Masters v Police - [2020] NZHC 33

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-483

[2020] NZHC 33

BETWEEN
TATUM MASTERS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 17 December 2019

Appearances:

H Croucher for the Appellant A Devathasan for the Police

Judgment:

18 February 2020

JUDGMENT OF POWELL J

This judgment was delivered by me on 18 February at 3.30 pm Registrar/Deputy Registrar
Date:

Solicitors/Counsel: H Croucher, Auckland
Crown Solicitor, Auckland

MASTERS v NEW ZEALAND POLICE [2020] NZHC 33 [18 February 2020]

[1] On 23 October 2019 the appellant, Tatum Masters, was sentenced to six months’ home detention and disqualified from holding or obtaining a driver’s licence for 12 months’ in relation to the following charges:

(a)possession of a firearm;1

(b)possession of ammunition;2 and

(c)driving while disqualified (third or subsequent).3

[2] The offending arose on 15 December 2018, Ms Masters was driving a silver BMW in Manurewa. The vehicle had just been reported to Police in relation to suspicious activity by a member of the public. Police stopped the vehicle and discovered Ms Masters was disqualified from driving.

[3] Police then invoked a search and surveillance search of the vehicle and located a shotgun in the back, behind the driver’s seat. The shotgun was wrapped in a white towel and had five shotgun cartridges loaded into the firearm.

[4] Ms Masters appeals against one aspect only of Judge Lovell-Smith’s decision, being the refusal to grant her application made pursuant to s 94 of the Land Transport Act 1998 (“the Act”), to receive a community-based sentence in lieu of disqualification (“the s 94 decision”). Judge Lovell-Smith declined the application in the following terms:4
I deal with the s 94 first. I have considered that very carefully. You have just got your learner’s license, and I accept the police submission you are some distance from obtaining your full license, and this is your thirteenth conviction for driving while disqualified which shows you take no notice of Court orders. The reason why you have to have a license to drive is for the protection of the public. I am not going to allow that application and you are further disqualified today for 12 months, which is the minimum I can impose from today’s date.

1      Arms Act 1983, s 45(1): maximum penalty of four years’ imprisonment.
2      Section 51: maximum penalty of three years’ imprisonment.
3      Land Transport Act 1998, ss 32(1)(a) and 32(4): maximum penalty of two years’ imprisonment or a $6,000 fine and 12 months’ mandatory disqualification.
4      New Zealand Police v Tatum Beverley Masters [2019] NZDC 21502 at [6].

[5] Ms Masters, through Ms Croucher, contends that Judge Lovell-Smith erred in failing to have regard to the mandatory factors in s 94(1)(b), and in particular that the Judge failed to take into account the effectiveness of previous orders of disqualification; the likely effect of further disqualification; and the interests of the public in having Ms Masters become a licensed driver.

[6] Ms Croucher submitted having…

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 Masters v Police

Details

AGLC: Masters v Police [2020] NZHC 33
Case: [2020] NZHC 33
Decision Date: 18 February 2020

CaseChat Overview and Summary

Tatum Masters appeals against the refusal of the District Court to grant her application made pursuant to s 94 of the Land Transport Act 1998, to receive a community-based sentence in lieu of disqualification. Ms Masters was sentenced to six months' home detention and disqualified from holding or obtaining a driver’s licence for 12 months in relation to the charges of possession of a firearm, possession of ammunition, and driving while disqualified (third or subsequent). Ms Masters contends that the District Court Judge erred in failing to have regard to the mandatory factors in s 94(1)(b), and in particular that the Judge failed to take into account the effectiveness of previous orders of disqualification; the likely effect of further disqualification; and the interests of the public in having Ms Masters become a licensed driver. The High Court held that the appeal must be dismissed. The Court noted that the relevant law provides that the s 94 decision is an exercise of the sentencing judge's discretion. The discretion is broad and the consideration consistent with the application of s 94 is the compassionate appreciation that recidivist drivers who cannot restrain themselves from driving throughout periods of disqualification may deserve an opportunity to break the chain of circumstances causing their offending, namely on-going periods of disqualification. The Court noted that Ms Masters has not demonstrated any commitment to change her behaviour, or otherwise progress her driver’s licence, so as to prevent the same type of offending in the future. The Court held that it is clear Ms Masters has not demonstrated any commitment to change her behaviour, or otherwise progress her driver’s licence, so as to prevent the same type of offending in the future. Therefore, it is not in the public interest to let Ms Masters back on the road prior to the expiry of the current sentence of disqualification.

The final orders of the Court were that the appeal is dismissed.

Orders