Ferris v Police - [2024] NZHC 3548

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2024-419-000104

[2024] NZHC 3548

BETWEEN
BARNETT BURNS FERRIS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 21 November 2024

Appearances:

M J James on behalf of G A Walsh for Appellant L S P Glaser for Respondent

Judgment:

25 November 2024

JUDGMENT OF VAN BOHEMEN J

[appeal against sentence]

This judgment was delivered by me on 25 November 2024, at 4 pm.
Registrar/Deputy Registrar
……………………………..

Counsel/Solicitors: G A Walsh, Hamilton
Crown Solicitor, Hamilton

FERRIS v POLICE [2024] NZHC 3548 [25 November 2024]

[1] Barnett Ferris appeals his sentence of two years and two months’ imprisonment imposed by Judge R G Marshall in the District Court at Hamilton on 4 September 2024,1 having accepted a sentence indication given on 9 April 2024.2

[2] Mr Ferris was sentenced on one charge each of failing to stop for red and blue flashing lights,3 dangerous driving,4 driving while disqualified (third or subsequent offence),5 unlawful possession of a firearm,6 unlawful possession of ammunition,7 possession of methamphetamine for supply,8 possession of cannabis for supply,9 possession of a utensil,10 possession of LSD11 and breach of release conditions.12

[3]Mr Ferris advances his appeal on two grounds:

(a)the driving while disqualified charge should not have been laid; and

(b)double counting in the uplifts and the totality of the uplifts applied led to a sentence that was manifestly excessive.

Relevant background

[4] The following summary of the offending is taken from the police summaries of facts.

May 2023 offending

[5] On 12 May 2023, police observed Mr Ferris driving at excess speed, swerving and driving on the wrong side of the road. Police activated their siren and lights and

1      Police v Ferris [2024] NZDC 21372 [Sentencing notes].
2      Police v Ferris DC Hamilton CRI-2023-019-2555, 9 April 2024 [Sentence indication].
3      Land Transport Act 1998, s 52A(1)(a)(ii) and (3). Maximum penalty a fine not exceeding $10,000.
4      Section 35(1)(b). Maximum penalty three months’ imprisonment or a fine not exceeding $4,500.
5      Section 32(1)(a) and (4). Maximum penalty two years’ imprisonment or a fine not exceeding
$6,000.
6      Arms Act 1983, s 45(1). Maximum penalty four years’ imprisonment or a fine not exceeding
$5,000.
7      Section 22B. Maximum penalty fine not exceeding $10,000.
8      Misuse of Drugs Act 1975, s 6(1)(f) and (2). Maximum penalty life imprisonment.
9      Section 6(1)(f) and (2)(c). Maximum penalty eight years’ imprisonment.
10     Section 13(1)(a) and (3). Maximum penalty one year’s imprisonment or a fine not exceeding $500.
11     Section 7(1)(a) and (2). Maximum penalty six months’ imprisonment or a fine not exceeding $500.
12     Sentencing Act 2002, s 96(1). Maximum penalty one year’s imprisonment or a fine not exceeding
$2,000.

pursued Mr Ferris. Mr Ferris sped off, driving down the wrong side of the road and failed to stop.

August 2023 offending

[6] On 11 August 2023, Mr Ferris was staying at a motel in Hamilton. Police executed a search warrant. In the motel room, his vehicle and on…

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 Ferris v Police

Details

AGLC: Ferris v Police [2024] NZHC 3548
Case: [2024] NZHC 3548
Decision Date: 25 November 2024

CaseChat Overview and Summary

Barnett Ferris appeals his sentence of two years and two months' imprisonment imposed by Judge R G Marshall in the District Court at Hamilton on 4 September 2024, following a guilty plea. The appeal focuses on two main issues: whether the charge of driving while disqualified should have been laid and whether the uplifts and discounts applied by the Judge resulted in a manifestly excessive sentence. Ferris argues that the driving while disqualified charge should not have been laid because his disqualification period had expired. The Court agrees and quashes the conviction and sentence for driving while disqualified, substituting it with a conviction and discharge for driving while unlicensed. Ferris also argues that the uplifts applied by the Judge were disproportionate, resulting in a manifestly excessive sentence. The Court finds that the Judge intended to apply the uplift for traffic offending but likely overestimated the uplift. The Court concludes that a one-month uplift would have been more appropriate, resulting in an adjusted starting point of two years and seven months. However, the Court does not consider the end sentence of 26 months to be manifestly excessive, given the range of offending to which Ferris pleaded guilty. The Court allows the appeal in part, quashing the conviction and sentence for driving while disqualified and substituting it with a conviction and discharge for driving while unlicensed, while the remainder of the sentence stands.

Final orders: The conviction and sentence for driving while disqualified (third or subsequent offence) are quashed. In accordance with s 234(4) of the Criminal Procedure Act, the Court directs that Mr Ferris is convicted and discharged for driving while unlicensed. The remainder of Mr Ferris’s sentence stands.

Orders