Ryder-Ware v Police - [2022] NZHC 3172

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-404-000341

[2022] NZHC 3172

BETWEEN
KYLE HENARE RYDER-WARE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 28 November 2022

Appearances:

Tony Beach for the Appellant

Lilla Dittrich for the Respondent

Judgment:

30 November 2022

JUDGMENT OF MOORE J

[Appeal against sentence]

This judgment was delivered by me on 30 November 2022 at 12:00 pm.

Registrar / Deputy Registrar Date:

RYDER-WARE v NEW ZEALAND POLICE [2022] NZHC 3172 [30 November 2022]

Background

[1] Kyle Ryder-Ware pleaded guilty to charges relating to firearms offending, four driving-related offences under the Land Transport Act 1998 (“LTA”) and resisting Police.1 On 1 October 2020, Judge C J Field convicted and discharged him on three of the driving-related charges, but imposed a sentence disqualifying him from driving for a period of two years on the remaining charge of failing to remain stopped.2

[2] Mr Ryder-Ware seeks leave to appeal his sentence of disqualification out of time. He argues that in light of this Court’s decision in Martin v Police,3 the Judge erred by finding that the relevant offence was a third or subsequent offence for which disqualification must be imposed.

[3] The Crown concedes that this was an error and accepts that the sentence of disqualification ought to be quashed and substituted for an appropriate sentence.

[4] In light of the Crown’s position, I consider that an extension of time to bring the appeal should be granted.

The offending

[5] For present purposes it is only necessary to briefly summarise Mr Ryder-Ware’s offending.

[6] On 8 August 2020, Mr Ryder-Ware was driving a vehicle down a street in Ponsonby, Auckland. He overtook other drivers, narrowly missing oncoming traffic. The Police identified the vehicle as having stolen registration plates and pulled him over. Mr Ryder-Ware did not have a driver licence at the time. He got out of the vehicle and ran away. The Police found him hiding in the backyard of a nearby property.

1      These were for being a person on a road and failing to give his name and address; failing to remain stopped; being an unlicensed driver and failing to comply with the prohibition; and careless driving.
2      Police v Ryder-Ware [2020] NZDC 20074. See also Land Transport Act 1998, ss 52A(1)(b) and
114. If a person is convicted of an offence against s 52A(1) for a third or subsequent time, the maximum penalty is three months’ imprisonment and the court must order the person to be disqualified from holding or obtaining a driver licence for two years.
3      Martin v Police [2021] NZHC 1356.

District Court sentencing

[7] The Judge took the firearms offending as the lead charge and imposed a sentence of three months’ imprisonment.4 He then convicted and discharged Mr Ryder-Ware on three of the four driving charges. He left undisturbed the charge of failing to remain stopped.5 The Judge went on to say that “the law requires” that he impose…

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 Ryder-Ware v Police

Details

AGLC: Ryder-Ware v Police [2022] NZHC 3172
Case: [2022] NZHC 3172
Decision Date: 30 November 2022

CaseChat Overview and Summary

The case of Ryder-Ware v Police was heard in the High Court of New Zealand. Kyle Ryder-Ware, the appellant, had pleaded guilty to firearms offences, four driving-related offences under the Land Transport Act 1998, and resisting Police. The central issue in the case was whether the sentencing judge had erred by imposing a two-year disqualification period from driving for the offence of failing to remain stopped. The appellant argued that the judge had erred by considering his prior convictions which predated the amendment to the Act, and sought to appeal the sentence out of time.

The court found that the sentencing judge had indeed erred by taking into account prior convictions that predated the amendment to the Act. This was in line with the decision in Martin v Police, which had held that the amended section 52A of the Act did not refer to the repealed predecessor provision, and therefore convictions pre-dating the amendment could not be taken into account. The Crown conceded this point and accepted that the sentence of disqualification should be quashed and substituted for an appropriate sentence.

The court allowed the appeal and quashed the two-year disqualification period imposed on the charge of failing to remain stopped, substituting it with a conviction and discharge. The sentence on the remaining charges was unaffected. The court also granted the application for an extension of time to bring the appeal.

Orders