Timbrell v Police - [2018] NZHC 2397

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2018-463-000076

[2018] NZHC 2397

BETWEEN
WARWICK PAUL TIMBRELL

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 29 August 2018

Appearances:

C A Gentleman for Appellant S J P Davison for Respondent

Judgment:

12 September 2018

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 12 September 2018 at 11.00 am
pursuant to R 11.5 of the High Court Rules Registrar / Deputy Registrar Date……………………

TIMBRELL v NEW ZEALAND POLICE [2018] NZHC 2397 [12 September 2018]

Introduction

[1] Warwick Paul Timbrell pleaded guilty to one charge of driving with excess breath alcohol (third or subsequent) on 3 May 2018.1 At sentencing on 1 August 2018, Judge Bidois refused Mr Timbrell’s application for a community-based sentence under s 94 of the Land Transport Act 1998. Instead, he disqualified Mr Timbrell from holding or obtaining a driver’s licence for 12 months and one day and fined him $700 plus costs.

[2] Mr Timbrell appeals the disqualification on the ground that the Judge took too narrow an approach to the scope of s 94 in concluding that it did not apply to Mr Timbrell’s case.

District Court decision

[3] Mr Timbrell was the subject of a random stop and produced a moderate breath alcohol level when tested (477). He had two previous convictions for driving with excess breath or blood alcohol.

[4] Conviction for a third of subsequent offence of driving with excess breath alcohol carries a mandatory disqualification of 12 months and 1 day. Mr Timbrell’s counsel sought a community-based sentence under s 94 on the basis that Mr Timbrell was liable to lose his employment if disqualified. Although he was not prohibited from obtaining a limited licence, the 28-day stand-down period would still result in him losing his employment. Loss of employment would cause financial hardship.

[5]The Judge refused the application, saying:

My approach to these matters, Mr Timbrell, is that I have recently had a number of applications filed under s 94 for drink drive. You are not a recidivist disqualified driver because you have not been disqualified for some time and previous disqualifications have been complied with. In my view, the s 94 is not specifically, but particularly, aimed at those who are on the treadmill of just continuously disqualified when further disqualifications have to be imposed at the end of an expiry date of a current qualification. This is not the case. These s 94 applications are made for drink driving, third or subsequent. Every time we have one we have to go through the s 94 exercise. I think that would be wrong in principle. I have denied or refused previous s 94

1 Land Transport Act 1998, s 56(1).

applications for drink driving and I do not see that this is the treadmill type case that s 94 was specifically aimed at which relates to the disqualified driver.

I accept that there is discretion or that you…

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 Timbrell v Police

Details

AGLC: Timbrell v Police [2018] NZHC 2397
Case: [2018] NZHC 2397
Decision Date: 12 September 2018

CaseChat Overview and Summary

The case of Timbrell v Police, heard in the High Court of New Zealand, involves Warwick Paul Timbrell, who pleaded guilty to driving with excess breath alcohol on multiple occasions. The issue before the court was whether the District Court judge had applied the correct legal test in refusing Timbrell's application for a community-based sentence under section 94 of the Land Transport Act 1998 instead of imposing the mandatory disqualification from holding or obtaining a driver's licence. The High Court found that the District Court judge had applied a narrow interpretation of section 94, which was not consistent with previous judicial interpretations and the statutory language. The High Court held that section 94 is not limited to recidivist offenders caught in a cycle of continuous disqualification. Instead, the provision is meant to prevent hardship for offenders who meet the criteria outlined in the statute. Given Timbrell's employment situation and the other mitigating factors, the High Court concluded that a community-based sentence was appropriate in this case. The appeal was allowed, and the matter was remitted to the District Court for re-sentencing.

Orders