McKenzie v The King

[2023] NZHC 2778

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CRI-2023-454-19

[2023] NZHC 2778

BETWEEN

CODY LEE McKENZIE

Appellant

AND

THE KING

Respondent

Hearing:

4 October 2023 (teleconference)

Counsel:

T E Hesketh for Appellant

B Vanderkolk for Respondent

Judgment:

4 October 2023

JUDGMENT OF ISAC J

[Sentence appeal]

[1]    Mr McKenzie was convicted of driving while disqualified on a third or subsequent occasion. At sentencing trial counsel sought to avoid a disqualification order on the “special reasons” ground in s 81 of the Land  Transport Act  1998. Judge Moss declined that application and disqualified Mr McKenzie from driving for 12 months. While accepting that the Judge was correct to decline the application under s 81, Mr McKenzie now appeals against his sentence on the basis that his counsel should have sought an order under s 94 of the Act, which allows the court to substitute disqualification with a community-based sentence.

[2]    Very responsibly, the Crown does not take issue with Mr McKenzie having the opportunity to advance an application under s 94. However, given the appellant takes no issue with the Judge’s decision and is effectively seeking to bring a fresh application, the Crown considers there is no error in the District Court’s decision and the High Court does not have jurisdiction to hear the s 94 application at first instance.

McKENZIE v R [2023] NZHC 2778 [4 October 2023]

The correct procedure, Ms Pairman submits, is for the matter to be remitted to the District Court.1 At a teleconference with counsel this morning, Mr Hesketh for the appellant accepted that this is the appropriate course of action.

[3]    Having heard from counsel, I agree. The appeal is dismissed, and the proceeding is remitted to the District Court. In accordance with s 177(3) of the Criminal Procedure Act 2011, it will be for the Judge to determine the application for a rehearing in the first instance.2

Isac J

Solicitors:

Tim Hesketh Law Ltd, Palmerston North for Appellant BV+A, Palmerston North for Respondent

1      Pursuant to s 177(1)(a)(ii) of the Criminal Procedure Act 2011.

2      While it is entirely for the District Court to determine its own procedures, it may be possible for Mr McKenzie to advance his application for a rehearing at the same time he makes an application under s 94 of the Land Transfer Act.