O'Brien v Police - [2025] NZHC 2083

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2025-409-125 [2025] NZHC 2083

BETWEEN JAKE MADISON O’BRIEN
Appellant

AND NEW ZEALAND POLICE
Respondent

Hearing: 24 July 2025 Appearances: J A Poff for Appellant
M W Fulton for Respondent

Judgment: 29 July 2025

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 29 July 2025 at 10 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar
Date……………

O’BRIEN v NEW ZEALAND POLICE [2025] NZHC 2083 [29 July 2025]

Introduction

[1] On 23 May 2025, Jake Madison O'Brien was convicted of one charge of driving while licence suspended.1 Although Mr O’Brien sought a discharge without conviction, the application was declined and he was sentenced to pay a $300 fine and to a six-month licence disqualification period from the date of the judgment delivered by Judge Couch.2 He now appeals the Judge’s refusal to grant a discharge without conviction.

Background

[2] Mr O’Brien is aged 29 and the sole employee of his building company. He is married with two young children, aged seven and three.

[3] On 6 September 2024, Mr O’Brien received a demerit suspension notice from Waka Kotahi informing him that his driving privileges would be suspended for three months beginning 10 September. Shortly after the suspension began, Mr O'Brien applied for a limited licence to drive a specific vehicle. This application was reviewed by police, who used number plate recognition software as part of their assessment.

[4] Police observed via CCTV that on the morning of 13 September 2024, Mr O'Brien drove his motor vehicle off a Christchurch petrol station forecourt. The vehicle was towing a trailer. Prior to leaving, Mr O’Brien can be seen driving the vehicle on the forecourt of the service station, parking beside the petrol pumps before entering the shop. When he left the shop, he got back in the driver’s seat before driving off.

[5] When questioned, Mr O'Brien explained that he moved the vehicle for his partner, who found it difficult to drive with a trailer.

1 Land Transport Act 1998, s 32(1)(c) and s 32(3); maximum penalty three months’ imprisonment or $4,000 fine and six months minimum disqualification.
2 Police v Obrien [2025] NZDC 11312.

District Court decision

[6] The Judge outlined the three-stage test for applications for discharge without conviction: first an assessment of the gravity of the offending; secondly, an assessment of the consequences of conviction; and thirdly, determination of whether those consequences are out of all proportion to the gravity of the offending.

[7] The Judge noted Mr O’Brien and his wife’s sworn affidavits and observed the offence of driving while suspended is a “relatively modest one” given the maximum penalty of three months’ imprisonment and that the gravity of the offending was “relatively low”. However, the Judge considered the offence aggravated by the fact this was Mr O'Brien's third suspension for excess demerit points, mostly for speeding, and that he had not learned from previous suspensions.

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 O'Brien v Police

Details

AGLC: O'Brien v Police [2025] NZHC 2083
Case: [2025] NZHC 2083
Decision Date: 29 July 2025

CaseChat Overview and Summary

In the High Court of New Zealand, Jake Madison O'Brien appealed against the District Court's refusal to grant a discharge without conviction for driving while his licence was suspended. The District Court had sentenced him to pay a $300 fine and a six-month licence disqualification period. O'Brien's primary contention was that the consequences of his conviction were disproportionately severe given the relatively minor nature of his offence.

The court had to decide whether the consequences of the conviction were out of proportion to the gravity of the offending. This involved assessing the gravity of the offending, the direct and indirect consequences of a conviction, and determining whether these consequences were disproportionate to the offence. The court examined whether the mandatory disqualification from driving, which had significant implications for O'Brien's livelihood and family life, was out of proportion to the low-level nature of his offence.

The High Court found that while the gravity of the offence was relatively low, the consequences of the conviction for O'Brien, including the financial hardship and the impact on his family's daily life, were indeed out of proportion to the offence. The inability to drive affected his ability to run his building business, transport his children, and assist his wife in emergencies, leading to significant stress and financial strain on the family. The court concluded that these cumulative effects made the consequences disproportionate to the low culpability of the offence.

As a result, the appeal was allowed. The conviction and sentence were quashed, and the application for a discharge without conviction was granted.

Orders