Nicholls v Police - [2017] NZHC 2209

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2017-404-0271 [2017] NZHC 2209

BETWEEN
WILLIAM RON NICHOLLS

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 11 September 2017

Counsel:

G Haydn and D B Dow for Appellant
E J Smith for Respondent

Judgment:

12 September 2017

JUDGMENT OF HEATH J

This judgment was delivered on 12 September 2017 at 4.00pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:
Public Defence Service, Waitakere
Meredith Connell, Auckland

NICHOLLS v NEW ZEALAND POLICE [2017] NZHC 2209 [12 September 2017]

The appeal

[1] As a result of an incident that occurred on 9 March 2017, Mr Nicholls pleaded guilty to one charge of refusing to permit a blood sample to be taken after having been required to do so lawfully by an enforcement officer. The charge was brought on the basis that Mr Nicholls had, at least twice previously, been convicted of a specified offence involving alcohol impaired driving.1

[2] Mr Nicholls was sentenced in the District Court at Waitakere on 17 July

2017. Judge Glubb imposed a sentence of five months’ community detention, 100 hours’ community work and disqualified Mr Nicholls indefinitely from holding or obtaining a driver licence.2

[3] Mr Nicholls appeals against the sentencing Judge’s decision to impose an indefinite disqualification, as opposed to one disqualifying him from holding a driver licence for a period of three months, and authorising him to apply for an alcohol interlock licence at the end of that period.3 There is no challenge to the sentences of community detention and community work.

Facts

[4] At about 9.40pm on 9 March 2017, Mr Nicholls was driving a motor vehicle along Great North Road, Pt Chevalier. The vehicle was seen crashing into a traffic light. A member of the public alerted police to that event.

[5] Police officers arrived at the scene. Mr Nicholls was observed to exhibit signs of recent alcohol consumption. Despite being lawfully requested to do so, he refused to complete an evidential breath test. On being requested to give a blood sample, that too was refused. Nevertheless, Mr Nicholls acknowledged that he had been drinking alcohol, and had been driving the car.

[6] This was Mr Nicholls’ fourth conviction for alcohol impaired driving related offending. On the previous three occasions:

1      Land Transport Act 1998, ss 60(1)(a) and (3), set out at para [10] below.
2      New Zealand Police v Nicholls [2017] NZDC 17873, at paras [11] and [12].
3      The different natures of those sentences is explained at paras [11]–[13] below.

(a) On 27 August 2011, Mr Nicholls had been driving with an excess breath alcohol concentration of 664 micrograms of alcohol per litre of breath.

(b)On 18 September 2015, Mr Nicholls refused to provide a blood specimen when lawfully requested to do so.

(c) On 29 November 2015, Mr Nicholls was driving with an excess breath alcohol concentration of 543 micrograms of alcohol per litre of breath.

[7]…

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: [2017] NZHC 2209
Decision Date: 12 September 2017

CaseChat Overview and Summary

In the High Court of New Zealand, William Ron Nicholls appealed against his sentencing by Judge Glubb in the District Court at Waitakere. The appeal concerned the imposition of an indefinite disqualification from holding a driver’s licence, instead of a three-month disqualification with the opportunity to apply for an alcohol interlock licence at the end of that period. The court had to determine whether the District Court Judge erred in not making an alcohol interlock order and whether the appeal should be allowed under section 250 of the Criminal Procedure Act 2011.

The court found that the District Court Judge exercised a judicial discretion not to make an alcohol interlock order due to a lack of confidence in Nicholls' ability to comply with such an order. The court also noted that the Judge took into account Nicholls' failure to seek a licence at the end of the initial three months stand down period and the fact that Nicholls was driving while under the influence of alcohol and subject to a disqualification order. The court held that the Judge made no error of law, took account of all relevant considerations, and made a decision that was open to him on the available information. Therefore, the appeal was dismissed.

Orders