Hoffman v Police - [2017] NZHC 1313

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

CRI 2017-406-5 [2017] NZHC 1313

BETWEEN
LACHLAN VALE HOFFMAN

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 13 June 2017

Counsel:

R M Gould for Appellant
S Revell for Respondent

Judgment:

14 June 2017

JUDGMENT OF ELLIS J

[1] On 10 April 2017 Mr Hoffman was sentenced on charges of intentional damage and driving while disqualified (third or subsequent) to five months’ community detention, 15 months’ intensive supervision (with judicial monitoring),
12 months’ disqualification, and $150 reparation.1

[2] He appeals against the Judge’s refusal to substitute the mandatory disqualification for a community-based sentence pursuant to s 94 of the Land Transport Act 1998. He does not appeal against the other aspects of the sentence.

[3] Section 94 relevantly provides:

(1) This section applies if—

(a) the offender has previously been ordered on conviction for an offence to be disqualified from holding or obtaining a driver licence; and

(b) the court, having regard to—

1 Police v Hoffman [2017] NZDC 8545.

HOFFMAN v POLICE [2017] NZHC 1313 [13 June 2017]

(i) the circumstances of the case and of the offender;
and

(ii) the effectiveness or otherwise of a previous order of disqualification made in respect of the offender; and

(iii) the likely effect on the offender of a further order of disqualification; and

(iv) the interests of the public,—

considers that it would be inappropriate to order that the offender be disqualified from holding or obtaining a driver licence; and

(c) the court considers that it would be appropriate to sentence the offender to a community-based sentence in accordance with Part 2 of the Sentencing Act 2002.

(2) Despite any provision of this Act that requires a court (in the absence of special reasons relating to the offence) to order a person convicted of an offence to be disqualified from holding or obtaining a driver licence, the court may instead make an order referred to in subsection (3) if this section applies.

(3) If the court sentencing an offender determines under this section not to make an order of disqualification,—

(a) the court must impose a community-based sentence on the offender; and

(b) the imposition of such a sentence does not limit or affect the power of the court to impose any other sentence for the offence that, in accordance with the provisions of the Sentencing Act 2002, it may impose in addition to the community-based sentence; and

(c) in determining the appropriate sentence to be imposed on the offender in respect of the offence, the court must take into account the gravity of the offence and the fact that the offender would otherwise have been liable to disqualification from holding or obtaining a driver licence.

(3A) For the purposes of subsection (3)(a), the court may impose a sentence of supervision or intensive supervision as a community-based sentence if—

(a) that sentence is appropriate; and

(b) a suitable programme is available; and

(c) the offender attends a suitable programme.

(4) This section does…

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 Hoffman v Police

Details

AGLC: Hoffman v Police [2017] NZHC 1313
Case: [2017] NZHC 1313
Decision Date: 14 June 2017

CaseChat Overview and Summary

Lachlan Hoffman was sentenced to five months’ community detention, 15 months’ intensive supervision (with judicial monitoring), 12 months’ disqualification, and $150 reparation. He appealed against the Judge’s refusal to substitute the mandatory disqualification for a community-based sentence pursuant to s 94 of the Land Transport Act 1998. The primary issue for the court was whether the District Court Judge had erred in refusing to substitute the disqualification period for a community-based sentence. The High Court considered that the Judge’s reasoning was suggestive of possible error. Firstly, the Judge seemed to treat the ineffectiveness of previous disqualifications as counting against a s 94 order, which was inconsistent with the purpose of the section. Secondly, the Judge did not give sufficient weight to the effect of disqualification on Hoffman’s job prospects, which could carry some weight in the analysis of the likely effect of disqualification on the offender. The High Court found that Hoffman’s circumstances did indicate that he fell into the class of people that s 94 was intended to target and assist. The court quashed the order for disqualification and allowed the appeal.

The High Court found that Hoffman’s circumstances did indicate that he fell into a class of people that s 94 was intended to target and assist. The cyclical pattern of repeat offending was present, and the public interest in assisting Hoffman to get a licence and enabling him to drive was clear. The court quashed the order for disqualification and allowed the appeal.

Orders