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Nicholson v Police

Nicholson v Police

Case [2021] NZHC 960 3 May 2021

Sentencing

Substitution of Sentence

Disqualification from Driving

Public Interest

Rehabilitation

Criminal Law

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IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CRI-2021-463-20

[2021] NZHC 960

BETWEEN
ETHAN JOHN NICHOLSON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:
3 May 2021

(Heard at Rotorua)

Appearances:

T Clee (via VMR) for the Appellant D McWilliam for the Respondent

Judgment:

3 May 2021

ORAL JUDGMENT OF GAULT J

Solicitors / Counsel:
Mr T Clee, Barrister, Auckland
Mr D McWilliam, Pollett Legal Ltd, Office of the Crown Solicitor, Tauranga

NICHOLSON v POLICE [2021] NZHC 960 [3 May 2021]

[1] Mr Nicholson appeals against his sentence of 60 hours’ community work and disqualification from holding or obtaining a driver’s licence for one year, imposed by Judge T R Ingram in the District Court at Tauranga on 22 February 2021,1 following his guilty plea to a charge of driving while his licence was suspended or revoked.2

[2] Mr Nicholson only challenges the period of disqualification. He does so on the grounds that the period of disqualification was one year and one day and in any event the Judge should have exercised his discretion under s 94 of the Land Transport Act 1998 (the Act) to substitute a community-based sentence for the period of disqualification, that being the least restrictive outcome appropriate in the circumstances.

Facts

[3] On 24 December 2020, Mr Nicholson was stopped by police for an unrelated traffic matter while he was driving northwards on the Waikato Expressway near Meremere.

[4] Mr Nicholson had been convicted of driving while suspended or disqualified on previous occasions in 2009 to 2020 – in June 2009, May 2010 and September 2012. Then, on 12 November 2020 he had been suspended from holding a driver’s licence for three months for excess demerit points.

District Court decision

[5] Having referred to Mr Nicholson’s prior convictions briefly, and the fact he is self-employed, the Judge sentenced Mr Nicholson to 60 hours’ community work and disqualified him from holding or obtaining a driver’s licence for one year “starting now,”3 that is, on 22 February 2021.

1      New Zealand Police v Nicholson [2021] NZDC 4186.
2      Land Transport Act 1998, ss 32(1)(c) and 32(4).
3      New Zealand Police v Nicholson [2021] NZDC 4186 at [3].

Further evidence

[6] Mr Nicholson seeks to adduce further evidence on appeal alleging counsel error (that he was not advised that to avoid disqualification he would need to apply under s 94 rather than seek a limited licence) and addressing the s 94 factors. Mr McWilliam, for the Police, does not oppose the admission of the fresh evidence. He has, however, filed an affidavit in response dealing with counsel error. I admit the further evidence in the circumstances.

Approach on Appeal

[7] The starting point is that to succeed on a first appeal against sentence, the appellant must satisfy the appeal court that there has been an error in the imposition of the sentence and that a different sentence should be imposed.4 The appeal court will intervene if the sentence is…

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 Nicholson v Police

Details

AGLC: Nicholson v Police [2021] NZHC 960
Case: [2021] NZHC 960
Decision Date: 3 May 2021

CaseChat Overview and Summary

In the High Court of New Zealand, Ethan John Nicholson appealed against his sentence of 60 hours' community work and disqualification from holding or obtaining a driver's licence for one year, imposed by Judge T R Ingram in the District Court at Tauranga on 22 February 2021. Nicholson was convicted of driving while his licence was suspended or revoked. He challenged only the period of disqualification on the grounds that it was one year and one day and that the Judge should have exercised his discretion under s 94 of the Land Transport Act 1998 to substitute a community-based sentence for the period of disqualification, as it was the least restrictive outcome appropriate in the circumstances.

The court noted that the appeal court will intervene if the sentence is manifestly excessive or wrong in principle. Here, the Judge was not asked to substitute a community-based sentence for the period of disqualification under s 94. However, the Court has taken the view that it has the power to hear an application for the exercise of the s 94 discretion even where that issue was not raised in the District Court at first instance. The question, in essence, was whether an order under s 94(3) ought to have been made, taking into account the fresh evidence.

The court found that the circumstances of the case and of the offender weighed against disqualification, as Nicholson would lose his employment and would have difficulty seeing his daughter. The likely effect of disqualification was loss of employment and difficulty seeing his daughter. The public interest in enabling Mr Nicholson to continue his work and avoid adverse financial and family consequences was also considered. The court concluded that disqualification was inappropriate and a community-based sentence was appropriate. An additional 60 hours of community work was imposed in substitution for disqualification.

The appeal was allowed, and the sentence of disqualification from holding or obtaining a driver’s licence for one year was quashed. In its place, an additional 60 hours of community work was imposed pursuant to s 94(3) of the Land Transport Act 1998. The appeal was otherwise dismissed.

Orders