Holden v Police - [2022] NZHC 100

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA

AHURIRI ROHE

CRI-2021-441-000036

[2022] NZHC 100

BETWEEN
TIMOTHY BROOKS HOLDEN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 2 February 2022

Counsel:

L Grant for the Appellant

J D Bridgman for the Respondent

Judgment:

4 February 2022

JUDGMENT OF GENDALL J

Solicitors:
L Grant, Barrister, Palmerston North J D Bridgman, Barrister, Napier

HOLDEN v NEW ZEALAND POLICE [2022] NZHC 100 [4 February 2022]

Introduction

[1] The appellant was charged with and pleaded in the District Court to one charge of operating a motor vehicle in a race or in an unnecessary exhibition of speed or acceleration on a road.1 He was sentenced in that Court at Napier on 3 November 2021. His sentence was two-fold, first being disqualified from holding or obtaining a driver’s licence for one year and six months (18 months) and secondly being sentenced to 150 hours’ community work.

[2] The appellant appeals against the first aspect of his sentence on the basis the disqualification from holding or obtaining a driver’s licence was manifestly excessive. He does not appeal against the sentence of community work.

[3]The Police oppose his appeal.

The offending

[4] At approximately 11:12pm on a winter’s night, Friday 23 July 2021 the appellant was drag racing another vehicle on Gimblett Road in Hastings, a no exit rural road in the middle of vineyards. He was recorded on police radar as driving at 176 km/h. In explanation the appellant said the police must have got him on the downward change, because he was actually going 195 km/h, hoping to beat the car next to him that he was racing.

District Court decision

[5] The appellant, as I have noted, was sentenced on 3 November 2021 to 150 hours’ community work and was disqualified from holding or obtaining a driver’s licence for one year and six months.2

[6] In his sentencing notes, the District Court Judge noted the appellant’s previous convictions:3

1 Land Transport Act 1998, s 36A(1)(a); maximum penalty three months’ imprisonment or $4,500 fine, and minimum disqualification period of six months.
2 Police v Holden [2021] NZDC 23377.
3 At [4].

(a)31 October 2001: dangerous driving;

(b)11 March 2003: careless driving causing injury;

(c)24 September 2004: operating a vehicle carelessly;

(d)10 August 2006: operating a vehicle with sustained loss of traction;

(e)[27 August] 2019: dangerous driving.4

[7] The Judge also recorded that for the 2019 dangerous driving the appellant received supervision for nine months and a driving disqualification; and that for the 2006 sustained loss of traction the appellant received imprisonment.5

[8] In sentencing the appellant, the Judge “suspect[ed]” the appellant has a “complex and complicated past.”6 The Judge noted that the appellant has “certainly been on the wrong side of things at times but … [was] not [t]here to be punished for those again”.7 However, the Judge concluded that “on any view of it … [it was] a very, very bad piece of driving.”8

[9] In disqualifying the appellant…

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 Holden v Police

Details

AGLC: Holden v Police [2022] NZHC 100
Case: [2022] NZHC 100
Decision Date: 4 February 2022

CaseChat Overview and Summary

The case of Holden v Police involved an appeal by Timothy Brooks Holden against the sentence imposed by the District Court for operating a motor vehicle in a race or in an unnecessary exhibition of speed or acceleration on a road. The appellant argued that the disqualification from holding or obtaining a driver's licence for one year and six months was manifestly excessive. The Police opposed the appeal. The High Court was required to determine whether the sentence was manifestly excessive and outside the range available to the sentencing Judge.

The Court noted that the appellant was drag racing another vehicle at approximately 11:12pm on a winter’s night, reaching a speed of 176 km/h. The District Court Judge noted the appellant's previous convictions and imposed a sentence of 150 hours of community work and disqualified the appellant from driving for one year and six months. The appellant argued that the disqualification period was manifestly excessive, especially when coupled with the 150 hours of community work, making the overall sentence package manifestly excessive. The appellant also argued that the Judge erred in not applying a 25 per cent discount for the appellant’s early guilty plea.

The Court concluded that the disqualification period of 18 months was not manifestly excessive. The Court noted that the circumstances of the offending were serious and posed a real risk to the appellant, the other driver, and the public. The Court also noted that the appellant had a history of driving-related offending, indicating a risk of future offending and a potential risk to the public. The Court accepted the respondent’s argument that the omission of an express guilty plea discount did not lead to a manifestly excessive outcome, as the focus must be on the final sentence and whether that was in the available range.

The Court dismissed the appeal, concluding that the disqualification period of 18 months was within range and achieved the balance between limiting the duration of any disqualification while maintaining public safety. The Court noted that the Judge had taken into account the appellant’s personal circumstances, including his need to visit his children in Palmerston North, in imposing the disqualification period.

Orders