Vandenbrink v Police - [2021] NZHC 1630

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2021-404-139

[2021] NZHC 1630

BETWEEN
MARTIN PAUL VANDENBRINK

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 28 June 2021

Appearances:

M Timmins for the Appellant

A Mackenzie for the Respondent

Judgment:

2 July 2021

JUDGMENT OF CAMPBELL J

This judgment was delivered by me on 2 July 2021 at 3:00 pm

Registrar/Deputy Registrar

VANDENBRINK v NEW ZEALAND POLICE [2021] NZHC 1630 [2 July 2021]

Introduction

[1] Mr Vandenbrink pleaded guilty to a charge of driving while impaired.1 He applied to be discharged without conviction. In the District Court, Judge B A Gibson declined his application. He convicted Mr Vandenbrink, fined him and disqualified him from driving for six months.2

[2] Mr Vandenbrink appeals. Primarily, he seeks to be discharged without conviction under s 106 of the Sentencing Act 2002. Alternatively, he asks for a community-based sentence under s 94 of the Land Transport Act 1998, in substitution for disqualification.

Facts

The offending

[3] On 20 August 2020, at 3.25 pm, Mr Vandenbrink was driving his car on an Auckland motorway at 120 kilometres per hour. The speed limit was 100 kilometres per hour. A Police officer observed the speeding, and then saw Mr Vandenbrink change lane without indicating. The officer stopped Mr Vandenbrink, and when speaking to him noticed a strong smell of cannabis.

[4] Mr Vandenbrink failed to complete an impairment test in a satisfactory manner. Later ESR results confirmed the presence of THC in Mr Vandenbrink’s blood. A search of Mr Vandenbrink’s car revealed small amounts of cannabis, MDMA and LSD.

[5] Mr Vandenbrink was charged with driving while impaired. He was also charged for possession of the drugs, but those charges were withdrawn after Mr Vandenbrink successfully completed the requirements of a Police diversion scheme.

1 Land Transport Act 1998, s 57A(1). Penalty: three months’ imprisonment or fine not exceeding
$4,500, and disqualification for six months or more.
2 Police v Vandenbrink [2021] NZDC 5707.

Events after the offending

[6] As noted, Mr Vandenbrink pleaded guilty to the charge of driving while impaired. He expressed genuine remorse and took steps to try to deal with any issues he has with drugs by undertaking an eight-week drug and alcohol counselling course. He also completed a four-week defensive driving course.

[7] Mr Vandenbrink presented character references which indicated he is well respected. He made a donation of $510 to a local surf lifesaving club. He volunteers at two such clubs.

Consequences of convictions for Mr Vandenbrink

[8] Mr Vandenbrink made an affidavit for the sentencing in the District Court. He said he works as a service technician for a coffee company. Part of his job involves driving to various businesses around Auckland. He said that if he were unable to drive he would be unable to fulfil his employment obligations and would therefore lose his employment.

[9] Mr Vandenbrink explained that his employer has a strict drug policy. He exhibited a…

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: [2021] NZHC 1630
Decision Date: 2 July 2021

CaseChat Overview and Summary

Martin Paul Vandenbrink appeals against his conviction and sentencing for driving while impaired. Vandenbrink pleaded guilty and applied for a discharge without conviction, which was declined by Judge B A Gibson in the District Court. Vandenbrink was convicted and fined, and disqualified from driving for six months. Vandenbrink appeals on the basis that the consequences of a conviction are out of all proportion to the gravity of the offence and seeks to be discharged without conviction under s 106 of the Sentencing Act 2002. In the alternative, he asks for a community-based sentence under s 94 of the Land Transport Act 1998, in substitution for disqualification. Vandenbrink was speeding and changing lanes without indicating when he was stopped by police who detected a strong smell of cannabis. Vandenbrink failed an impairment test and later ESR results confirmed the presence of THC in his blood. Vandenbrink has taken steps to address his offending, including undertaking an eight-week drug and alcohol counselling course and a four-week defensive driving course. Vandenbrink presented character references and made a donation to a local surf lifesaving club. Vandenbrink argued that the consequences of a conviction would be out of all proportion to the gravity of the offence, given the risk of losing his current employment and difficulty in finding future employment. Campbell J disagreed, finding that the risk of losing his current employment was low, and that any difficulty in finding future employment was a consequence of losing eligibility under the Clean Slate Act. Campbell J also found that it would not be inappropriate to order that Vandenbrink be disqualified, as per s 94 of the Land Transport Act. The appeal is dismissed.

Orders