Gilbert v Police - [2014] NZHC 508

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-000024 [2014] NZHC 508

BETWEEN MARTIN NICHOLAS GILBERT Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 17 March 2014

Appearances: M W Winterstein for Appellant
W N Fotherby and K J Barry for Respondent

Judgment: 17 March 2014

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 19 March 2014 at 3.00 pm
pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date………………………..

GILBERT v NZ POLICE [2014] NZHC 508 [17 March 2014]

Introduction

[1] Section 94 of the Land Transport Act 1998 provides that, despite any provision of the Act requiring a person convicted of an offence to be disqualified from holding or obtaining a driver’s licence, the Court may instead make an order imposing a community-based sentence. Martin Nicholas Gilbert appeals Judge Moses’ refusal to grant his application under s 94 following conviction on a charge of driving with excess breath alcohol (third and subsequent).

[2] The granting of an application under s 94 involves the exercise of a discretion. In an appeal against the exercise of a discretion it is for the appellant to show that the Judge made an error of law either by taking irrelevant matters into account, failing to take relevant matters into account, applying a wrong legal principle or otherwise making a decision that was plainly wrong.

[3] The grounds for Mr Gilbert’s appeal is that the Judge made errors of law in holding that an order under s 94 should not be made because Mr Gilbert could apply for a limited licence and in failing to take into account the fact that the Police were neutral as regards his application.

[4] In addition, Mr Gilbert sought to adduce further evidence for the purposes of the appeal, intended to demonstrate the existence of another relevant factor that should be taken into account. The Crown did not oppose the application and I granted leave to file the affidavit.

Sentencing in the District Court

[5] Mr Gilbert was stopped on Te Irirangi Drive in Manukau City on a Sunday morning in August 2013. He was found to have a breath alcohol level of 683 micrograms of alcohol per litre of breath. He pleaded guilty on 16 January 2014 in the District Court at Manukau.

[6] In sentencing, Judge Moses was clearly concerned about Mr Gilbert’s drink- driving history. The present offence was his seventh conviction for drink-driving, though some were historical: 1986 (excess blood alcohol level of 99), 1998 (excess breath alcohol level of 600), 1993 (excess blood alcohol level of 920), 1994 (excess breath alcohol level of 863 and 1010) and 2001 (excess breath alcohol level 1030).

Having regard to the age of these convictions, particularly the 12 year gap between the present offending and next most recent the Judge imposed a sentence of 250 hours community work.

[7] Judge Moses then turned to consider whether he should also disqualify Mr Gilbert or grant his application under s 94, substituting…

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 Gilbert v Police

Details

AGLC: Gilbert v Police [2014] NZHC 508
Case: [2014] NZHC 508
Decision Date: 17 March 2014

CaseChat Overview and Summary

Martin Nicholas Gilbert appeals the District Court's decision to disqualify him from holding or obtaining a driver's licence for one year and one day, instead of granting his application under section 94 of the Land Transport Act 1998, which allows for a community-based sentence in certain circumstances. The appeal focuses on whether the District Court Judge made errors of law in concluding that Mr Gilbert could apply for a limited licence and in failing to consider the Police's neutrality regarding his application. Additionally, Mr Gilbert sought to adduce further evidence for the appeal to demonstrate another relevant factor that should be taken into account.

The High Court found that the District Court Judge erred in concluding that a limited licence would be feasible for Mr Gilbert, given the unpredictable nature of his employment. The Court also found that the alternatives suggested by the Judge, such as having his son drive him or using a taxi, were not practical solutions. The Court considered Mr Gilbert's history of drink-driving offences but also took into account his long employment record, his role as the sole income earner for his large family, and his efforts to address his alcohol problem. The Court concluded that the consequences of disqualifying Mr Gilbert from driving would outweigh the benefits to the public, as it would likely result in the loss of his employment and put his family at risk.

The appeal was allowed, and the order for disqualification was quashed. The matter was remitted to the District Court for the imposition of an appropriate community-based sentence. The final orders of the Court were to quash the District Court's order for disqualification and to remit the matter for resentencing.

Orders