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Durbin v Police

Durbin v Police

Case [2023] NZHC 2450 1 September 2023

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IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2023-409-112

[2023] NZHC 2450

BETWEEN
BENJAMIN JOHN DURBIN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 31 August 2023

Counsel:

H L Beaven and O K Jarvis for Appellant G E R Alloway for Respondent

Judgment:

1 September 2023

JUDGMENT OF CHURCHMAN J

Introduction

[1] Benjamin Durbin, aged 42, appeals his sentence of three years’ imprisonment in respect of two charges of driving whilst disqualified, third or subsequent, to which he pleaded guilty.

[2]Judge Couch, in the Christchurch District Court convicted him of:1

(a)two counts of driving whilst disqualified, third or subsequent;2

1 Police v Durbin [2023] NZDC 11674.
2 Land Transport Act 1998, s 32(1)(a) and (4). The maximum penalty is two years’ imprisonment or a fine not exceeding $6,000.

BENJAMIN DURBIN v NEW ZEALAND POLICE [2023] NZHC 2450 [1 September 2023]

(b)two counts of obtaining by deception under $500;3

(c)five counts of theft of goods valued between $500 and $1000;4

(d)14 counts of theft under $500;5

(e)one count of possession of a cannabis plant;6

(f)one count of possession of methamphetamine;7 and

(g)one count of possession of methamphetamine utensils.8

Background

The offending

Driving whilst disqualified

[3] The District Court disqualified Mr Durbin from driving for two years from 16 February 2021. Mr Durbin drove on 27 April and 30 May 2022. He was convicted of two counts of driving whilst disqualified, third or subsequent, because he had a history of similar offending.

[4] In April 2022, he was towing a loaded tandem trailer which only had three wheels. The singular wheel on one side came off the trailer and collided with two oncoming cars.

[5] In May 2022, he was stopped by Police for using a mobile phone whilst driving.

3      Crimes Act 1961, ss 240(1)(a) and 241(c). The maximum penalty is three months’ imprisonment.
4      Section 223(c). The maximum penalty is one year imprisonment.
5      Sections 219 and 223(d). The maximum penalty is three months’ imprisonment.
6      Misuse of Drugs Act 1975, s 7(1)(a) and (2). The maximum penalty is three months’ imprisonment or a fine not exceeding $500.
7      Section 7(1)(a) and (2). The maximum penalty is six months’ imprisonment and a fine not exceeding $1,000.
8      Section 13(1)(a) and (3). The maximum penalty is one year imprisonment and a fine not exceeding
$500.

Obtaining by deception

[6] On 11 July 2022, the appellant advertised firewood for sale on Facebook Marketplace. The victim transferred $360 for the firewood into the appellant’s account but the appellant did not deliver the firewood as agreed or refund the victim’s money. The appellant repeated this deception to a second victim on 13 July 2022. He was convicted of two counts of obtaining by deception.

Theft and shoplifting

[7] On 1 November 2022, the appellant stole grocery items valued at $110.80 from Countdown supermarket in Hornby, Christchurch.

[8] On 2 November 2022, the appellant stole grocery items valued at $180.90 from Countdown supermarket on Moorhouse Avenue…

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 Durbin v Police

Details

AGLC: Durbin v Police [2023] NZHC 2450
Case: [2023] NZHC 2450
Decision Date: 1 September 2023

CaseChat Overview and Summary

Benjamin Durbin appeals his sentence of three years’ imprisonment for various charges, including multiple counts of driving while disqualified and theft. Durbin's appeal focuses on the severity of the sentence and the District Court's handling of aggravating and mitigating factors. The High Court must determine whether the sentence was manifestly excessive or wrong in principle. The court first examines the starting point for the driving while disqualified charges, considering the appellant's history of similar offenses and the temporal separation of the incidents. The court assesses whether the starting point was appropriately set and whether the cumulative approach was justified. Next, the court considers the mitigating factors, particularly the appellant's methamphetamine addiction and personal background, including childhood sexual abuse. The court must decide if the judge adequately accounted for these factors in the sentencing. Finally, the court evaluates whether the end sentence, taking into account all aggravating and mitigating factors, was within the appropriate range and whether it should be disturbed.

The High Court concludes that the District Court's starting point of 40 months’ imprisonment was appropriate, reflecting the appellant's extensive criminal history and the seriousness of the offenses. The court accepts the presence of aggravating factors, such as the appellant's extensive criminal history and the fact that the offenses occurred while he was on bail. Regarding mitigating factors, the court notes that the judge had already considered the appellant's methamphetamine addiction and other personal background factors, although not in as much detail as the appellant's counsel would have liked. The court finds the cultural report inadmissible as it was not fresh and not cogent in relation to the issues on appeal. The end sentence, after applying the appropriate discounts, was within the appropriate range, and there is no basis to disturb the decision. Therefore, the appeal is dismissed.

Orders