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Whitley v Police

Whitley v Police

Case [2016] NZHC 1025 18 May 2016

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-000084 [2016] NZHC 1025

BETWEEN
CHRISTOPHER EDWARD WHITLEY

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 16 May 2016

Appearances:

D M M Dickinson for Appellant
S L McColgan for Respondent

Judgment:

18 May 2016

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie on 18 May 2016 at 4.15 pm
pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:…………………………

Solicitors/counsel:
D M M Dickinson, Auckland
Crown Solicitor, Auckland

WHITLEY v NEW ZEALAND POLICE [2016] NZHC 1025 [18 May 2016]

Introduction

[1] On 17 February 2016, the appellant, Mr Whitley, was sentenced by Judge G A Fraser in the District Court at Auckland, to 22 and a half months’ imprisonment, on three charges of driving while disqualified (third and subsequent).

[2] Mr Whitley appeals against the sentence arguing that it was manifestly excessive and/or that Judge Fraser failed to grant him leave to apply for home detention.

Background facts

[3] On 13 January 2015, Mr Whitley appeared in the Auckland District Court. He was convicted on a charge of driving while disqualified, and he was disqualified from driving for a further period of one year as from that date. On 8 July 2015, Mr Whitley again drove while disqualified. He made an application under s 94 of the Land Transport Act 1998 and he was convicted and sentenced to community work and intensive supervision. The earlier disqualification from driving remained in place.

[4] Notwithstanding the disqualification, on Wednesday 25 November 2015, Mr Whitley was apprehended while he was driving his motor vehicle on Royal Road. When he was spoken to by the police, he admitted that he was disqualified. In explanation, he said that he was driving because he was visiting his mother.

[5] At 10.15pm on 1 January 2016, Mr Whitley was again apprehended by the police while driving. When he was spoken to, he was cooperative. Again he admitted to driving while disqualified. He stated that he was driving his two children to their mother’s house.

[6] Finally, on 8 January 2016, Mr Whitley was stopped by the police while he was driving in central Auckland. When he was spoken to by the police, he stated that he knew that he was a disqualified driver, but that he was looking for his sister.

[7] There is no suggestion in the summaries of fact that public safety was in issue at any stage.

[8] Mr Whitley has since filed an affidavit. It seeks to explain the background from his perspective.

(a) Between the November 2015 and the January 2016 offending, there was a homicide at the family home that Mr Whitley and his 13 year old daughter lived in. His cousin was staying with him, along with a friend. The friend was assaulted and stabbed, and another person was badly injured. The friend died in front of Mr Whitley and his daughter.

(b) Mr Whitley said that after the homicide, his life “went off the rails”.

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 Whitley v Police

Details

AGLC: Whitley v Police [2016] NZHC 1025
Case: [2016] NZHC 1025
Decision Date: 18 May 2016

CaseChat Overview and Summary

In the High Court of New Zealand, Christopher Edward Whitley, the appellant, brought an appeal against his sentence for three charges of driving while disqualified, arguing that the sentence was manifestly excessive and that the District Court judge failed to grant him leave to apply for home detention. The District Court judge sentenced Mr Whitley to 22 and a half months’ imprisonment. Mr Whitley argued that the sentence was excessive and that Judge Fraser failed to consider granting him leave to apply for home detention. The legal issues in the case were whether the starting point for the sentence was appropriate, whether the cumulative sentences were justified, whether the mitigating factors were adequately considered, and whether the judge erred in not considering Section 94 of the Land Transport Act 1998.

Justice Wylie found that while the starting point adopted by Judge Fraser was appropriate, the six-month uplift for each of the January 2016 offences led to a total sentence that was too high. The court found that the judge was entitled to impose cumulative sentences because the offending was not part of a connected series of events. The court also found that the judge appropriately considered the aggravating and mitigating features of the case, but that a discount should be given for Mr Whitley's guilty pleas. The court found no error in the judge's failure to consider Section 94 of the Land Transport Act 1998.

The court concluded that the sentence imposed by the District Court was manifestly excessive, and that the appeal against sentence should be allowed. The sentence was quashed and replaced with a sentence of 15 months’ imprisonment. The period of disqualification and the post-release conditions imposed by the judge remained in place.

Orders