Nottingham v Police

[2025] NZHC 3193

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2025-409-207

[2025] NZHC 3193

BETWEEN

THOMAS BARRY NOTTINGHAM

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	23 October 2025
Appearances:	E McClay and J D Bibby for Appellant S A Teki-Clark for Respondent
Judgment:	24 October 2025

JUDGMENT OF BOLDT J

(Sentence appeal)

[1]                 On 7 April 2025, the appellant, Thomas Nottingham, pleaded guilty to twelve charges of driving while suspended.1 On 12 April, Judge Couch sentenced him to six months’ community detention and disqualified him from driving for twelve months.2

[2]                 Mr Nottingham appeals against his sentence. While he argues the sentence of six months’ community detention was excessive, the more important part of the appeal concerns his disqualification. At sentencing Mr Nottingham asked the Judge to substitute a community-based sentence for the otherwise-mandatory disqualification. The Judge declined, and Mr Nottingham challenges that decision. Mr Teki-Clark, on behalf of the Police, does not oppose my reconsidering Mr Nottingham’s disqualification.

1      Land Transport Act 1998, s 32(1)(c) and (3). Maximum penalty three months’ imprisonment or fine of $4,500, minimum disqualification of 6 months.

2      New Zealand Police v Nottingham [2025] NZDC 18909 [Decision under appeal].

NOTTINGHAM v NEW ZEALAND POLICE [2025] NZHC 3193 [24 October 2025]

Background

[3]                 On 27 September 2024, Mr Nottingham’s driver’s licence was suspended for three months after he accrued excess demerit points.3 On 28 November 2024, Police stopped Mr Nottingham’s vehicle. He admitted he was driving, acknowledged he was suspended and said he was on his way to work.

[4]                 Police then used Auror number plate recognition software to see if there was evidence he had been driving on other occasions over the previous 60 days. Auror identified another eleven instances. Instead of a single representative charge, Police laid twelve separate charges.

District Court sentencing

[5]                 Mr Nottingham is 33. The Judge noted Mr Nottingham has accrued infringements every year since he was 18 and that he typically committed multiple infringements at a time. The Judge observed that Mr Nottingham’s licence had been suspended eight times for excess demerit points; he said it was the largest number of suspensions he had ever seen.4

[6]                 In light of that history, the Judge assessed Mr Nottingham’s offending as among the most serious cases of its kind. He said he would “step back from imprisonment”, but that a substantial sentence would be required to achieve the purposes of the Sentencing Act 2002.5

[7]                 The Judge observed that the only mitigating factor available to Mr Nottingham was his plea of guilty and indicated he would reduce the otherwise-appropriate sentence by 20 per cent as a result.

[8]                 The Judge noted that Mr Nottingham had applied under s 94 of the Land Transport Act 1998 for the usually-mandatory disqualification to be replaced by a community-based sentence. He had recently taken up employment with a business

3      Land Transport Act, s 90. Decision under appeal, above n 2, at [1].

4 At [3]. My review of Mr Nottingham’s record only identified seven previous suspensions, but nothing turns on that.

5 At [4].

located 25 kilometres from his address, and his employer had written to the Court indicating a licence would be necessary for him to retain his job. The Judge observed:

[9]                   I am not impressed by this. What it amounts to is that in full knowledge of the mandatory disqualification for the offences you have already been convicted of, you assumed an obligation which you now rely on in an effort to avoid disqualification. I do not accept that is appropriate.

