Dwyer-Majer v Police - [2017] NZHC 2824

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CRI-2017-470-000033 [2017] NZHC 2824

BETWEEN
NATALIE JANE DWYER-MAJER

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 14 November 2017

Appearances:

R Webby for the Appellant
A Shore for the Respondent

Judgment:

17 November 2017

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on 17 November 2017 at 12:15 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar
Date:

Solicitors: Webby & Associates, Tauranga
Hollister-Jones Lellman (Office of the Crown Solicitor), Tauranga

DWYER-MAJER v NZ POLICE [2017] NZHC 2824 [17 November 2017]

[1] On 29 September 2017, Natalie Jane Dwyer-Majer was convicted of driving while disqualified for the third or subsequent occasion and sentenced to 100 hours community work. She was also disqualified from driving for one year.

[2] She now appeals against sentence on the basis that the District Court Judge should have granted her application to substitute a community-based sentence for the otherwise mandatory minimum period of disqualification of one year pursuant to s 94 of the Land Transport 1998.

Factual background

[3] The summary of facts records that on 26 May 2017, Ms Dwyer-Majer was suspended from driving for three months from 26 May 2017 until 25 August 2017 for excess driver demerit points. At about 9.41 am on Tuesday, 13 June 2017, Ms Dwyer- Majer was driving a Honda Odyssey motor vehicle north along State Highway 1 in Cambridge. At this time she was stopped by the Police for a routine vehicle, licence and sobriety check. When spoken to, she failed to produce a drivers licence admitting straight away to being suspended from driving. Subsequent enquiries confirmed her identity and the fact that she was a suspended driver.

[4] In an affidavit dated 22 September 2017 filed in support of the s 94 application, Ms Dwyer-Majer explained that she was travelling to Field Days at Mystery Creek, Hamilton, because she was interested in purchasing some possum traps and obtaining some information on skinning possums. She was also going to look at buying a plucker and to source people who may buy possum carcasses from her. She explained that she had been running a possum trapping business since April and had about 50 possum traps at various locations from Waitamo to Katikati.

District Court judgment

[5] In his sentencing notes, Judge C J Harding noted that Ms Dwyer-Majer had, in effect, decided to drive because it suited her with regard to the possum trapping business she was starting. He also noted that she knew full well that she was disqualified and that there was no discernible urgency for her driving. He concluded she drove because it was convenient.

[6] Judge Harding stated that this was a disturbing attitude which was somewhat reflected in the history which she had, in particular on demerit point and licence suspensions, which covered two pages with regular appearances in that respect in
2013, 2014, 2015 and 2016. Judge Harding was…

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.

Keep reading for free

Create a free CaseChat account to read Dwyer-Majer v Police and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] NZHC 2824
Decision Date: 17 November 2017

CaseChat Overview and Summary

The appellant, Natalie Jane Dwyer-Majer, appeals against her conviction for driving while disqualified and the sentence imposed by the District Court. The primary legal issue before the court was whether the District Court judge erred in declining to substitute a community-based sentence for the mandatory minimum period of disqualification under section 94 of the Land Transport Act 1998. The court considered whether the District Court judge appropriately exercised his discretion under section 94 by taking into account all relevant factors, including the circumstances of the case, the effectiveness of previous disqualification orders, the likely effect of a further disqualification on the appellant, and the interests of the public. The High Court found that the District Court judge did not err in declining to substitute a community-based sentence, as the public interest in enforcing transport laws and ensuring road safety outweighed the appellant's personal circumstances.

The High Court's reasoning was based on the appellant's history of disregarding transport laws, including multiple previous convictions for drink/driving, driving while suspended, and accumulating speeding demerits. The court noted that the appellant's disregard for transport laws posed a risk to public safety, particularly in rural areas where speeding is a concern. Furthermore, the court considered that the public interest in enforcing court orders and maintaining the deterrent effect of disqualification as a penalty was significant. The High Court concluded that there was no error in the sentence imposed by the District Court, and the appeal was dismissed.

This case highlights the importance of considering all relevant factors when exercising discretion under section 94 of the Land Transport Act 1998. The court must balance the personal circumstances of the offender with the interests of the public in enforcing transport laws and ensuring road safety. In this case, the High Court found that the District Court judge appropriately exercised his discretion by taking into account the appellant's history of disregarding transport laws and the significant public interest in enforcing court orders.

Orders