Ryan v Police - [2021] NZHC 2474

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2021-425-000015

[2021] NZHC 2474

BETWEEN
TASMAN JAMES RYAN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 20 September 2021

Appearances:

O L Taylor for Appellant

R T Nye-Wood for Respondent

Judgment:

20 September 2021

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 20 September 2021 at 4 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar
Date……………

Introduction

[1] The appellant, Tasman Ryan, pleaded guilty to a charge of threatening to injure.1 On 14 May 2021, he was sentenced by Judge Brandts-Giesen to two months’ imprisonment and disqualified from driving for a period of six months.2 Mr Ryan appeals the disqualification order, saying:

1 Summary Offences Act 1981, s 21(1)(a). Maximum penalty three months imprisonment.
2 Police v Ryan [2021] NZDC 9429.

RYAN v NEW ZEALAND POLICE [2021] NZHC 2474 [20 September 2021]

(a)he was not on notice that such an order would be sought;

(b)the Judge did not give reasons why the discretion to disqualify under s 124 Sentencing Act 2002 was exercised; and

(c)in the circumstances of the case, disqualification served no sentencing purpose.

Leave to appeal out of time

[2] The statutory timeframe for filing an appeal against sentence is 20 working days from the date of judgment appealed against.3 Mr Ryan filed his appeal on 2 August 2021, approximately three weeks outside the statutory timeframe. Accordingly, leave to appeal is required.

[3] In explanation of the delay, counsel advises Mr Ryan was told by his previous lawyer that he did not have any grounds to appeal.

[4] The touchstone in determining an application for an extension of time is the interests of justice in the circumstances of the case.4 The relevant factors were summarised in R v Lee as follows:5

… factors of relevance to the balancing test include the wider interests of society in the finality of decisions, the strength of the proposed appeal, whether the liberty of the subject is involved, the practical utility of any remedy sought, the extent of the impact on others affected and on the administration of justice, and any prejudice to the Crown.

Relevant considerations include the merits of the appeal and the reasons for the delay.6

[5] The respondent opposes leave being granted. It is submitted there is no evidence to support the application and there is little practical utility in the remedy sought. It is noted Mr Ryan was sentenced on 22 April 2021 to two years and

3      Criminal Procedure Act 2011, 248(2).
4      R v Knight [1998] 1 NZLR 583 (CA).
5      R v Lee [2006] 3 NZLR 42 (CA) at [99], cited in Smith v R [2021] NZCA 169 at [5].
6 At [108]. See also Mikus v R [2011] NZCA 298 at [26], citing R v Slavich [2008] NZCA 116 at [14].

one months’ imprisonment for offending on 3 November 2020. On the face of it, he will still be serving…

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 Ryan v Police

Details

AGLC: Ryan v Police [2021] NZHC 2474
Case: [2021] NZHC 2474
Decision Date: 20 September 2021

CaseChat Overview and Summary

In the High Court of New Zealand, Tasman James Ryan, the appellant, brought an appeal against the decision of the District Court, represented by the New Zealand Police, the respondent. The appellant pleaded guilty to a charge of threatening to injure, and was sentenced to two months' imprisonment and disqualified from driving for six months. The appellant appeals the disqualification order, arguing that he was not given notice that such an order would be sought, the Judge did not give reasons for the disqualification, and in the circumstances of the case, disqualification served no sentencing purpose. The statutory timeframe for filing an appeal against sentence is 20 working days from the date of judgment, but Mr Ryan filed his appeal approximately three weeks outside of the statutory timeframe. Accordingly, leave to appeal was required. The court granted leave to appeal out of time, considering that the delay was modest and a reason for the delay had been provided, albeit informally.

The court considered the legal issues of whether Mr Ryan was on notice that an order of disqualification was sought, whether the Judge gave reasons for the disqualification, and whether disqualification was the least restrictive outcome in the circumstances. The court found that Mr Ryan's counsel was on notice that a s 124 disqualification order was sought by the prosecution, but the District Court Judge provided only cursory reasons as to why s 124 was engaged and failed to articulate why disqualification was appropriate. The court considered the matter afresh and found that the imposition of the disqualification does not serve the purpose of protecting the public because, for most, if not all the period of disqualification, Mr Ryan is removed from the community due to his sentence of imprisonment for other offending. The court also found that the imposition of the period of disqualification was not the least restrictive outcome in the circumstances, as the sentence of imprisonment alone is sufficient to meet the relevant sentencing principles.

The court allowed the appeal and quashed the sentence of six months' disqualification under s 124. The appeal was allowed and the sentence of six months' disqualification was quashed.

Orders