The appeal

[9]                 The approach to appeals against sentence is well settled. Under s 250 of the Criminal Procedure Act 2011, I must dismiss the appeal unless I am satisfied, for any reason, that there was an error in the sentence and that a different sentence should be imposed. In accordance with orthodox principle, an appeal can be allowed if only a sentence was manifestly excessive, represented an error of principle, or if there are exceptional circumstances.6

Fresh evidence

[10]             Mr Nottingham has filed an affidavit explaining how the loss of his licence will affect him. It attaches letters from his former employer, his current employer and an updating letter from his counsellor. Ms McClay, on Mr Nottingham’s behalf, submits the evidence is fresh, credible and cogent, and that it is in the interests of justice to admit it.7

[11]             Mr Teki-Clark agreed the Judge may have dismissed the s 94 application without all relevant information and supported my receiving Mr Nottingham’s affidavit. I agree it is cogent and relevant, and contains updating information which postdates the District Court sentencing.8 I am satisfied it is in the interests of justice to receive and take account of the new evidence.

Section 94 application

[12]             Ms  McClay  submitted  the  Judge  had  placed  too  much  emphasis  on   Mr Nottingham’s (admittedly dreadful) history of traffic infringements rather than

6      Tutakangahau v R [2014] NZCA 279, [2014] NZLR 482 at [33]–[39].

7      Lundy v R [2013] UKPC 28, [2014] 2 NZLR 27 at [120].

8      Mark v R [2019] NZCA 121 at [16].

addressing the causes of his most recent offending. She argued the Judge was also wrong to disregard the steps Mr Nottingham has taken since November last year to mitigate the risk of offending in the future.

[13]             Much of Mr Nottingham’s offending over the years arose because he did not have either a full licence or access to a registered and warranted car. Since his most recent offending, Mr Nottingham has obtained his full licence and restored his vehicle to the point where it is registered and warranted. He has not accrued any more demerit points since his licence was returned to him last December.

[14]             It appears the Judge was wrong when he suggested Mr Nottingham had taken on his most recent employment in an effort to avoid disqualification. In fact, he has worked on and off for that company for eleven years. Mr Nottingham’s employer confirmed he would like to be able to offer him a full time position, but that his company operates all over Canterbury and a driver’s licence is required.

[15]             Finally, Mr Nottingham’s counsellor noted he had experienced significant trauma earlier in his life which has affected his mental health. Being able to work has been one of the most important factors in his ongoing progress.

[16]Section 94 of the Land Transport Act relevantly provides:

94       Substitution of community-based sentences

(1)This section applies if—

(a)the offender has previously been ordered on conviction for an offence to be disqualified from holding or obtaining a driver licence; and

(b)the court, having regard to—

(i)the circumstances of the case and of the offender; and

(ii)the effectiveness or otherwise of a previous order of disqualification made in respect of the offender; and

(iii)the likely effect on the offender of a further order of disqualification; and

(iv)the interests of the public,—

considers that it would be inappropriate to order that the offender be disqualified from holding or obtaining a driver licence; and

(c)the court considers that it would be appropriate to sentence the offender to a community-based sentence in accordance with Part 2 of the Sentencing Act 2002.

…

(3)If the court sentencing an offender determines under this section not to make an order of disqualification,—

(a)the court must impose a community-based sentence on the offender; and

(b)the imposition of such a sentence does not limit or affect the power of the court to impose any other sentence for the offence that, in accordance with the provisions of the Sentencing Act 2002, it may impose in addition to the community-based sentence; and

(c)in determining the appropriate sentence to be imposed on the offender in respect of the offence, the court must take into account the gravity of the offence and the fact that the offender would otherwise have been liable to disqualification from holding or obtaining a driver licence.

[17]             Both counsel agree it is mandatory for a sentencing Judge, when considering an application under s 94, to have regard to the four factors in s 94(1)(b), including the likely effect of further disqualification on the offender and the interests of the public. They agree the Judge did not fully consider the way the four s 94(1)(b) factors applied to Mr Nottingham.

[18]             Section 94 is designed to break the cycle of recidivist driving offending by substituting a sentence which will be more effective in meeting the needs of the offender and the wider community.9 In Wilson v Police, Dobson J observed:10

Section 94 should only justify a variation from the norm where the personal circumstances of the offender, and in particular the rehabilitative prospects, justify affording the offender an opportunity to break the cycle of circumstances contributing to the recidivist offending.

