Vorster v Police - [2015] NZHC 2930

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-000281 [2015] NZHC 2930

BETWEEN
PHILLIP VORSTER

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 23 November 2015

Appearances:

T Fitzgibbon for Appellant
K Muirhead for Respondent

Judgment:

23 November 2015

ORAL JUDGMENT OF WYLIE J

Introduction

[1] This is an appeal from two sentences of disqualification from holding a driver’s licence, one indefinitely and the other for six months, imposed by Judge L I Hinton in the District Court at North Shore on 11 August 2015.

[2] The appellant, Mr Vorster, pleaded guilty to one charge of refusing blood – a third or subsequent offence, and to another charge of driving while disqualified – also a third or subsequent offence. In respect of the offence of driving while disqualified, he was sentenced to six months’ disqualification. In respect of the offence of refusing blood for a third or subsequent time, he was disqualified from holding a driver’s licence indefinitely.

[3] Mr Vorster appeals the disqualifications imposed.

VORSTER v NZ POLICE [2015] NZHC 2930 [23 November 2015]

Factual background

[4] The summary of facts produced at the District Court hearing is accepted by

Mr Vorster. In short, he was suspended from driving as from 31 August 2014 until

29 November 2014 because he had excess demerit points. Nevertheless, at about

2.10am on Wednesday 10 September 2014 Mr Vorster was the driver of a motor vehicle on the state highway near Te Atatu. The front right tyre of his car blew out, and as a result he came to a stop in one of the lanes on the motorway. When the police attended, Mr Vorster was exhibiting signs of recent alcohol intake. He appeared agitated and paranoid. Compulsory impairment tests produced an unsatisfactory result. The police then required Mr Vorster to submit a sample of his blood for analysis. He refused to do so, stating that he didn’t like needles in his arm. Mr Vorster also stated that his license was suspended and that he had smoked something before driving.

[5] Mr Vorster was then charged with refusing to submit a blood specimen having been required to do so by an enforcement officer under s 72 of the Land Transport Act 1998. That is an offence pursuant to s 60(1)(a) of that Act, and it is subject to a maximum penalty of two years’ imprisonment or a $6,000 fine, and to
one or more years’ disqualification.1

[6] Mr Vorster was also charged with driving a motor vehicle while his license was suspended for a third or subsequent time. This is an offence pursuant to s
32(1)(c) of the Act, and again it is punishable by a sentence of two years’

imprisonment or a fine of $6,000, and to one or more years’ disqualification.2

Judge’s Sentencing Notes

[7] Judge Hinton took into account the fact that Mr Vorster was, at the time of the offending, serving a sentence of community detention, and that he had previous relevant convictions in 2010 and 2014. The Judge…

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 Vorster v Police

Details

AGLC: Vorster v Police [2015] NZHC 2930
Case: [2015] NZHC 2930
Decision Date: 23 November 2015

CaseChat Overview and Summary

In the case of Vorster v Police, Phillip Vorster appeals the sentences of disqualification from holding a driver’s licence, one indefinitely and the other for six months, imposed by Judge L I Hinton in the District Court at North Shore on 11 August 2015. Mr Vorster pleaded guilty to charges of refusing blood for a third or subsequent offence, and driving while disqualified for a third or subsequent offence. The primary legal issue before the court was whether the sentences imposed by Judge Hinton were manifestly excessive and whether a different sentence should be imposed. The court considered the sentencing principles under the Criminal Procedure Act 2011 and the relevant provisions of the Land Transport Act 1998. The court found that the Judge failed to consider an order under s 65A of the Land Transport Act, which requires the imposition of a sentence for an alcohol interlock licence disqualification in certain circumstances. The court held that s 65A applied in Mr Vorster’s case, and that the imposition of an alcohol interlock licence disqualification would be less restrictive and more appropriate than the sentences imposed by Judge Hinton. The court quashed the orders for disqualification made by Judge Hinton and imposed a sentence of an alcohol interlock licence disqualification in accordance with s 65A(2) of the Land Transport Act. In all other respects, the sentences imposed by Judge Hinton were upheld.

Orders