Evans v Police - [2018] NZHC 2660

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2018-412-000022

[2018] NZHC 2660

BETWEEN
KANE STEPHEN EVANS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 11 October 2018

Appearances:

L C Denton for Appellant C Ure for Respondent

Judgment:

15 October 2018

JUDGMENT OF GENDALL J

EVANS v NZ POLICE [2018] NZHC 2660 [15 October 2018]

Introduction

[1] The appellant, Mr Evans pleaded guilty to one charge of driving whilst disqualified (third or subsequent) and one charge of providing false information. On 21 June 2018, Judge Turner sentenced him to six months’ community detention, imposed a fine of $1000, ordered payment of Court costs of $130, and disqualified him from holding or obtaining a driver’s licence for the minimum period of one year and one day. On the charge of providing false information he was convicted and discharged.

[2] Mr Evans appeals his licence disqualification sentence only. He brings this appeal on the basis that, contrary to his instructions, his lawyer did not advance an argument under s 94 of the Land Transport Act 1998 whereby the disqualification would be substituted by a community-based sentence, having regard to all the circumstances prevailing in his case.

Background

[3] On Wednesday 20 September 2017 at approximately 11am, Mr Evans, aged 21 at the time, was driving on the Omakau Chatto Creek road when he was stopped by police for a mobile breath screening test. When asked to give his details, Mr Evans provided a temporary paper driver’s licence in the name of Corey Brent Ross, and gave an address and Mr Ross’ date of birth. Mr Evans was issued two vehicle infringements in the name of Mr Ross and was told he was free to go. A short time later, inquiries established that the driver was in fact Mr Evans. He was spoken to later that day and admitted giving Mr Ross’ details, and that he was a disqualified driver.

[4] Ms Denton, Mr Evans’ counsel for this appeal, was the duty solicitor when Mr Evans first appeared in the District Court on 26 September 2017. She spoke to Mr Evans and indicated that he should advance an application under s 94 to substitute disqualification for community work. She gave him advice on actions to take regarding a s 94 application, including appropriate licencing and securing work. At this point guilty pleas and convictions were entered, and Mr Evans was remanded on bail to 28 November 2017.

[5] Mr Evans was then assigned a different lawyer, Russell Checketts, as his legal aid counsel for sentencing. On 9 November 2017, Mr Checketts emailed the District Court to advise that Mr Evans would not be continuing with the s 94 application. In Mr Evans’ affidavit he advises that he never instructed this. Mr Checketts says that he understood that a s 94 application was not to be pursued, and the whole focus was on keeping Mr Evans from being sentenced to a period of imprisonment. His later…

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 Evans v Police

Details

AGLC: Evans v Police [2018] NZHC 2660
Case: [2018] NZHC 2660
Decision Date: 15 October 2018

CaseChat Overview and Summary

In Evans v Police, the appellant, Mr Evans, appealed the sentence imposed on him by the District Court for driving while disqualified. Mr Evans had previously been disqualified from holding or obtaining a driver's licence on three occasions. He was caught driving on a third occasion, providing false information to the police. At sentencing, Mr Evans' lawyer did not argue for a community-based sentence to be substituted for the licence disqualification, despite instructions from Mr Evans to do so. Mr Evans now appeals against the licence disqualification sentence. The central issue is whether the High Court should consider the merits of the application under s 94 of the Land Transport Act 1998 to substitute the disqualification with a community-based sentence, or whether the matter should be remitted back to the District Court for consideration. The High Court found that there was an error in the District Court proceedings. While the High Court could consider the merits of the application, it decided to remit the matter back to the District Court for reconsideration in light of the s 94 application. The High Court noted that Mr Evans had been convicted of another driving while disqualified offence since the original sentencing, and that the District Court would be sentencing him on this offence in the near future. The High Court considered it appropriate to remit the matter back to the District Court, allowing the s 94 consideration to proceed in tandem with the sentencing on the eighth offence. The appeal was allowed, the sentence quashed, and the proceeding remitted back to the District Court for rehearing in light of the s 94 application.

Orders