Flavell v Police - [2021] NZHC 1710

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2021-409-000066

[2021] NZHC 1710

BETWEEN
JOSEPH FLAVELL

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 8 July 2021

Appearances:

J M Campbell on instructions for J D Lucas for Appellant S M H McManus for Respondent

Judgment:

9 July 2021

JUDGMENT OF GENDALL J

This judgment was delivered by me on 9 July 2021 at 12 p.m. pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

FLAVELL v NEW ZEALAND POLICE [2021] NZHC 1710 [9 July 2021]

Introduction

[1] The appellant, Joseph Flavell, was convicted in the District Court on charges of driving whilst disqualified (third or subsequent) (2),1 failure to answer bail,2 and breach of release conditions.3 He was sentenced by Judge Couch on 7 May 2021 to four months’ home detention, 100 hours’ community work and disqualified from holding a driver licence and from having an interest in any motor vehicle for 12 months.4

[2] Mr Flavell appeals solely against the disqualification from driving sentence. He does so on the ground the District Court Judge failed to give adequate consideration to the s 94 Land Transport Act 1998 application, namely that Mr Flavell required his licence to retain his employment.

Background

[3] On 7 May 2020 Mr Flavell was disqualified from driving for a period of one year. On two occasions Mr Flavell was apprehended driving a vehicle in breach of that disqualification. On 19 November 2020 Mr Flavell was found driving a vehicle on a suburban road. When stopped by police he attempted to avoid liability by swapping seats with his passenger. On 16 February 2021 he was apprehended driving a vehicle again on a suburban road in the early hours of the morning.

[4] On 14 January 2021 Mr Flavell was charged with breaching his prison release conditions when he repeatedly failed to report to his probation officer as directed.

[5] On 12 February 2021 Mr Flavell failed to appear in the District Court and was charged with breaching the conditions of his bail.

1      Land Transport Act 1998, ss 32(1)(a) and 32(4).
2      Sentencing Act 2002, s 96(1).
3      Bail Act 2000, s 38(a).
4      Police v Flavell [2021] NZDC 9564.

District Court decision

[6] Judge Couch noted the driving offences were Mr Flavell’s fifth and sixth convictions for like offending in four years. The Judge regarded the gravity of the driving offending as serious. His Honour noted Mr Flavell had purchased a vehicle shortly after his release from prison in November 2020 and began driving. The Judge considered this showed a contempt for court orders. A starting point of 12 months’ imprisonment was adopted for the two offences.

[7] Regarding the breach of release conditions, the Judge saw this as serious and applied an uplift of four months’ imprisonment. An additional uplift of two months was applied in respect of the charge of failing to answer bail. This brought the overall starting point to 18…

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 Flavell v Police

Details

AGLC: Flavell v Police [2021] NZHC 1710
Case: [2021] NZHC 1710
Decision Date: 9 July 2021

CaseChat Overview and Summary

Joseph Flavell appealed against the disqualification from driving sentence imposed by the District Court. The appeal centred on the District Court Judge's failure to adequately consider the application under s 94 of the Land Transport Act 1998, specifically that Mr Flavell required his licence to retain his employment as a labourer. The District Court Judge had imposed a 12-month disqualification period for driving whilst disqualified, failure to answer bail, and breach of release conditions. The legal issue was whether the District Court Judge had adequately considered the factors under s 94(1)(b) of the Act in deciding to impose a disqualification period instead of a community-based sentence.

The High Court found that the District Court Judge had not explicitly set out the relevant considerations in his sentencing decision and had failed to articulate that he had considered the matters in s 94(1)(b). The Court considered the circumstances of the case and the offender, the effectiveness or otherwise of a previous order of disqualification made in respect of the offender, the likely effect on the offender of a further order of disqualification, and the interests of the public. The Court found that the likely effects of continued disqualification on Mr Flavell's employment were significant, and that it was in the interests of justice to exercise discretion under s 94. The Court allowed the appeal and quashed the 12-month disqualification sentence, replacing it with a sentence of 50 hours' community work in addition to the existing 100 hours' community work and four months' home detention.

The final orders of the High Court were that Mr Flavell's appeal was allowed, the 12-month disqualification of his driver licence was quashed, and a sentence of 50 hours' community work was imposed in substitution under s 94(3)(a) of the Land Transport Act. The existing sentence of 100 hours' community work and four months' home detention remained unchanged.

Orders