Skelton v Police - [2015] NZHC 1735

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-161 [2015] NZHC 1735

BETWEEN
WESLEY KARAKA SKELTON

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 28 July 2015

Appearances:

P H H Tomlinson for Appellant
E T Fletcher for Respondent

Judgment:

28 July 2015

ORAL JUDGMENT OF WHATA J

Solicitors:
Kayes Fletcher Walker, Crown Solicitors, Manukau
Copy to:
P H H Tomlinson, Auckland

SKELTON v NEW ZEALAND POLICE [2015] NZHC 1735 [28 July 2015]

[1] Mr Skelton pleaded guilty to one charge of driving a licence suspended third

and subsequent. A sentence of 12 months’ disqualification together with a fine of

$500 was imposed. He now says that the Judge sentencing him wrongly exercised her discretion in declining an application pursuant to s 94 of the Land Transport Act
1998 to avoid mandatory disqualification.

Background

[2] Mr Skelton is 27 years old and until earlier this year had sole custody of his seven year old child.

[3] On 30 March 2012 and then again on 11 October 2012 Mr Skelton was convicted on charges of driving while disqualified. On 10 February 2015, Mr Skelton being the holder of a full driver licence with excess demerit points, had his driver’s licence suspended for a period of three months, until 9 May 2015. The consequences of driving were explained to him and understood.

[4] At about 5.00 pm on Tuesday 28 April 2015 Mr Skelton was the driver of a BMW motor vehicle travelling on Hallberry Road, Mangere East. He was unable to produce a driver’s licence and police checks revealed that he was suspended from driving. In an affidavit filed in support of his application Mr Skelton noted that he had lost his licence through demerit points for such things as no safety belt or warrant of fitness. He says none of the points were for speeding. He said that he drove the car on this occasion because the car belonged to people who were moving out that day and the car had to be moved. He discussed it with his friend who wanted to sell it. He said he could sell it to his brother who lived within 500 metres. He says that his intention was to drive to his place and no further. He notes also that he had about two weeks left on his disqualification and was even more regretful of the driving.

[5] He also says that he sought an opportunity to get work and recently was offered a job that involved light transport delivery of goods to vending machines around Auckland. As he was disqualified, however, the job was offered to another driver.

[6] He says he is actively seeking work.

Judge’s decision

[7] The Judge provides the following narrative as to background:1

[2] I accept that you were disqualified in March 2012 and again in October 2012, and then on 10 February this year you were the holder of a full driver’s licence, but you were disqualified because the demerit points reached the maximum point. Your…

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.

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Details

Case: [2015] NZHC 1735
Decision Date: 28 July 2015

CaseChat Overview and Summary

Wesley Karaka Skelton appealed against a decision of the District Court which declined an application pursuant to s 94 of the Land Transport Act 1998 to avoid a mandatory disqualification from driving. Skelton pleaded guilty to one charge of driving a licence suspended third and subsequent. The District Court Judge imposed a sentence of 12 months’ disqualification together with a fine of $500. Skelton argued that the Judge wrongly exercised her discretion in declining the application. The High Court of New Zealand was required to determine whether the District Court Judge erred in declining the application under s 94. The High Court concluded that the District Court Judge did not sufficiently consider Skelton’s personal circumstances and the proportionality of the sentence. The High Court found that a further 12 months’ disqualification would be disproportionate to the gravity of the offending and the circumstances of the offender, Skelton. The appeal was allowed, and the sentence of disqualification was set aside. In its place, the High Court imposed a community-based sentence of 80 hours community work.

Orders