Taylor v Police - [2014] NZHC 1330

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

CRI-2014-406-000006 [2014] NZHC 1330

BETWEEN
BARRY PHILLIP FRANK TAYLOR

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 13 June 2014

Counsel:

Appellant in person
A L Mills for Respondent

Judgment:

13 June 2014

JUDGMENT OF COLLINS J

Introduction

[1] The question I have to consider is whether finite sentences of disqualification from driving imposed on Mr Taylor on 1 July 2013 were made in error, and if so, whether different sentences should be imposed.

[2] This question arises because Mr Taylor has appealed out of time a sentence in which he was disqualified indefinitely and at the same time disqualified for a finite period of three years commencing 1 July 2013.

[3] I am satisfied Mr Taylor should be given leave to appeal out of time and that his appeal should be partially allowed.

TAYLOR v NEW ZEALAND POLICE [2014] NZHC 1330 [13 June 2014]

Context

[4] On 1 July 2013 Mr Taylor was sentenced in relation to the following charges:

(1)Driving with excess blood alcohol on 15 February 2013 having been convicted at least twice previously of a qualifying offence.1

(2)Driving with excess blood alcohol on 16 February 2013 having been convicted at least twice previously of a qualifying offence.2

(3) Careless driving on 16 February 2013.

[5] At the time he was sentenced Mr Taylor had five convictions for driving with excess breath or blood alcohol and one conviction for refusing to provide a blood specimen when required to do so by a law enforcement officer. Those convictions were on:

(1) 26 September 1983 – Driving with excess blood alcohol; (2) 5 September 1984 – Driving with excess blood alcohol;
(3)3 May 2001 – Driving with excess blood alcohol on a third or subsequent occasion;

(4)22 April 2004 – Driving with excess blood alcohol on a third or subsequent occasion; and

(5)29 July 2008 – Refusing to provide an enforcement officer with a blood specimen. This offence occurred on 15 March 2008.

[6] Mr Taylor was sentenced to six months’ imprisonment for the 15 February

2013 excess breath alcohol offence and 12 months’ imprisonment for the

16 February 2013 excess blood alcohol offence. These sentences were cumulative.

[7] When sentencing Mr Taylor the District Court Judge said the following about home detention:3

… I do not consider that it is appropriate to release you on home detention. I say that because you received that sort of sentence on the last occasion and here you are again with two consecutive offences of the same nature, so I do not consider at this point in time that it is appropriate to release you on home detention. I will however grant you leave to apply for a substituted sentence during the course of your term of imprisonment, depending on how you perform.

[8] When disqualifying Mr Taylor from driving the District Court Judge said the following about the periods of disqualification that were being imposed:4

In addition, on the two excess breath alcohol…

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: [2014] NZHC 1330
Decision Date: 13 June 2014

CaseChat Overview and Summary

Barry Phillip Frank Taylor appealed against a sentence imposed by the District Court, challenging the imposition of an indefinite and finite driving disqualification. The High Court of New Zealand reviewed the appeal, focusing on whether the District Court made an error in imposing a finite disqualification period and failing to direct the appellant to attend an assessment centre as required by statute. The court found that the District Court judge erred in imposing a finite sentence of disqualification and in granting leave for the appellant to apply to substitute his sentence of imprisonment for one of home detention. The court quashed the order imposing a finite period of disqualification and directed that Mr Taylor attend an assessment centre as required by statute. The indefinite disqualification from driving remains in place until the New Zealand Transport Agency determines that Mr Taylor is fit to hold a driver’s licence.

Orders