12 months' imprisonment and now appeals against that sentence.

1 Land Transport Act 1998, s 32(1)(c), s 32(4); maximum penalty 2 years’ imprisonment.

[6] As s 32(4)(a) of the Land Transport Act 1998 (the LTA) mandates that the offender be disqualified from holding a driver’s licence for one year upon conviction for the third or subsequent offence of driving while disqualified or suspended, Mr Collett applied for a substitution of a community-based sentence under s 94 of the LTA. Judge DJ McDonald refused the application on the grounds of public safety issues.

[7] In taking into account the purposes and principles of sentencing, the Judge identified the need to hold Mr Collett accountable, to deter and denounce his conduct, and to protect the public. This was particularly because Mr Collett drove so soon after suspension and at a speed that exhibited a clear disregard for the safety of other road users. The Judge noted that he…

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 Collett v Police

Details

AGLC: Collett v Police [2017] NZHC 489
Case: [2017] NZHC 489
Decision Date: 15 March 2017

CaseChat Overview and Summary

In Collett v Police, the High Court of New Zealand considered an appeal by Bryan Wayne Collett against a sentence imposed for driving while disqualified. Collett had accumulated excess demerit points, resulting in a three-month suspension of his driver's licence, which he breached by driving at high speed just nine days later. The central legal issues were whether the sentence of 12 months' imprisonment was manifestly excessive and whether it was the least restrictive outcome available. The court held that while the sentence was not manifestly excessive, the trial judge erred in his approach to sentencing by double-counting Collett's prior convictions. As a result, the court substituted a sentence of 30 weeks' imprisonment, with Collett being eligible for immediate release after serving half of this term. The court also declined to reduce the disqualification period for holding or obtaining a driver's licence, but it adjourned the matter for further consideration of whether to substitute a community-based sentence for the remainder of the disqualification period.

The court found that although the trial judge's decision to impose a custodial sentence was justified, he erred by considering Collett's prior convictions twice – once in setting the starting point and again in uplifting the sentence. The court emphasised that it is not permissible to double-count prior offending in this manner. As a result, the court substituted a sentence of 30 weeks' imprisonment, reflecting a more appropriate starting point and discount for an early guilty plea. The court also acknowledged that while it would have been preferable to reduce the disqualification period, it lacked the jurisdiction to do so under the Land Transport Act 1998. The court adjourned the matter to allow for an application to be made for a community-based sentence in lieu of the disqualification period.

Orders