Laird v Police - [2021] NZHC 2005

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2021-485-38

[2021] NZHC 2005

DAVIN PETER LAIRD

v

NEW ZEALAND POLICE

Hearing: 4 August 2021

Counsel:

L R Smith and Z S Meehan for Appellant A F Oliver for Respondent

Judgment:

4 August 2021

JUDGMENT OF CHURCHMAN J

Introduction

[1] On 2 June 2021, Mr Laird (the appellant) was convicted and sentenced in the Hutt Valley District Court to 120 hours’ community work and disqualified from driving for 12 months after being charged with driving while suspended (third or subsequent).1 Mr Laird had advanced an application under s 94 of the Land Transport Act 1998 so as to have his disqualification from driving substituted with a community- based sentence. That application was declined by the District Court Judge.

[2] Mr Laird now appeals that part of the sentence relating to the Judge’s decision to decline the s 94 application, on the basis that the Judge placed excessive weight on historic traffic infringement offences and their influence on the risk to public safety,

1 Police v Laird [2021] NZDC 12050.

LAIRD v NEW ZEALAND POLICE [2021] NZHC 2005 [4 August 2021]

and that the Judge failed to place sufficient weight on other relevant factors brought to his attention at sentencing.

[3] Alongside this appeal, Mr Laird seeks leave to adduce fresh evidence in the form of an affidavit that responds to some of the concerns noted by the sentencing Judge.

[4] The police do not oppose the inclusion of this fresh evidence, but they oppose the appeal, and submit that the Judge did not err in declining Mr Laird’s s 94 application. Mr Laird’s affidavit mainly details evidence already before the Court, such as his previous driving convictions, and the circumstances that led to his 28-day suspension in February 2021. However, the affidavit discusses those circumstances in more detail, and also includes evidence of remorse for his offending, and details his attendance at a defensive driving course. Given that the evidence seems credible and relatively fresh,2 and that the police are not opposed to its admission, I grant leave to adduce the affidavit.

[5] For the reasons set out below, I have come to the conclusion that the appeal should be allowed. I consider that the Judge placed too much emphasis on Mr Laird’s historical driving offences and erred in doing so. In considering s 94 anew, application of the factors under s 94(1)(b) to the circumstances of this case indicate that it would be appropriate to substitute a sentence of disqualification with a community-based sentence, namely one of community work.

Background

Factual background

[6] On 3 March 2021, Mr Laird (who at the time was employed as a truck driver) was driving a truck on State Highway One at Ōhakea. He was directed to stop at a weigh station, and during a routine inspection it was discovered that he was in fact subject to a 28-day suspension at the time. Mr Laird…

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 Laird v Police

Details

AGLC: Laird v Police [2021] NZHC 2005
Case: [2021] NZHC 2005
Decision Date: 4 August 2021

CaseChat Overview and Summary

In the High Court of New Zealand, Davin Peter Laird (the appellant) appealed against the decision of the Hutt Valley District Court, which had declined his application under s 94 of the Land Transport Act 1998 to substitute his disqualification from driving for a community-based sentence. The appeal was based on the argument that the District Court Judge had placed excessive weight on the appellant's historical traffic infringement offences and had failed to consider other relevant factors. The court granted the appellant leave to adduce fresh evidence in the form of an affidavit. The central legal issues were whether the District Court Judge had erred in principle by placing too much emphasis on the appellant's history of traffic infringements and whether, under a fresh consideration of the factors under s 94(1)(b), it would be appropriate to substitute a sentence of disqualification with a community-based sentence. The court found that the Judge had indeed erred in principle by placing too much emphasis on the appellant's historical offending, which had significantly decreased in the past five to ten years. The court concluded that it would be inappropriate to disqualify the appellant from driving, as his recent offending was not sequential and repetitive, and his employment as a truck driver constituted a pro-social factor. Consequently, the court substituted the sentence of disqualification with 70 hours of community work, making a total of 190 hours of community work, including a requirement to complete an impaired drivers' course.

Orders