Stewart v Police - [2017] NZHC 2775

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-404-282 [2017] NZHC 2775

BETWEEN
CORDELIA STEWART

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 31 October 2017

Counsel:

C C Watkins for Appellant
D S Houghton for Respondent

Judgment:

13 November 2017

JUDGMENT OF BREWER J

This judgment was delivered by me on 13 November 2017 at 12:30 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:
Clare Watkins (Auckland) for Appellant
Meredith Connell (Auckland) for Respondent

STEWART v POLICE [2017] NZHC 2775 [13 November 2017]

Introduction

[1] On 21 July 2017, Judge EM Thomas sentenced Ms Stewart on the following charges:1

• Possession of methamphetamine utensils;2

• Driving while impaired;3

• Operating a vehicle carelessly (three charges);4

• Dangerous driving;5 and

• Driving while suspended.6

[2] The sentence imposed by the Judge was 12 months’ supervision.7 He also disqualified Ms Stewart from holding or obtaining a drivers licence for two years.8

[3] Ms Stewart appeals the two years’ disqualification period. It is, she submits, manifestly excessive.

Background

[4] Ms Stewart has had considerable problems with methamphetamine. There was a spate of offending in 2010 because of her addiction to the drug. It was in that year that Ms Stewart incurred her single previous disqualification from driving. She was given the mandatory minimum period of disqualification of six months on a charge of
driving while impaired.9

1      Police v Stewart [2017] NZDC 23392.
2      Misuse of Drugs Act 1975, s 13(1)(a).
3      Land Transport Act 1998, s 57A(1).
4      Land Transport Act, s 37(1).
5      Land Transport Act, s 35(1)(b).
6      Land Transport Act, s 32(1)(c).
7 At [23].
8 At [24].
9      Land Transport Act, s 57A(2)(b).

[5] In 2015, methamphetamine again brought Ms Stewart to the attention of the

Police. On 13 October 2015, she was found to possess methamphetamine utensils.

[6] On 16 October 2015, Ms Stewart drove while impaired because of methamphetamine. Ms Stewart drove on Tamaki Drive erratically, continually crossing the centre line and then returning over to the left bus lane, narrowly missing other vehicles.

[7] On 24 January 2016, Ms Stewart drove her motor vehicle dangerously. She drove in Wellsford on the wrong side of the road, causing oncoming drivers to take evasive action in order to avoid head-on collisions.

[8] On 15 March 2016, Ms Stewart drove again, this time on State Highway 16 at

Pt Chevalier. Ms Stewart passed through a series of road works and hit the centre concrete barrier. Ms Stewart did not stop but continued driving erratically, nearly hitting other drivers. Ms Stewart was fortunate to be charged only with operating a vehicle carelessly.

[9] On 6 June 2016, Ms Stewart was driving on Tamaki Drive when she veered to the wrong side of the road and applied her brakes heavily before mounting the footpath and colliding with a pedestrian-crossing pole. Ms Stewart was again fortunate to be charged only with operating a vehicle carelessly.

[10] On 24…

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: [2017] NZHC 2775
Decision Date: 13 November 2017

CaseChat Overview and Summary

The case of Stewart v Police involves an appeal by Cordelia Stewart against her disqualification from holding or obtaining a driver's licence for two years. Stewart was sentenced for multiple driving-related offences, including possession of methamphetamine utensils, driving while impaired, operating a vehicle carelessly, dangerous driving, and driving while suspended. The primary issue in the appeal was whether the two-year disqualification period was manifestly excessive. The appeal was heard and determined by Brewer J on 13 November 2017.

The court considered whether the sentence was manifestly excessive and whether a different sentence should be imposed, as per the Criminal Procedure Act 2011. The appellant argued that the two-year disqualification period was manifestly excessive, particularly as there was no prior history of driving offences, and the seriousness of the current offences related more to inattention rather than intentional bad driving. The court also examined relevant case law and statutory provisions, including the statutory minimum disqualification period for driving with excess breath alcohol, which is one year and one day. The court noted that while there was jurisdiction to impose cumulative periods of disqualification, the better and more principled approach was to make them concurrent, with the period of disqualification for the second offence being longer to reflect the aggravating features.

After considering the submissions and relevant case law, the court concluded that the two-year disqualification period was indeed manifestly excessive. The court acknowledged the need to safeguard the public from a person whose methamphetamine addiction results in erratic driving but also recognised Stewart's efforts to address her addiction through rehabilitation and a defensive driving course. The court substituted the original two-year disqualification with concurrent periods of 18 months for driving while impaired, six months for dangerous driving, and six months for driving while suspended.

The court allowed the appeal and quashed the original two-year disqualification period. The final orders substituted the two-year disqualification with concurrent periods of 18 months for driving while impaired, six months for dangerous driving, and six months for driving while suspended.

Orders