Thompson v Police - [2017] NZHC 2347

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TAURANGA MOANA ROHE

CRI-2017-470-29 [2017] NZHC 2347

BETWEEN
PETER SHANE THOMPSON

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:
26 September 2017

(Heard at Rotorua)

Appearances:

R Treloar for the Appellant
A Shore for the Respondent

Judgment:

26 September 2017

ORAL JUDGMENT OF WOODHOUSE J

Solicitors:
Ms R Treloar, Mason Treloar Harvey, Solicitors, Pukekohe
Ms A Shore, Hollister-Jones Lellman, Office of the Crown Solicitor, Tauranga

THOMPSON v POLICE [2017] NZHC 2347 [26 September 2017]

[1] Mr Thompson appeals against disqualification from driving following conviction on a charge of driving while disqualified on a third or subsequent occasion.

[2] He was sentenced in the District Court at Tauranga by Judge R G Marshall on

5 April 2017.1 This was for driving while disqualified in October 2016. It appears that there were successive adjournments of the sentencing with a view to finding a suitable address for a community based sentence.

[3] Mr Thompson had, on my count, seven previous convictions for driving while disqualified. There are other driving offences. In short sentencing remarks, after reviewing the driving history and the circumstances of the current offence, the Judge sentenced Mr Thompson to community detention for five months and community work of 200 hours, and disqualified him from holding or obtaining a driver licence for one year from 14 March 2018.

[4] The reason for the disqualification commencement date was that there had been three recent convictions for driving while disqualified with successive disqualification periods of either one year or one year and one day. These were sentences of disqualification imposed in February and June 2015 and January 2016. The earlier convictions for driving while disqualified were between 1990 and 1998.

[5] The heart of Mr Thompson’s substantive appeal is that the Judge was not asked to consider whether a community based sentence should be imposed, rather than the disqualification, pursuant to s 94 of the Land Transport Act 1998. There is an issue on this appeal whether Mr Thompson’s counsel in the District Court (not Ms Treloar who appears for him on this appeal) had given advice to Mr Thompson in respect of s 94. I will come back to that.

[6] In relation to the substantive point on the appeal, Mr Thompson also seeks leave to appeal out of time. As noted, he was sentenced on 5 April 2017, but the
notice of appeal was not filed until 9 August 2017.

1 Police v Thompson [2017] NZDC 18758.

[7] In addition to the application for leave, Mr Thompson seeks to rely on an affidavit filed in this Court, partly seeking to explain the delay in bringing the appeal, but also in support of his substantive point in respect of s 94. There is a question whether it should be admitted.

[8] There is one further complication. Mr Thompson in his affidavit says that he does not recall receiving advice from his former counsel of his right to make…

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 Thompson v Police

Details

AGLC: Thompson v Police [2017] NZHC 2347
Case: [2017] NZHC 2347
Decision Date: 26 September 2017

CaseChat Overview and Summary

In the case of Thompson v Police, the appellant, Mr Thompson, appealed against his disqualification from driving following a conviction for driving while disqualified on a third or subsequent occasion. Mr Thompson had seven prior convictions for the same offence. The District Court sentenced him to community detention for five months, community work of 200 hours, and disqualified him from holding or obtaining a driver's license for one year from 14 March 2018. The appeal centred around whether the District Court judge should have considered imposing a community-based sentence instead of disqualification under section 94 of the Land Transport Act 1998. Additionally, Mr Thompson sought leave to appeal out of time, as the notice of appeal was filed after the usual deadline.

The court considered whether Mr Thompson had received advice from his former counsel regarding his right to make an application under section 94. However, the information available was insufficient to determine this conclusively. The court noted that if Mr Thompson had been advised of this right, he would likely have instructed his counsel to make such an application. The court granted leave to appeal out of time, as the reasons for the delay were adequately explained and there would be no prejudice to the respondent.

Ultimately, the court allowed the appeal and quashed the sentences of community detention, community work, and disqualification from holding or obtaining a driver's license. The matter was remitted back to the District Court for resentencing, including consideration of the intended application under section 94 of the Land Transport Act. The appeal was not allowed due to any error by the District Court judge, but rather to provide Mr Thompson with an opportunity to make an application under section 94.

Orders