Reddy v Police - [2020] NZHC 197

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-524

[2020] NZHC 197

BETWEEN
RAKESH REDDY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 17 February 2020

Counsel:

T Clee for Appellant

Y Olsen for Respondent

Judgment:

18 February 2020

JUDGMENT OF WHATA J

This judgment was delivered by me on 18 February 2020 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors: Kayes Fletcher Walker

RAKESH REDDY v NEW ZEALAND POLICE [2020] NZHC 197 [18 February 2020]

[1] Mr Reddy was charged on two separate occasions for driving while disqualified. On the first occasion, he was sentenced to community service and disqualification for one year and one day. On the second occasion, a community-based sentence was imposed in substitute for a mandatory period of disqualification under s 94 of the Land Transport Act 1998 (the Act).

[2] This appeal relates to the first sentence. Mr Reddy claims that he was never properly advised, in relation to the first sentence, that he could have applied, pursuant to s 94 for a sentence of community service instead of disqualification. Alternatively, he says this Court should examine whether a substituted order pursuant to s 94 should, in any event, be imposed.

[3] The appeal against the first sentence is out of time. Application for leave to appeal out of time is sought and is not opposed on the basis that Mr Reddy sought advice for a limited licence after sentencing and attention thus belatedly turned to the original sentencing outcome. Leave is therefore granted to appeal out of time.

Background

[4] Mr Reddy was sentenced on 31 May 2019 on one charge of driving while disqualified (third or subsequent). He was sentenced to 60 hours community work and one year one day of disqualification from 24 July 2019. He subsequently reoffended and was charged with driving while disqualified (third or subsequent) on 21 August 2019. Mr Reddy sought, in respect of this charge, an alternative sentence pursuant to s 94 of the Act. That was granted by Judge McIlraith. The Judge was satisfied that a substituted order could be made. In this regard, the Judge noted:

[11] There is no doubt from reading the affidavit and Mr Reddy’s criminal history that he is what is referred to as a “treadmill” offender in terms of disqualified driving. In addition he is, of course, engaged in a business which by its very nature required his driving. Relying on a substitute driver has put his business at risk and Mr Reddy is under enormous pressure, as is his family. It is clear that he will suffer extreme financial hardship if he is further disqualified and his business is at risk.

[12] The public interest in the matter calls for consideration. I accept what Mr Clee submits which is that the public interest is not to impose disqualification and it is preferable to allow Mr Reddy to find a path…

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 Reddy v Police

Details

AGLC: Reddy v Police [2020] NZHC 197
Case: [2020] NZHC 197
Decision Date: 18 February 2020

CaseChat Overview and Summary

The appellant, Mr Reddy, sought to appeal the sentence imposed on him by the District Court after he was found guilty of driving while disqualified. The appeal was against the first sentence of 60 hours community work and one year and one day of disqualification from driving. The appeal was out of time, but leave to appeal out of time was granted. The grounds for appeal were that Mr Reddy was not properly advised of his right to apply for a community-based sentence instead of disqualification under s 94 of the Land Transport Act 1998, or that the court should consider imposing such a sentence. The court had to determine whether there was counsel error and, if not, whether the sentence was manifestly excessive. The court found no counsel error but determined that the sentence was manifestly excessive and quashed the disqualification order, imposing an additional 40 hours of community service.

The court examined the circumstances of the case and the offender, the effectiveness of previous orders, the impact of disqualification on Mr Reddy, and the public interest. It concluded that a s 94 order would have been available to Mr Reddy and that the disqualification was manifestly excessive. The court quashed the disqualification and imposed a further 40 hours of community service. The court emphasised that the determination of whether a sentence of disqualification is manifestly excessive depends on the facts of each case.

Orders