Smith v Police - [2022] NZHC 1496

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2022-409-59

[2022] NZHC 1496

BETWEEN
JACOB ALLAN SMITH

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 15 June 2022

Appearances:

A L Hollingworth and K E Bucher for Appellant G E R Alloway for Respondent

Judgment:

27 June 2022

Reissued:

1 August 2022

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 27 June 2022 at 2.15 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar
Date……………

SMITH v NEW ZEALAND POLICE [2022] NZHC 1496 [27 June 2022]

Introduction

[1] Jacob Smith was sentenced in the District Court by Judge Couch1 on one charge of driving while disqualified.2 At sentencing Mr Smith applied under s 94 of the Land Transport Act 1998 (the Act) for the Court to substitute the mandatory six month disqualification period with a community-based sentence. The Judge found Mr Smith’s traffic conviction history prohibited the application and fined Mr Smith
$300, ordered him to pay court costs of $130, and disqualified him from driving for the minimum period of six months.

[2] Mr Smith appeals. He says the Judge erred in concluding his traffic history prohibited the s 94 application from being considered on its merits.

The facts

[3] The offending for which Mr Smith was sentenced was unremarkable. He had been disqualified from driving on 24 January 2022 for a period of six months. However, at approximately 8:20 pm on 14 February 2022, he was seen driving into the Christchurch Hospital public carpark before parking and walking into Hagley Park.

[4] Mr Smith’s prior convictions are also relevant to the current appeal as they were held to preclude him from applying under s 94 for a community-based sentence instead of a further disqualification.

[5] On 30 September 2020, Mr Smith committed the offence of carelessly operating a motor vehicle causing injury. On 24 February 2021, he was sentenced to pay reparation of $900 and was disqualified from driving for seven months. On 11 November 2021, Mr Smith drove with excess breath alcohol. He was sentenced on 24 January 2022 to a fine of $350 plus court costs and was disqualified from driving for six months.

1 Police v Smith [2022] NZDC 5464.
2 Land Transport Act 1998, ss 32(1)(a) and 32(2).

The legislation

[6] Section 94 of the Act permits a sentencing judge to impose a community-based sentence instead of a mandatory period of disqualification. Such a decision is made having regard to:3
(i)the circumstances of the case and of the offender; and
(ii)the effectiveness or otherwise of a previous order of disqualification made in respect of the offender; and
(iii)the likely effect on the offender of a further order of disqualification; and
(iv)the interests of the public …

[7] An offender will only be eligible for such a sentence if he or she has previously been the subject of an order for disqualification.4 However, s 94(4) also provides:

(4)This section does not apply…

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 [2022] NZHC 1496
Case: [2022] NZHC 1496
Decision Date: 27 June 2022

CaseChat Overview and Summary

The appellant, Jacob Allan Smith, appeals against his sentence imposed by the District Court for driving while disqualified. He argues the District Court erred in concluding that his traffic history prohibited the application of section 94 of the Land Transport Act 1998 (the Act). The appeal concerns the interpretation of sections 94(4)(b) and 103(2)(d) of the Act. The respondent submits the District Court was correct to find it had no jurisdiction to consider a s 94 application. The appellant contends the District Court should have considered the application on its merits. The court is required to determine whether the District Court erred in concluding it had no jurisdiction to apply s 94. The court found the District Court was wrong to conclude it had no jurisdiction to grant the application under s 94 and the appeal is allowed on that ground. The court found that s 94 is intended to be a circuit breaker. It is clearly not available when the current offence is a specified offence and there is a previous specified offence in the last five years. However, it is available when the current offence is not a specified offence, even if the offender has had two or more specified offences in the last five years and where, as here, they may be completing a period of disqualification on the last specified offence at the time of the s 94 application. The sentence of disqualification is quashed, and the case is remitted back to the District Court to reconsider the application under s 94. It will be entirely for the District Court whether a further period of disqualification is considered inappropriate and a community sentence is substituted, having regard to the matters identified in s 94(1).

Orders