Phillips v Police - [2016] NZHC 242

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2015-454-29 [2016] NZHC 242

BETWEEN
DEAN CRAIG ROY PHILLIPS

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 3 February 2016

Counsel:

P S Coles for Appellant
M J Blaschke for Crown

Judgment:

23 February 2016

JUDGMENT OF WILLIAMS J

[1] Dean Phillips pleaded guilty to and was convicted of one count of careless driving causing injury under s 38 of the Land Transport Act 1998. He was sentenced in the District Court to disqualification from driving for 12 months and required to pay emotional harm reparation to the injured victim in the incident in the sum of
$3,500. No issue is taken with the reparation award, but Mr Phillips appeals against the length of disqualification on the ground that it was manifestly excessive in the circumstances of the offence and those of Mr Phillips himself.

Factual background

[2] At 6.40pm on Wednesday 4 June 2014, Mr Phillips, then 19 years old, was driving his car along a rural back road near Dannevirke. The road was dry but the area was dark there being no street lights. The posted speed limit was 100 kph. His friend, Levi Asken, was in the passenger seat. Mr Asken was not wearing his seatbelt. They were only a kilometre from their destination, Mr Asken’s home,
where Mr Phillips was also staying.

PHILLIPS v NEW ZEALAND POLICE [2016] NZHC 242 [23 February 2016]

[3] Mr Phillips failed to negotiate a gentle right-hand bend and the left-hand tyres of his vehicle strayed onto the grass verge causing him to lose control of the car. The car hit a drainage ditch, flipped and spun 180 degrees. The car’s rotation caused Mr Asken to be thrown clear of the vehicle because, as I have said, he was not restrained by a seatbelt. The car was extensively damaged and both young men were injured but Mr Asken far more seriously. He spent 21 days in intensive care at Wellington Hospital. In the early stages of his confinement, medical staff warned family to prepare for the worst. His family did not expect him to survive. It is a testament to his extraordinary resilience that Mr Asken did however survive and has made real progress toward recovery.

[4] Mr Asken suffered significant brain injury, a broken neck, a broken rib and bruised lungs which collapsed. And, perhaps in connection with that last mentioned injury, he contracted pneumonia in the early stages of his confinement in ICU. On release from ICU, Mr Asken spent many months in rehabilitation being required to relearn how to walk, talk, feed, toilet and shower himself. Mr Asken has no recollection of the accident or the three month period prior to it.

[5] By contrast the injuries suffered by Mr Phillips were relatively minor in a physical sense but he suffered emotional scarring, including depression and anxiety. He developed suicidal ideation and attempted suicide on at least one occasion. Mr Asken is angry and bitter at the effect the…

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 Phillips v Police

Details

AGLC: Phillips v Police [2016] NZHC 242
Case: [2016] NZHC 242
Decision Date: 23 February 2016

CaseChat Overview and Summary

Dean Phillips was convicted of careless driving causing injury and sentenced to disqualification from driving for 12 months and required to pay emotional harm reparation to the injured victim. Phillips appealed against the length of disqualification on the ground that it was manifestly excessive in the circumstances of the offence and those of Phillips himself. The legal issues before the court were whether the District Court made a material error such that the sentence adopted was manifestly excessive or wrong in principle. The court considered the principles of sentencing under the Sentencing Act 2002 and found that the discretionary approach advocated by Nicholson J in George v Police was more consistent with the purposes of sentencing. The court found that the emotional harm reparation aspect of the sentence was not lenient and the disqualification period of 12 months was beyond stern. The appeal was allowed, the disqualification period of 12 months was quashed, and a period of six months was substituted. This outcome reflects the need for consistency in sentencing policy in this area.

Orders