Wadsworth v Police - [2014] NZHC 3302

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2014-404-000345 [2014] NZHC 3302

BETWEEN
NICOLE LOUISE WADSWORTH

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 16 December 2014

Appearances:

L Johnson for the Appellant
RMA McCoubrey for the Respondent

Judgment:

18 December 2014

[RESERVED] JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie on 18 December 2014 at 11.00 am
Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

WADSWORTH v POLICE [2014] NZHC 3302 [18 December 2014]

Introduction

[1] The appellant, Ms Wadsworth, appeals a decision made by Judge S J Coyle in the District Court at Auckland on 7 October 2014, declining an application under s 94 of the Land Transport Act 1998, and instead imposing a further period of disqualification from driving.

Factual background

[2] Ms Wadsworth had been disqualified from driving for a period of six months on 8 May 2014, after pleading guilty to one charge of driving with excess breath alcohol in August 2012.

[3] On 8 July 2014, Ms Wadsworth was stopped while she was driving at State Highway 20 at Onehunga. She was not stopped because of the way in which she was driving. When spoken to by the police, she stated that she was returning from Middlemore Hospital, after visiting a sick relative.

[4] Ms Wadsworth was charged with driving while disqualified pursuant to s 32(1) of the Land Transport Act. The maximum penalty for this offence is three months’ imprisonment or a fine not exceeding $4,500. The court must, in addition, order that the offender is disqualified from driving for a minimum period of six months.

[5] Ms Wadsworth pleaded guilty at her first appearance on 7 August 2014. She appeared for sentence on 7 October 2014. An application was made on her behalf for the Court to impose a community-based sentence instead of a further period of disqualification under s 94. As noted above, that application was unsuccessful.

District Court Decision

[6] Judge Coyle considered the relevant facts. He summarised s 94 and set out the various matters which the Court is required to consider pursuant to s 94(1). He then proceeded to consider each of the considerations identified in s 94(1)(b).

[7] In regard to s 94(1)(b)(ii) – the effectiveness or otherwise of the previous order of disqualification made against Ms Wadsworth – Judge Coyle noted as follows:

[9] The effectiveness of the current order of disqualification has really been minimal. It has not acted as a deterrent to you for further offending and, as I have said to your counsel, this really is just blatant offending during a period in which you knew you were disqualified. It is submitted on your behalf that disqualification has not been effective and the evidence of that, it is submitted, is the very fact that you are before the Court on the charge of driving while disqualified committed only two months after disqualification was imposed.

[10] That submission, in my view, is not one that I…

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 Wadsworth v Police

Details

AGLC: Wadsworth v Police [2014] NZHC 3302
Case: [2014] NZHC 3302
Decision Date: 18 December 2014

CaseChat Overview and Summary

Nicole Louise Wadsworth appeals a decision by Judge S J Coyle in the District Court at Auckland, declining an application under s 94 of the Land Transport Act 1998, and instead imposing a further period of disqualification from driving. Ms Wadsworth had previously been disqualified from driving for six months after pleading guilty to driving with excess breath alcohol in August 2012. She was subsequently charged with driving while disqualified after being stopped by police while driving at State Highway 20 at Onehunga on 8 July 2014. Ms Wadsworth pleaded guilty at her first appearance and applied for a community-based sentence instead of a further period of disqualification under s 94. This application was unsuccessful. The court was required to determine whether Judge Coyle erred in declining the application. The court found that, while some aspects of the judgment could have been better expressed, Judge Coyle's decision was not plainly wrong. The appeal was declined.

Wylie J concluded that the appeal was declined because Judge Coyle's decision, while not perfect in its articulation, was not plainly wrong. The court acknowledged that the appeal against the refusal to grant an application pursuant to s 94 is an appeal against the exercise of a discretion, and that accordingly it must be shown that the sentencing Judge erred in exercising the discretion by taking into account irrelevant considerations, failing to have regard to relevant considerations, making an error in principle, or reaching a decision which is plainly wrong. The court found that while Judge Coyle did not properly analyse the section, the end result was not particularly helpful to Ms Wadsworth. The court further found that while there was some force in Ms Johnson's submission that Judge Coyle erred in the way in which he approached the matter in this case, the decision was not plainly wrong.

Orders