Smith v Police - [2014] NZHC 2101

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2014-435-000004 [2014] NZHC 2101

BETWEEN
PAUL VICTOR SMITH

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 2 September 2014

Counsel:

J K W Blathwayt for Appellant
I R Murray for Respondent

Judgment:

2 September 2014

JUDGMENT OF COLLINS J

Introduction

[1] This judgment explains why I am allowing Mr Smith’s appeal against the length of his period of disqualification from driving which was imposed upon him by Judge Walsh in the Masterton District Court on 5 June 2014.

[2] Mr Smith was sentenced to 250 hours’ community work and was disqualified from holding or obtaining a driver’s licence for a period of 12 months and one day.1

[3] Mr Smith has appealed on the ground that the disqualification period of

12 months and one day imposed by Judge Walsh was manifestly excessive.

[4] Mr Smith is a farmer. He was granted a limited licence, which allows him to travel over his property along the road which bisects his farm, to and from a block

1 Land Transport Act 1998, s 56(1). Maximum penalty of three months’ imprisonment or a fine
not exceeding $4,500.

SMITH v NEW ZEALAND POLICE [2014] NZHC 2101 [2 September 2014]

located northeast of Featherston, a farm supplies dealer in Featherston and to

Tauherenikau to carry out his community work.

[5] Mr Smith says that his limited licence hinders him from travelling into Masterton or Martinborough for stock sales. Although the limited licence ameliorates the disqualification, it remains a significant issue in terms of Mr Smith’s normal farming activities.

[6] Of principle concern is that the period of disqualification imposed by Judge

Walsh means Mr Smith needs to re-sit his driver’s licence upon the completion of the

12 month and one day period of disqualification.

[7] Mr Smith has one previous conviction for driving with excess breath alcohol in 2007.

Background

[8] On 9 May 2014 at 11.35 pm Mr Smith was driving in Featherston. He was stopped by the police due to the manner of his driving. Police carried out breath test procedures and Mr Smith returned a positive evidential breath test of 919 micrograms per litre of breath.

[9] On 7 July 2014 Mr Smith applied for a limited licence. That application was granted by Judge Morris.

Judge Walsh’s decision

[10] Judge Walsh noted Mr Smith’s reading was 919 micrograms of alcohol per litre of breath and that on the previous occasion he was convicted, in 2007, Mr Smith’s reading was 889 micrograms of alcohol per litre of breath.

[11] Judge Walsh took into account Mr Smith’s early guilty plea and his

acceptance of responsibility for his offending.

[12] Judge Walsh convicted Mr Smith and then imposed the penalties which I

have described in paragraph [2] of this judgment.

Legal principles governing an appeal

[13] Prior to the commencement of the Criminal Procedure Act 2011, appeals against sentence were governed by s 121 of the Summary Proceedings Act 1957. Section 250 of the Criminal Procedure Act 2011…

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 Smith v Police

Details

AGLC: Smith v Police [2014] NZHC 2101
Case: [2014] NZHC 2101
Decision Date: 2 September 2014

CaseChat Overview and Summary

In the High Court of New Zealand, Paul Victor Smith appealed against the length of his disqualification from driving imposed by the Masterton District Court. Smith was disqualified from holding or obtaining a driver’s licence for a period of 12 months and one day, in addition to being sentenced to 250 hours of community work. Smith argued that the length of the disqualification was excessive, particularly considering his need to travel for work as a farmer. The court needed to determine whether the period of disqualification imposed by the Masterton District Court was manifestly excessive and warranted an appeal under the Criminal Procedure Act 2011.

The court considered the legal principles governing an appeal, specifically Section 250 of the Criminal Procedure Act 2011, which requires the appeal court to allow the appeal if there is an error in the sentence and a different sentence should be imposed. The court noted that not every error in a sentence will result in a successful appeal, and that the appeal court should consider whether the error is material and whether the sentence imposed is within range. The court also considered the purpose of disqualifying drivers convicted of driving with excess blood or breath alcohol, which is to protect other road users rather than punish the defendant.

After considering the evidence and arguments presented, the court found that the period of disqualification imposed by the Masterton District Court was manifestly excessive. The court found that the period of disqualification was above the normal range of nine to 12 months’ periods of disqualification normally imposed on persons convicted of a second offence of driving with excess breath or blood alcohol. The court also found that the period of disqualification would effectively be more punitive than protective of other road users, given Smith's personal circumstances as a farmer. The court allowed the appeal against the period of disqualification and imposed a period of disqualification of 11 months from 5 June 2014.

Orders