[19]In Teddy v R, Churchman J observed:11

9      Stacey v Police [2018] NZHC 3280 at [24].

10     Wilson v Police [2014] NZHC 3028 at [12].

11     Teddy v R [2019] NZHC 219 at [12].

While it is not necessary to establish hopeless recidivism in order to qualify for consideration, a candidate for relief from the otherwise mandatory disqualification must, nonetheless, demonstrate that such is appropriate, for example by establishing that further disqualification would create special hardship or otherwise be contrary to the public interest.

[20]             Ms  McClay  submitted  the   Judge   overestimated   the   seriousness   of   Mr Nottingham’s offending, especially as the twelve instances of driving while suspended were detected through a retrospective review of CCTV footage. There is no suggestion he drove dangerously on any of those occasions.

[21]             I do not accept that submission. Mr Nottingham responded to his most recent suspension by ignoring it. While the prolonged and systematic nature of his offending was detected only because of new technology, it was appropriate for such persistent disregard of an order for suspension, by a defendant with an extensive record of breaching his obligations as a driver, to be met with a firm sentencing response. Another Judge might have selected a shorter term of community detention, but the six months Judge Couch chose was available to him.

[22]             That said, I have no doubt, particularly in light of the material in his affidavit, that it is in the interests of justice to quash Mr Nottingham’s disqualification. It is clear that successive suspensions have not operated as an effective deterrent. Occasional speeding infringements aside, much of Mr Nottingham’s offending was attributable to factors which can be identified and remedied, such as the fact he did not have a full licence or a warranted and registered car.  It is commendable that    Mr Nottingham has now addressed those things.

[23]             Second, and more importantly, disqualification will result in Mr Nottingham losing his employment. His counsellor explained the likelihood the loss of his job and the loss of his ability to drive will harm Mr Nottingham’s mental health, which has otherwise been improving. Mr Teki-Clark fairly accepted that stable employment is a well-recognised factor in reducing the risk of further offending and acknowledged the likely benefit to Mr Nottingham’s mental health.

[24]             Ms McClay submitted, and I agree, that the Judge did not have regard to the combined effect of the four s 94(1)(b) factors before declining Mr Nottingham’s

application. Mr Teki-Clark accepted that in those circumstances it is appropriate for me to conduct the s 94(1) exercise afresh.

[25]             I agree with Mr Teki-Clark that there is a substantial public interest in keeping unsafe drivers off the road and in ensuring that orders for suspension and disqualification are observed. Mr Nottingham’s persistent non-compliance with traffic rules and his multiple breaches of his suspension reflects no credit on him. Nonetheless, the lengthy sentence of community detention is sufficient to hold him to account for that offending. I agree there is no evidence Mr Nottingham is, in general, an unsafe driver. The overall public interest will be far better served by ensuring he is able to remain in stable employment and that he is given every assistance to consolidate the progress he has made with his mental health. I am satisfied, particularly in light of the new evidence now available, that it is appropriate to impose a community-based sentence instead of the otherwise-mandatory period of disqualification.

[26]             In his affidavit, Mr Nottingham indicated he would find a sentence of supervision helpful and would be “happy to do any course they asked me to do”. He concluded his affidavit by indicating he just wants to “work and get better”. While Ms McClay invited me to subsume the new community-based sentence in the existing term of community detention, I agree a discrete sentence of supervision is appropriate. It need not be onerous — Mr Nottingham’s probation officer may consider regular reporting is all that is required. That said, but there may be useful programmes available, and in any event it is appropriate that he is subject to an element of formal monitoring over the next few months.

Result

[27]             The appeal is allowed. I make an order quashing Mr Nottingham’s disqualification from driving and substitute a sentence of six months’ supervision. His sentence of six months’ community detention is unaffected.

Boldt J