Hotton v Police - [2014] NZHC 1968

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2014-485-64 [2014] NZHC 1968

DOUGLAS JASON HOTTON

v

NEW ZEALAND POLICE

Hearing: 19 August 2014

Counsel::

A Frank for Appellant
M J Ferrier for Respondent

Judgment:

20 August 2014

JUDGMENT OF WILLIAMS J

[1] Mr Hotton was sentenced on 25 June 2014 in the Lower Hutt District Court as follows:

(a) driving while disqualified (third or subsequent): four months’ community detention; 12 months’ intensive supervision; one year disqualification commencing 22 January 2015;

(b) dangerous driving: 12 months’ intensive supervision; one year

disqualification commencing 22 January 2016; and

(c) failure to stop when followed by a police car with flashing lights:

$4,000 fine, three months’ disqualification commencing 22 January

2017.

HOTTON v NEW ZEALAND POLICE [2014] NZHC 1968 [20 August 2014]

[2] In the District Court the Judge imposed the disqualification periods cumulatively to begin in January next year, the date on which a pre-existing disqualification penalty is due to expire. The effect of the cumulative approach to sentencing is that Mr Hotton received a total disqualification period of 27 months which, because of its late start, will not expire until 27 April 2017.

[3] Mr Hotton appeals the disqualification element of his sentence arguing that the Judge ought not to have imposed those penalties cumulatively and that, even if that is wrong, the totality principle dictates that the period of disqualification is manifestly excessive.

[4] The police argue that it was open to the Court to impose cumulative disqualifications and that the period of disqualification, while stern, was not excessive.

The facts

[5] The three charges arise from a single incident in the early hours of 2 March

2014. The appellant, who was 20 years old at the time, was driving his car (having been serially disqualified) on Port Road. The police flashed their lights to signal him to pull over. The appellant stopped, but then pulled away as the police approached his car. There was a chase at up to 100km/h in a 50km zone. The appellant turned off his headlights, cut corners and drove on the wrong side of the road in his unsuccessful attempts to avoid capture. The police laid spikes. The appellant drove through them and then onto the wrong side of the road through a roundabout before finally being successfully stopped.

[6] The appellant is no stranger to this kind of offending. The police submissions record relevant criminal history as follows:

(a) driving while disqualified (third or subsequent) on 29 July 2013; (b) careless operation of a vehicle on 1 December 2012;

(c) driving with excess blood alcohol causing injury on 1 December

2012;

(d) failing to stop for red and blue flashing lights on 5 January 2011; (e) driving while license suspended on 5 January 2011;
(f) dangerous driving on 5 January 2011; and

(g) driving while license suspended on 2 December 2010.

[7] In addition, the appellant’s last appearance (bar this one) for sentence on a charge of driving while disqualified (third or subsequent)…

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.

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Details

Case: [2014] NZHC 1968
Decision Date: 20 August 2014

CaseChat Overview and Summary

The appellant, Douglas Jason Hotton, appeals against the sentence imposed by the Lower Hutt District Court for charges including driving while disqualified, dangerous driving, and failure to stop when followed by a police car with flashing lights. The District Court Judge imposed cumulative disqualification periods, resulting in a total disqualification of 27 months. The appellant argues that the cumulative approach was inappropriate and that the disqualification period was manifestly excessive. The police counter that cumulative disqualifications were permissible and that the period, while stern, was justified. The central issue was whether the cumulative disqualification periods were appropriate and if the total period of disqualification was excessive. The Court found that while it was open to the Judge to impose cumulative disqualifications, the total period of 27 months was excessive. The Court drew comparisons with similar cases and considered the totality principle, which requires the court to consider all penalties imposed together. The appeal was allowed, and the total disqualification period was reduced to 16 months, with the commencement date remaining unchanged.

Orders