R v Hodgson - [2008] NZCA 132

IN THE COURT OF APPEAL OF NEW ZEALAND
CA613/2007
CA622/2007
[2008] NZCA 132
THE QUEEN
v
DAVID JOHN HODGSON
NEOTON YOUSIF
Hearing:19 May 2008

Court:Robertson, Wild and Cooper JJ
Counsel:G J King for Appellant Hodgson

V C Nisbett for Appellant Yousif
S B Edwards for Crown

Judgment:22 May 2008 at 2 pm

JUDGMENT OF THE COURT

A THE APPEALS ARE ALLOWED.
B The four year disqualification is quashed.
CEach appellant is disqualified from holding or obtaining a driver’s licence for three years from 23 October 2007.

____________________________________________________________________
REASONS OF THE COURT
(Given by Robertson J)
Introduction
[1]       The appeals by these two men relate solely to the length of the disqualification from driving imposed upon them by Ronald Young J as part of their sentencing after they had each entered pleas of guilty to charges of dangerous driving causing death under s 36(1)(b) of the Land Transport Act 1998. There is a minimum mandatory disqualification of one year, but no maximum is prescribed.
[2]       Both appellants and another were charged with manslaughter following a driving incident in the early hours of the morning of Sunday 20 August 2006.
[3]       After deposition, these two appellants pleaded guilty to the alternative charge. A sentencing indication (which was addressed only to other aspects of sentence) was that, on conviction for this offence, home detention would be appropriate. They were also told that, if the matter proceeded to trial and a conviction was entered for manslaughter, there would inevitably be a term of imprisonment imposed.
[4]       It was common ground that the length of disqualification was not addressed in any manner prior to the Judge imposing a four year term. The Judge gave no reasons as to why he fixed on four years and consequently we are forced to analyse and assess the circumstances in greater depth than would be necessary if we were confined to the formal appellate role of evaluating an exercise of judicial discretion.
[5]       Both appellants contend that this disqualification was manifestly excessive having regard to the circumstances of the offending and their personal circumstances. Also, it was submitted to be disproportionate when compared with the length of disqualification orders imposed for similar offending.
[6]       It is common ground that the total package of sentencing must be assessed and that its separate factors cannot be viewed in isolation.
[7]       The Judge did not differentiate between the appellants and sentenced each to ten months’ home detention, subject to appropriate conditions. The Judge did not order confiscation of the motor vehicles involved, but required that they be sold and that each appellant pay a fine of $3,000.
Background
[8]       The factual situation was described by the sentencing Judge thus at [2]:
On 20 August last year you were at the lights at the intersection of Cambridge Terrace and Vivian Street. The lights were red. When they turned green you both accelerated in your high performance cars away from the lights. At about that same time the deceased stepped onto Cambridge Terrace…

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 R v Hodgson

Details

AGLC: R v Hodgson [2008] NZCA 132
Case: [2008] NZCA 132
Decision Date: 22 May 2008

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appeals of David John Hodgson and Neoton Yousif against the length of their disqualification from driving were heard. Both had pleaded guilty to charges of dangerous driving causing death under the Land Transport Act 1998. Ronald Young J had imposed a four-year disqualification, which the appellants argued was manifestly excessive and disproportionate. The Crown accepted that the disqualification was at the upper end of previous cases, but argued that the lengthy term was necessary for specific and general deterrence, denunciation, and punishment. The Court had to decide whether the four-year disqualification was appropriate in the circumstances of the case, considering the culpability of the appellants and the principles governing sentences for dangerous driving causing injury or death.

The Court of Appeal noted that each case must be dealt with on its own particular circumstances, and there had been a substantial variance in the periods of disqualification imposed. Although the Judge found that the facts of this case placed it at the lower end of this type of offending, the Court of Appeal concluded that a four-year disqualification was not consistent with previous decisions. The Court of Appeal found that, in the absence of additional aggravating factors, a period of disqualification of three years was in conformity with previous decisions, and was proportionate to the culpability of the appellants.

The appeals were allowed, and the four-year disqualification was quashed. Each appellant was disqualified from holding or obtaining a driver’s licence for three years from 23 October 2007.

Orders