McHardy v Police - [2023] NZHC 2808

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2023-412-78

[2023] NZHC 2808

BETWEEN
RANALD JAMES MCHARDY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 5 October 2023

Appearances:

K Lawrence for the Appellant M Brosnan for the Crown

Judgment:

6 October 2023

Reissued:

30 January 2024

JUDGMENT OF HARLAND J

[1] Ranald McHardy appeals against a decision of Judge Smith in the Alexandra District Court of 20 July 20231 declining his application upon sentence to impose a sentence of community work under s 94 of the Land Transport Act 1998 (LTA) as opposed to disqualifying him for a period of six months. The Crown opposes the appeal.

Background

[2] Mr McHardy pleaded guilty to three charges, all of which occurred on 17 August 2022. They comprise a breach of a protection order, 2 an assault3 and driving

1      Police v McHardy [2023] NZDC 17286.
2      Family Violence Act 2018, ss 90(a), 9 and 112(1)(a).
3      Crimes Act 1961, s 194A.

MCHARDY v POLICE [2023] NZHC 2808 [6 October 2023]

with excess breath alcohol.4 The first two charges concern offending against a family member; the latter was a result of testing undertaken when the Police stopped him driving shortly after the incident involving the victim.

[3] Although not directly relevant to the issue on appeal, the background provides some context to it. It was referred to by the District Court Judge and is now briefly summarised by me.

[4] At about 8.30 pm on 17 August 2022, Mr McHardy was at his home address in Alexandra. He had been consuming alcohol with an associate throughout the evening and was intoxicated. A number of others were at the address. The victim returned home from work and the pair became involved in a heated argument over money it was alleged Mr McHardy owed her for a box of beer. The argument escalated and became physical. During it, Mr McHardy head-butted the victim in the face, causing the bridge of her nose to split open. She required treatment at hospital.

[5] The breach of a protection order charge arose because the victim was the subject of a final protection order made in her favour against Mr McHardy in 2012, which has since expired. There is no suggestion she had not agreed to living at Mr McHardy’s address despite the existence of the protection order.

[6] The Police arrived to answer the assault and observed Mr McHardy driving his vehicle on the road. The summary of facts records that, during “the interaction, it became clear he was affected by alcohol”. Mr McHardy was required to undergo a breath screening test which yielded a positive result. An evidential breath test was then undertaken which recorded a reading of 600 micrograms of alcohol per litre of breath. Mr McHardy denied assaulting the victim and stated he had driven to get away from the situation.

District Court decision

[7] While agreeing with Mr McHardy’s assertion that he had to get…

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: [2023] NZHC 2808
Decision Date: 6 October 2023

CaseChat Overview and Summary

Ranald James McHardy appeals against a decision of Judge Smith in the Alexandra District Court of 20 July 2023 declining his application upon sentence to impose a sentence of community work under s 94 of the Land Transport Act 1998 (LTA) as opposed to disqualifying him for a period of six months. The Crown opposes the appeal. The background to the case involves McHardy pleading guilty to three charges of breaching a protection order, assault and driving with excess breath alcohol. The District Court Judge considered the relevant criteria under s 94 of the LTA and imposed a six-month disqualification on McHardy. The appeal focuses on whether the Judge exercised her discretion correctly in denying McHardy's application for a community-based sentence instead of disqualification.

The legal issue in this appeal is whether the District Court Judge wrongly exercised her discretion in denying McHardy's application under s 94 of the LTA for a community-based sentence instead of a six-month disqualification. The court must consider whether the Judge took into account irrelevant considerations, failed to have regard for material considerations, erred in principle or made a plainly incorrect decision. The court must also consider the four criteria outlined in s 94(1)(b) of the LTA which must be considered when determining whether to impose a community-based sentence instead of disqualification.

The court found that the District Court Judge did not err in her exercise of discretion in denying McHardy's application for a community-based sentence. The Judge thoroughly considered the four criteria outlined in s 94(1)(b) of the LTA. The court found no identifiable error in the Judge's approach or judgment. The facts of this case did not warrant a community-based sentence in light of McHardy's history of offending and lack of remorse.

The appeal is dismissed. The decision of the District Court stands and McHardy's six-month disqualification from driving is upheld.

Orders