Scadden v Police - [2020] NZHC 1619

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI 2020-463-000047

[2020] NZHC 1619

BETWEEN
JEREMY SCADDEN

Applicant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 8 July 2020

Appearances:

A D Hill for the Applicant

G Banuelos for the Respondent

Judgment:

8 July 2020

JUDGMENT OF VAN BOHEMEN J

Solicitors/Counsel:
A D Hill, Barrister (Lawyers on Pukaki, Rotorua) Crown Solicitor (Gordon Pilditch, Rotorua)

SCADDEN v NEW ZEALAND POLICE [2020] NZHC 1619 [8 July 2020]

Introduction

[1] Jeremy Scadden appeals the sentence imposed by the District Court on 9 June 2020 of 60 hours of community work and 12 months’ disqualification for one charge of driving while disqualified.1 Because it was Mr Scadden’s third or subsequent offence, the maximum penalty for the offence was two years’ imprisonment and a mandatory disqualification period of at least 12 months.2

[2] Mr Scadden says the sentencing Judge erred in declining to apply s 94 of the Land Transport Act 1998 (LTA), under which a judge may order a community-based sentence if he or she considers that it would be inappropriate to order than an offender
-be disqualified from holding or obtaining a driver’s licence. The Judge considered he was barred by s 94(4)(aa) of the LTA from considering Mr Scadden for a community-based sentence because Mr Scadden was still subject to an alcohol interlock sentence. Mr Scadden says that the sentencing Judge was wrong in his interpretation of the effect of s 94(4)(aa) and that the matter should be remitted back to the District Court so that it may consider the discretionary factors under s 94.

[3]The sole issue on appeal is the interpretation of s 94(4)(aa) of the LTA.

Factual background

[4] Mr Scadden has had a number of traffic convictions starting in 2016 and has been disqualified from driving on four occasions:

(a)In January 2017, he was convicted of driving with an excess breath alcohol level, fined $500 and disqualified from driving for six months;

(b)In October 2018, he was convicted of dangerous driving and driving with an excess breath alcohol level and was sentenced to 80 hours of community service, ordered to apply for an interlock licence and disqualified from driving for six months;

1 Police v Scadden [2020] NZDC 10501.
2 Sections 32(1) and 32(4) of the Land Transport Act 1998.

(c)In January 2019, he was convicted of driving while disqualified, fined
$500 and disqualified from driving for six months;

(d)In March 2019, he was convicted of driving while disqualified, sentenced to six months’ supervision and disqualified from driving for a further six months.

[5] The present offending occurred in the early hours of 18 January 2020 when Mr Scadden was stopped by Police when driving on Fairy Springs Road, Rotorua. Mr Scadden’s explanation to the police for driving while disqualified was that he was taking home a friend who had had too much to drink.

[6]Mr Scadden pleaded guilty to the charge of driving while disqualified.

[7] Under the alcohol interlock…

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 Scadden v Police

Details

AGLC: Scadden v Police [2020] NZHC 1619
Case: [2020] NZHC 1619
Decision Date: 8 July 2020

CaseChat Overview and Summary

Jeremy Scadden appealed the sentence imposed by the District Court on 9 June 2020 of 60 hours of community work and 12 months' disqualification for one charge of driving while disqualified. Scadden argued that the sentencing Judge erred in declining to apply s 94 of the Land Transport Act 1998 (LTA) under which a judge may order a community-based sentence if he or she considers that it would be inappropriate to order that an offender be disqualified from holding or obtaining a driver's licence. The Judge considered he was barred by s 94(4)(aa) of the LTA from considering Scadden for a community-based sentence because Scadden was still subject to an alcohol interlock sentence. Scadden argued that the sentencing Judge was wrong in his interpretation of the effect of s 94(4)(aa) and that the matter should be remitted back to the District Court so that it may consider the discretionary factors under s 94. The sole issue on appeal was the interpretation of s 94(4)(aa) of the LTA.

The Court found that on the face of the language used in s 94(4)(aa), Judge Snell's interpretation appeared correct. The language is s 94(4)(aa) is in the present tense: "has been ordered." This connotes that there is an active order in existence. It excludes orders that have been spent and are no longer active. The Court concluded that Judge Snell interpreted s 94(4)(aa) correctly, and Scadden's appeal was dismissed. Mr Scadden's sentence of 12 months' disqualification was to be served, less the one week already served.

Orders